Schedule 16
Police Reform and Social Responsibility Bill
5:45 pm

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Julian Huppert (Cambridge, Liberal Democrat)

I beg to move amendment 3, in schedule 16, page 175, line 22, leave out ‘two’ and insert ‘four’.

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Christopher Chope (Christchurch, Conservative)

With this it will be convenient to discuss the following: amendment 4, in schedule 16, page 175, line 29, at end add

Amendment 5, in schedule 16, page 175, line 29, at end insert—

Amendment 6, in schedule 16, page 175, line 29, at end insert—

Amendment 615, in schedule 16, page 175, line 29, at end insert—

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Julian Huppert (Cambridge, Liberal Democrat)

We move on to the interesting topic of how one controls drugs that are susceptible to misuse, and we will come on to discuss scientific evidence and  the role of the Advisory Council on the Misuse of Drugs. As Members can tell from the small numbers, the amendments were tabled well in advance. In the intervening time, I have had several discussions with the Minister, for which I thank him, and we have seen the publication of the draft protocol. I am pleased to see that there is good progress in the protocol, which will very much help on the concerns that have been raised. Amendment 3 need not detain us, as it is a tidying-up amendment, so I will start by discussing amendments 5 and 6.

Amendment 5 relates to the idea that we will have temporary orders, and we all accept that there is an advantage in having a temporary system. Sometimes there will simply not be sufficient scientific evidence to make a permanent decision, but there will be a sense that action needs to be taken on the basis of preliminary data, and I understand that argument. Amendment 5 would require the Secretary of State to consult the ACMD before deciding whether to make a temporary class drug order. I was extremely concerned about that.

That concern was also raised by Professor Les Iversen in his evidence. In answer to Question 164 he said,

“I would have liked to see that written into the statutory requirements; it is not at the moment.”––[Official Report, Police Reform and Social Responsibility Public Bill Committee, 20 January 2011; c. 95, Q164.]

In reply to Question 161, he similarly said that

“we hope that Ministers would consult us beforehand, but that has not been written into the Act. I am not quite sure why, but it has not been.”––[Official Report, Police Reform and Social Responsibility Public Bill Committee, 20 January 2011; c. 93-94, Q161.]

That was the initial setting for my concern, because it would be worrying if Ministers had the freedom to make those decisions as a quick, gut-reaction response to headlines in particular newspapers, such as the Daily Mail. Over many decades, we have seen more than enough such gut reactions that have not been evidence-based or scientifically based.

Having said that, I am delighted to see the draft protocol. I realise that members of the Committee have seen it, but members of the public have not, so they will have to accept some of what we say as read. I have received clarification that it is at least possible to quote from the draft protocol in our discussion, and I am sure that Members will correct me if I stray beyond that. There is a section in the protocol that I find encouraging. It states:

“Advice from the ACMD…is key. It is therefore the full intention of the Government to consult and be advised by the ACMD before a temporary class drug order and make associated amendments to the misuse of drugs regulations.”

I find what the Government are trying to do encouraging, and I take great comfort in that section. However, I would be grateful for the Minister’s comments on why he decided to include it in the memorandum but not in the Bill. Personally, I agree with Les Iversen that it would be preferable to see it in the Bill, and I look forward to the Minister’s comments. In any case, I am grateful to see it in the memorandum.

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Stephen McCabe (Birmingham, Selly Oak, Labour)

On a simple point of clarification regarding amendment 4, I wonder why the hon. Gentleman is not satisfied that the Minister could make a decision based on the fact that the

“misuse is having, or is capable of having, harmful effects”.

The amendment would add the words,

“sufficient to constitute a social problem”.

Will he explain the thinking behind the amendment?

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Julian Huppert (Cambridge, Liberal Democrat)

I will be delighted to. I should have clarified this: the logic of the matter meant it made more sense to speak to the amendments in a different order. I will explain exactly where that wording came from and why it is there.

I am encouraged about the issue addressed in amendment 5. Amendment 6 would require the Secretary of State, if the situation was so serious that she was going to make a temporary order, to ask the ACMD to start doing the longer piece of work that would be required to establish what the sensible rules ought to be and to take scientific and sociological advice to work out whether a drug should be moved on. I do not think any of us would want to see substances sitting on the temporary list for long—it is temporary, and we should either move things off it if it turns out that there are no problems, or move them on to become class A, B or C.

