Misuse of Drugs Act 1971 (Temporary Class Drug) (No. 2) Order 2015

Lord Rosser Excerpts

Monday 7th September 2015 Grand Committee

[The Parliamentary Under-Secretary of State, Department for Transport and Home Office (Lord Ahmad of Wimbledon) (Con)]

My Lords, the order was laid before Parliament on 25 June. As noble Lords will be aware, temporary control legislation is a vehicle which enables us to act relatively swiftly to protect the public. It also provides time for the Advisory Council on the Misuse of Drugs to gather evidence and prepare full advice on the permanent control of such drugs.

The order specifies seven methylphenidate-based new psychoactive substances, including their simple derivatives, as drugs subject to temporary control under Section 2A(1) of the Misuse of Drugs Act 1971. The Government are grateful for the Advisory Council on the Misuse of Drugs’s continued support in informing the Government’s response to emerging new psychoactive substances sold as so-called legal highs. The advisory council’s advice informed the order that we are considering today.

On 31 March, the then Minister for Crime Prevention received a recommendation from the advisory council under the temporary control provisions of the 1971 Act. The ACMD advised that five new psychoactive substances, related to the Class B drug methylphenidate, were being misused and that their misuse was having sufficiently harmful effects to warrant temporary control. This advice was accepted and a temporary order for the five substances came into force on 10 April 2015.

Following the coming into force of that order, the Government are aware that online retailers immediately withdrew those substances from sale and replaced them with a further two closely related substances. This came to light through the advisory council’s considerations in preparation of advice for permanent control. On 16 June, the advisory council provided further advice on the two related substances and recommended that they should be included in this new temporary order. The ACMD continues to gather evidence to support a full report on these compounds.

The previous temporary order made on 10 April lapsed on 27 June, as there was insufficient time for both Houses to approve the order. The new temporary order that we are considering today came into force on 27 June to replace that order. This order specifies all seven methylphenidate-based new psychoactive substances, including their simple derivatives, as drugs subject to temporary control.

The methylphenidate-based substances are highly potent stimulants. One of these substances, ethylphenidate, was marketed online as an alternative to cocaine. Their harms are reported to include anxiety, paranoia, visual disturbance, chest pain and a strong urge to re-dose. Other reported harms include bizarre and violent behaviour, loss of fine motor control and high risk of bacterial infection and local tissue damage from injecting.

One branded formulation, Burst, was reported as causing particular problems in the Edinburgh area, including among injecting drug users, who report reinjecting repeatedly. There has also recently been a report of an outbreak of infections in that area associated with the injecting of new psychoactive substances, believed to involve ethylphenidate.

The National Programme on Substance Abuse Deaths reported five cases in 2013-14 where ethylphenidate was found in post-mortem toxicology, and another two cases where ethylphenidate was implicated in the cause of death during 2013-14. The advisory council recommended that urgent action should be taken due to the extremely potent nature of these compounds. For these reasons, the Minister for Policing, Crime, Criminal Justice and Victims accepted the advisory council’s advice. The order, which is already in force, applies UK-wide to protect the public. It enables enforcement action against suppliers and traffickers while the advisory council prepares full advice on these compounds.

Under the order, front-line officers have additional powers to disrupt the sale of the substances online and in local head shops by targeting retailers who they suspect of selling temporary class drugs—if not other controlled drugs—including seizing their stock for analysis.

The activity is supported by the Home Office forensic early-warning system, which continues to provide added forensic capability to police forces. The order also sends out a clear message to the public, especially to young and vulnerable people, that these compounds are harmful drugs. The Government and the advisory council continue to monitor, through UK and EU drugs early-warning systems, these and other emerging compounds marketed as legal alternatives to controlled drugs.

Of course, until the Government receive the full report on these drugs they will continue to update public health messages to inform the public on drug harms, using the latest evidence gathered from early-warning systems. We know that the law change, on its own, cannot deter all those inclined to use or experiment with these drugs. However, we expect the order to have a notable impact on the availability and, in turn, demand for these drugs, as we saw with other substances.

Noble Lords will remember that methoxetamine was subject to temporary control and subsequently controlled permanently under the 1971 Act. We are aware that, on introduction of the temporary order, online sellers of these compounds immediately removed them from sale. Anecdotal reports from Edinburgh, where these compounds were first reported as being injected, also suggest a reduction in the number of people seeking treatment as a result of harms suffered from injecting them.

In conclusion, Parliament’s approval of the order will ensure that it remains in force to reduce the threat to the public posed by these temporary class drugs for up to 12 months, while the advisory council prepares full advice on harms in relation to permanent control. I beg to move.

[Lord Rosser (Lab)]

My Lords, I thank the Minister for his explanation of the purpose and reasons for this order, which we support. As he said, the order is a temporary class drug order that can be made if the substance or, in this case, substances are not class A, B or C drugs, and if the Secretary of State has either consulted the Advisory Council on the Misuse of Drugs or received a recommendation from the ACMD that a temporary class drug order should be made. The drug also has to be one that is being, or is likely to be, misused, and that misuse is having or is capable of having harmful effects.

The Explanatory Memorandum sets out the evidence in support of the necessary requirements that have to be met to make this order—which, as the Minister said, came into force towards the end of June and can remain in force for a maximum of 12 months. Having been made, the order requires a resolution of both Houses within 40 sitting days if it is to remain in force.