Again, I am encouraged by the protocol, which responds to the problem addressed by the amendment. It states:

“In circumstances where a ‘temporary class drug order’ is laid by the Home Secretary, the Home Secretary will make a formal referral to the ACMD to undertake with immediate effect, a full assessment pursuant under section1(2) of the 1971 Act.”

In both this and the previous case, it goes on to give more detail on how it might work. I am therefore delighted to see the issue of amendment 6 dealt with in the memorandum. Again, I would be grateful if the Minister answered why it is better for it to be in the memorandum but not in the Bill. I am sure that he will be able to comment on that.

The Minister has said that the memorandum will be made available to the public and laid in the Libraries of both Houses, which would be helpful. While I have no concerns about this particular Minister, the question is about what happens if a hypothetical future Minister who is not as enlightened as the current one comes along. How can we be sure that they will not change the memorandum in a way that causes the statutory protections that we would like to see to vanish? I realise that it is difficult for the Minister to conceive of future Ministers who would behave in such an abhorrent way, but I am sure that he will able to comment on that.

I am delighted that amendment 4 was picked up earlier. It is a reference to the original phraseology in the 1971 Act. Section 1 of that Act, which set up the ACMD, states:

“It shall be the duty of the advisory council to keep under review the situation in the United Kingdom with respect to drugs which are being or appear to them likely to be misused and of which the misuse is having or appears to them capable of having harmful effects sufficient to constitute a social problem”.

The extra words proposed in amendment 4 are in the original Act, and they apply to drugs in the way that the Act was intended. Interestingly, the phraseology in the Bill is almost exactly the same—the punctuation is slightly different; I assume that styles have evolved over the past few decades—but it leaves out the issue of causing a social problem. I am intrigued as to whether this is a serious issue. Is there an understanding of what is meant by “causing a social problem”? The idea that something could be used to cause harm applies to a huge range of things that we see every day. The question  is, what is the scale of that harm? Is it sufficiently big that it creates a problem wider than just basic harm? There are many things that we find in everyday use that can be misused and cause harm. [Interruption.] Coffee is the suggestion from behind me. One can explore various other options.

I was intrigued whether the matter had some meaning, so I asked question 175 in our evidence session with Les Iversen. I will read out the exact words, as it makes more sense in context:

“Dr Huppert: And it has real meaning for you? 

Les Iversen: Of course, yes.”

Professor Iversen goes on:

“Though it is hard to measure, as you say.” ––[Official Report, Police Reform and Social Responsibility Public Bill Committee, 20 January 2011; c. 97, Q175.]

I accept that there is a real problem in measuring social harm and the social problems that might arise. I can understand it being softened in this case, because there may not be enough evidence and it may be hard to measure. But I hope that we would still say that it should be a temporary order of the sort where we would expect the drug to be capable of causing a social problem. We would still aim at that, even if we had a lower standard of proof, because we simply could not have enough evidence to be absolutely certain.

If that is not the case, there is the theoretical possibility—of course, it is theoretical; I do not have an excellent example—of something that would be valid as a temporary order because it would cause harm, but not actually be capable of being classified under A, B or C because it would not cause harm sufficient to constitute a social problem. I do not want to see anything trapped in this space. Will the Minister explain why those words were left out? Is it his intention for the ACMD to look at that issue to a lower standard of proof, which I think would be a better option?

Lastly, I want to pick up something that would perhaps sit better under the schedule stand part debate, but it will not take long and, hopefully, we will save time later. In evidence to the Committee, the ACMD suggested that it was uncomfortable with the reference on page 179 to various punishments in relation to a class B drug. It made the excellent point that that could be seen to imply that a temporary class drug order meant that the drug was class B, and if it was later categorised as class C, that might be seen as downgrading it. Clearly, that is not the intention. One has to assume a certain level in order to do so. Perhaps the Minister will be prepared to make amendments along the lines suggested by the ACMD and spell it out to avoid any such suggestion.

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Clive Efford (Eltham, Labour)

I wish to speak to amendment 615, which is a probing amendment. I do not need to repeat the pertinent points made by the hon. Member for Cambridge, who quoted Professor Iversen’s evidence to the Committee. The issue concerns whether the Home Office should consult the advisory council before making a temporary drug order, and whether it should be given a similar status as a permanent drug order. I think the Home Office is required to consult the ACMD before making such an order. We have a statutory instrument before us tomorrow and the explanatory notes state that that is the case.

The measure would provide an important check and balance because, as has been alluded to, public campaigns can become very vocal. Pressure on politicians to respond to those can become very great, and therefore it is important that decisions are not made on the basis of what the latest red top is running a campaign on but on the scientific evidence. If the Government are required to take that scientific evidence before issuing a temporary drug order, an appropriate check and balance would be in place.

I also want to know whether it is the intention of the Government to seek the advice of the ACMD when making a temporary drug order, to assess the implications for its work load. That point was made by Professor Iversen in evidence to us. There should be some consultation about the implications for the ACMD and its capacity to carry out the work placed upon it, not only in relation to temporary drug orders but in relation to adding to its work load. There is, of course, the pressure of a time limit for a response, because the protocol sets out that there will be an agreed time limit between the chair and the Minister to set a time by which the ACMD should respond. Such matters are bound to have implications, so will the Minister say whether such an issue will be taken into consideration?

The hon. Member for Cambridge welcomed the agreements within the protocol but I seek clarification of one section of it. It states that, in those circumstances, the Home Secretary will consult before he makes his assessment, but then:

“In exceptional circumstances, for example, where there is a demonstrably urgent and substantive threat to public safety and/or health, Ministers will discuss the matter with the ACMD Chair before taking any action”.

What are the exceptional circumstances? Do they allude to the possibility that, outside the protocol, the Minister could act before seeking advice? The wording seems to be contradictory in that section. Is there an opportunity when the Government can act outside the protocol? I want some clarification on that point.

6:00 pm
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James Brokenshire (Parliamentary Under-Secretary (Home Office); Old Bexley and Sidcup, Conservative)

I thank the hon. Members for Cambridge and for Eltham for their contributions to our debate on the new temporary class drug orders. As they will appreciate, the new schedule is intended to provide further flexibility to respond to new psychoactive substances that might suddenly appear or become available, and the need for the Government in conjunction with the advice they receive to act swiftly when serious public health issues emerge. The lesson that we have learnt during the past 18 months to two years is that the ability to act swiftly, yes, proportionately and yes, reasonably is an important tool that we need to reserve to the Government to ensure that the supply of what are dangerous drugs can be acted on swiftly to protect the public—quite often young people—from harm.

The group of amendments would impose additional conditions that the Secretary of State must satisfy before making a temporary class drug order. Under the existing provisions in schedule 16, the Secretary of State must be satisfied, first, that the drug in question is not already a controlled drug and whether it is class A, B or C, and secondly, that it appears the drug is being or is likely to be misused and that misuse is having or is capable of having harmful effects.

The Committee might be aware that no such or similar conditions are placed on the Secretary of State before laying a draft Order in Council under section 2(5) of the 1971 Act to bring about the permanent control of a drug. The first amendment would extend the existing conditions so that the Secretary of State must also be satisfied that not only is the drugs misuse having or capable of having harmful effects, but the harmful effects are

“sufficient to constitute a social problem”,

as highlighted by the hon. Member for Cambridge. Just as the existing conditions are taken from the terms of reference of the ACMD under section 1(2) of the Misuse of Drugs Act 1971, so is the reference in the amendment to a social problem. The hon. Gentleman explained where the reference came from in that context.

In resisting the amendment, I want to remind the Committee of the underlying rationale for introducing temporary class drug orders. I shall then explain why it is not appropriate in such circumstances. The availability of the order is intended to enable us to take swift action to prevent harm. We are looking to restrict availability by enabling the police and other law enforcement agencies to take action against suppliers, minimise the opportunities for stockpiling and support a public health message. We know that some people equate legal with safe, sadly, and we have seen some issues and tragedies alongside that.

While we will continue to assess the new and emerging psychoactive substances on a case-by-case basis, it has become increasingly clear that, sadly, in many cases they are far from harmless and can have health risks similar to those linked to drugs, such as cocaine and amphetamine. The physical harms are likely to be evidenced by known pharmacology, as well as emerging evidence such as A and E admissions. “Social harms” remains a core element of the ACMD terms of reference, and an integral part of its advice following a full assessment of all the available evidence, often over a number of months, to inform a decision for permanent control under the 1971 Act.