It would be helpful if the Minister could say why it was not possible for the Government to find time for this order to be discussed in this House between 25 June, when it was laid before Parliament, and 22 July, nearly a month later, when the House rose for the Summer Recess, particularly bearing in mind that the order came into force on 27 June. It is now nearly some two and a half months after it came into force that we are able to consider the order. It would be helpful to hear the Minister’s response on that point.

One of the purposes of such a temporary order is that it enables a new psychoactive substance or substances to be brought under the temporary control of the Misuse of Drugs Act 1971, while, as the Minister said, the Advisory Council on the Misuse of Drugs can make a full assessment of its harms for consideration for permanent control as a drug under that Act. The Explanatory Memorandum states that the provisions of this order and its consequences will be communicated to key stakeholders and the wider public, especially young people. Presumably this has now been done.

Who are deemed to be the key stakeholders and do they differ from those listed as being consulted in paragraph 8 of the Explanatory Memorandum, headed “Consultation Outcome”? Are, for example, the businesses selling these substances in the legal-highs market, referred to in paragraph 10 of the Explanatory Memorandum, regarded as key stakeholders and thus advised of the terms of this order?

Although the Minister addressed the point in his opening comments, since the order has been in force for nearly two and a half months, is there any information on the impact that it has had on the level of use and availability of the two further related substances now subject to this order that were not included in the previous order? Might implementation and enforcement of the order be resulting, in respect of those two further substances, in the risks set out in paragraph 6.1 of the impact assessment materialising? Those risks are of course in respect of chemical derivatives or alternative new psychoactive substances imitating their effects being introduced in an attempt to circumvent the temporary drug control.

[Lord Ahmad of Wimbledon]

My Lords, first, I thank the noble Lord, Lord Rosser, for his support on this matter. This issue impacts society as a whole and when we are considering such matters it is important not only to discuss them but, where possible, that agreement is reached. We are looking at this particular issue and the challenges that psychoactive substances pose generally as a major challenge for society as a whole.

The noble Lord raised the issue of scheduling and timetabling. While I do not have a detailed assessment, based on my own previous roles in government, including as a government Whip, I can say that this is scheduled according to other parliamentary business and is discussed through the usual channels. The important point to bear in mind is that we proceed with this order now, as the noble Lord acknowledged, and do so in a timely fashion.

Turning to the noble Lord’s question about communication—again, a very important point—included within “key stakeholders” are the ACMD, the Department of Health, BIS, industry and the MHRA. It is important that all key stakeholders that were part of the initial consultation are included in the communications that have taken place. The noble Lord also asked about the additional two substances or derivative products that were subsequently included. I will write to him about specific issues or evidence that have been raised.

I also stress that tackling the legal high market continues to be an important priority for this Government and the advisory council’s work programme. Noble Lords will be aware of the Government’s action to ban the supply of psychoactive substances for human consumption for their psychoactive effect through the Psychoactive Substances Bill. As noble Lords are aware, the Bill completed its passage through this House before the Summer Recess and has now been introduced in the House of Commons. When in force, the Bill will give powers to the police and other enforcement agencies to enable them to disrupt the supply of these dangerous and harmful compounds, including tackling their availability on the internet.

The legislative action is supportive of the long-term strategic objectives—many of which I know noble Lords share—set out in the Government’s action plan: to reduce demand by raising awareness of the harms of psychoactive substances; to make it difficult to obtain and supply those that pose risks to health; and to ensure that statutory services are able to effectively provide treatment and support recovery. Our balanced approach to tackling psychoactive substance misuse includes the development of toolkits on prevention, and programmes on treatment such as NEPTUNE. We have also taken action in response to the New Psychoactive Substances Review Expert Panel’s recommendations to help local areas prevent and respond to the use of new psychoactive substances, including guidance on taking action against the head shops I mentioned earlier. We have acted swiftly on the advisory council’s advice to make the temporary class drug order presented today to protect the public from the potential harms of these substances.

We are committed to a drugs policy that is informed by evidence of harm and the advisory council’s expert advice. Our duty as a Government is to consider this advice in light of all the information made available by drugs early warning systems to ensure that our response is proportionate to the threat posed by emerging drugs. As I am sure noble Lords will acknowledge, the UK continues to lead international action to tackle the emergence of new psychoactive substances. Our efforts, supported by key partners, led to the international control of mephedrone by the UN in March this year. We continue to share best practice on a balanced approach, including recently sharing our world-leading treatment guidance with our international partners. We also continue to work with our key partners on a list of new compounds that are causing concern, with a view to the UN subjecting these compounds to international control in due course. I hope that noble Lords will find that this legislative measure is conducive to ensuring that ultimately the public are protected from the harms of these new psychoactive substances, and I therefore again commend the order to noble Lords.

[Lord Rosser]

Before the noble Lord sits down, may I come back to my question about who the key stakeholders are? Paragraph 8 refers to who is consulted. Paragraph 9 states:

“The provisions of this Order and its consequences will be communicated to key stakeholders and the wider public, especially young people”.

Paragraph 10 makes reference to,

“those businesses selling these substances in the ‘legal highs’ market”.

Does the reference to the key stakeholders—that is, those who will be advised of the provisions of this order and its consequences—include, for example, those businesses selling these substances in the legal highs market, referred to in paragraph 10 of the Explanatory Memorandum?