In exercising the power to make temporary class drug orders, the Secretary of State mayhave evidence of “social harms” or be able to make reasonable inference from the properties of the drug in question and the experience of this new drug market. However, the view that we share with the ACMD is that harmful effects sufficient to constitute a social problem are not necessarily in evidence until some time after the first appearance of a drug. In his evidence to the Committee, Professor Iversen said that not only is a “social harm” hard to measure, but it is particularly so in a “short space of time”. However, while the drug remains freely available and could be doing untold harm, we do not intend to wait and see whether that is the case, in order to satisfy a condition of the nature proposed here. That would be a dereliction of the very duty we are seeking to bring to the fore.

In resisting the further amendments that require the Secretary of State to consult with—and in the case of the amendments tabled by Opposition Members, to seek the advice of—the ACMD before laying a temporary class drug order and to have referred to the ACMD for a full assessment of the drug’s harms in order to bring it under permanent control as a class A, B or C drug, I know that hon. Members have made reference to the  working protocol that we have developed with the ACMD. I hope that the protocol has been helpful and informative to hon. Members as to how we would seek to operate the provisions of this part of the Bill in conjunction with the ACMD, as well as setting out the relationship as we see it between Government and the advisory council, building on the recommendations that we have received from the Omand Review.

The protocol makes it clear that the Government intend to consult and be advised by the ACMD before laying an order. The ACMD’s advice is likely to be key to enable the Secretary of State to satisfy the conditions about the harmfulness of a drug before invoking a temporary class drug order. The ACMD can also provide advice of its own volition, and based on the experience of the previous Administration in relation to mephedrone and synthetic cannabinoids, it is likely to. In such circumstances, any requirement to consult is redundant if the ACMD has brought the issue to Government in that way. The protocol will be a public document on which the Government should and will be held to account.

I will address the point about exceptional circumstances. It is hard for me to give specifics, but the protocol highlights the ability to consult the chair of the ACMD in exceptional circumstances—for example, if there is a sudden public health issue that we are picking up from A and E departments that many people are presenting with psychosis or other issues linked to drug harm, where it is possible to trace that there is a new psychoactive substance that may be causal, and a pattern of behaviour is being underlined very rapidly, with significant harms. In other words, it is not saying that we should not be seeking advice at all or that we should not consult the ACMD, but that we should be able to speak to the chair. The issue may be so serious, and the harms becoming evident so significant, that to wait for a full council meeting to be scheduled might be a danger to public health. That is why an exceptional process is important.

We are not saying that we would not want to seek advice as we have done in previous cases, but it is understood that there is a need in exceptional circumstances for Ministers to be able to act swiftly to provide protection, while discussing the matter with the ACMD chair, so that the chair is at least given the opportunity to take informal soundings from other council members. We have discussed that with the ACMD, and I attended its council meeting last Monday to talk about the protocol and to listen to the council’s points.

The hon. Member for Cambridge raised the issue of penalties and of any equation between a temporary class drug and a class B drug. We do not seek to suggest that any drug in the temporary class drug orders should be class B, and indeed it might be found that such a drug falls outside the categories altogether, because of evidence or information that comes to light on further analysis. The penalties have been aligned to class B and C penalties on indictment, because we want to send out a strong message to the public, the enforcement agencies and the judiciary that we do not consider the people dealing in these legal highs any less seriously than those dealing in illegal drugs. The measure will not provide a perverse incentive to traffickers to peddle  drugs under temporary control, which might prove to be more harmful than those that are already subject to permanent control.

There was a broader point about why there are statutory consultations in the guidance but not in the Bill. There is a need to act swiftly, and if a consultation appeared in the Bill in a restricted way, a legal challenge could arise regarding the nature of that consultation. I appreciate the comments that have been made by members of the Committee and by Professor Iversen about the need for consultation with the ACMD, and I would like to consider whether the language could be framed in such a manner as to give comfort. As the memorandum clearly states, the Government’s intention is to consult and seek advice on the use of the temporary class drug orders in a way that is properly grounded in evidence. I hear the point that has been made by both the hon. Member for Cambridge and Professor Iversen about the fact that we have a good working protocol, but there is certainty and surety to be gained by virtue of putting something in statute. I will consider that further, and reflect on it, but on the basis of the comments that I have made I hope that the hon. Gentleman will withdraw his amendment.

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Julian Huppert (Cambridge, Liberal Democrat)

I thank the Minister for his comments and for agreeing to look further at some of the issues, and I look forward to the outcome of his deliberations. I am delighted that we have a Government who want to take drug policy evidence seriously. That has shamefully been lacking for many decades, and I am glad to know that it will end.

I hope that the Minister will also look at the phraseology issue with the class B drugs. I absolutely take the point that it is not intended to say that such drugs are class B, but the question is about misinterpretation and the Daily Mail headlines when they are later re-categorised. Nevertheless, having heard many helpful comments from the Minister, I beg to ask leave to withdraw the amendment.

Amendment, by leave, withdrawn.

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Clive Efford (Eltham, Labour)

I beg to move amendment 616, in schedule 16, page 176, line 5, after ‘revoke’, insert ‘or extend’.

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Christopher Chope (Christchurch, Conservative)

With this it will be convenient to discuss amendment 617, in schedule 16, page 176, line 6, at end insert—

6:15 pm
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Clive Efford (Eltham, Labour)

These are brief, probing amendments that I do not intend to press to a vote. Amendment 616 is on the extension of an order. Has there been any discussion between the ACMD chair and the Minister about the possibility of having to extend a temporary drug order if the investigations cannot be completed in the agreed time scale? There does not seem to be any provision for that in the Bill. The Minister may say that the Government are confident that a year is ample time. In the evidence of Professor Iversen, there was a reference to the time scale for legislation being passed. He had  been advised that it may take up to six months from a temporary order being invoked to the ACMD completing its investigations and legislation being passed. He went on to say that his experience was that legislation had been put in place on a much shorter time scale. He did not hold much with that extension. It is a probing amendment to find out whether there is any necessity in some form of backstop on the time scale and whether some flexibility is allowed. Professor Iversen said he hoped that the time scales would not be too prescriptive and that there would be some flexibility.

I welcome the commitment in the code of conduct to the Secretary of State not pre-judging these issues in advance of receiving advice from the ACMD. In the process by which the drug order is introduced, is there some restriction on the Government in responding to the ACMD if it says, “We think this is a drug that there should be a temporary drug order on”? How do the Government respond in terms of time on something raised by the ACMD? On amendment 617, I have one simple question: if an extension is requested by the ACMD, how will it be dealt with? Why have we settled on one year? What is the advice that has led the Government to decide that the temporary drug order should last a maximum of one year? Has there been some expert advice on that? What is the rationale behind that time scale?

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James Brokenshire (Parliamentary Under-Secretary (Home Office); Old Bexley and Sidcup, Conservative)

In answer to the hon. Gentleman’s last question, the 12-month period was selected following discussions with Professor Iversen and the ACMD on what would be a reasonable period to adopt to allow the breathing space to consider fully whether a temporary order should be made permanent. The clear message that I have telegraphed throughout the consideration of these provisions is that this temporary order should in no way be seen as a means of subverting the normal procedure for considering whether a drug’s classification should be permanent—in other words, the law under the Misuse of Drugs Act 1971. These provisions are specifically for dealing with the issues that we have outlined on newly emerging psychoactive substances that are appropriate to be treated in this manner. The normal course of action would be to seek the ACMD’s consideration of a new drug in the normal way, but with this power reserved to be able to address it. Ensuring that the 12 months are there gives the ACMD the scope and space to do that analysis and assessment on whether the temporary order should become permanent, to lessen some of the pressures that the hon. Gentleman mentioned in the previous debate.

The two amendments make provision for the Secretary of State to extend the temporary class drug order beyond its 12-month period, on the request of the ACMD. As the draft working protocol underlines, where a temporary class drug order is laid, the Home Secretary will make a formal referral to the ACMD to undertake, with immediate effect, a full assessment. We will agree a further timeline commensurate with enabling the Home Secretary to make a decision and, should it be considered appropriate, make a recommendation for permanent and full control to Parliament via the affirmative resolution procedure to approve a draft Order in Council under section 2(2) within 12 months of the temporary order coming into effect.

The ACMD will endeavour to provide its advice on permanent control within sufficient time to enable  Parliament to introduce control, if appropriate, in the manner I have just alluded to. Indeed, the hon. Gentleman and I will, no doubt, be considering such an order tomorrow in such a way in a similar Committee Room to this. For our part, we will give due and proper consideration to any reasonable requests for additional research in order to inform the ACMD’s full assessment. We are discussing research and a number of other issues with the ACMD.

Our decision to adopt 12 months has been informed by a number of factors, including those I have already spoken about. First, the provision must be temporary, but sufficient to allow further and fuller consideration about a drug’s harm. Secondly, international models are generally based on a 12-month timeline with no obvious problems. Thirdly, the time frame within which the ACMD has previously provided advice to Government, more particularly relating to so called “legal highs”, from BZP to synthetic cannabinoids to mephedrone and naphyrone, has, to the great credit of the ACMD, generally been about six to nine months. We wanted to ensure that there was some flexibility beyond that—it would not have been right to have gone for the nine months—but keeping it to as fair a window as possible to allow the ACMD to do their work and to advise Government appropriately.

However, we acknowledge that in an exceptional situation, the advice relating to permanent control may not have been either received or actioned before the expiry of the 12-month period. In these circumstances, the Secretary of State may make a further temporary class drug order if the conditions in schedule 16 can still be satisfied. We are clear that this possibility is not a back-door route to permanent control. In keeping with this position, it remains incumbent on the Secretary of State to bring before Parliament a further order and to justify to Parliament the reasons for so doing.

The hon. Gentleman’s amendment seeks to empower the Secretary of State to grant an extension of a temporary class drug order. On the face of the amendment, it appears that the hon. Gentleman is suggesting that this should be an administrative action exercised by the Secretary of State without any reference to Parliament. I suspect that that may not be the intention and I note that this is a probing amendment to draw out the issues, but I suggest to the hon. Gentleman that such an approach is not in keeping with the recognised role of Parliament under the Misuse of Drugs Act 1971, more particularly when introducing, or, in this case, extending the term of, criminal offences.

The hon. Gentleman’s amendment also appears to promote the advisory council to a decision maker in the context of whether a temporary class drug order is extended or not. By placing the Secretary of State under a condition that a further order can only be made at the council’s request, the amendment undermines the relationship set out in the 1971 Act—namely that the ACMD provides advice, Ministers make decisions, but ultimately it is Parliament that decides.

In resisting this amendment, I appreciate the issue that the hon. Gentleman is attempting to highlight here. It is a matter that the Government will look to better address in the joint working protocol with the advisory council. This is still subject to further iteration, taking account, where appropriate, of points raised in Committee and in subsequent consideration by the House and in  the other place. I hope that, with the assurances that I have given, the hon. Gentleman will be minded to withdraw his amendments.

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Clive Efford (Eltham, Labour)

I am grateful to the Minister. He did not refer to any commitment on the Government’s part to respond to the ACMD. If I missed it, then I apologise, but a question struck me when reading through the Bill, and through the protocol in particular. If the ACMD brought a drug about which it had concerns to the attention of the Secretary of State, is there some commitment on the Government’s part, or have they considered what would be an appropriate time scale in which to respond?

I take the Minister’s advice on excluding the House of Commons from an extension to a temporary drugs order, but the reason for the amendment was that if such an extension were sought, the only reason should be to enable the ACMD to complete its investigations.

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James Brokenshire (Parliamentary Under-Secretary (Home Office); Old Bexley and Sidcup, Conservative)

Before the hon. Gentleman sits down, I would point him to paragraph 4(6) of the memorandum, which says that “Ministers will look to provide a decision on all ACMD recommendations and publish a response within three months of receipt.” That is the general approach that we have set out to all advice that we receive, but clearly the circumstances may be such that we may wish to act more swiftly in individual cases. I hope that at least give him an assurance of the ultimate backstop that the Government are working to in terms of the recommendations that we receive from the ACMD.

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Clive Efford (Eltham, Labour)

I am grateful to the Minister. It is a small point and I will not press it any further, but it was regarding the initial referral from the ACMD in order to initiate a temporary drugs order. I beg to ask leave to withdraw the amendment.

Amendment, by leave, withdrawn.

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James Brokenshire (Parliamentary Under-Secretary (Home Office); Old Bexley and Sidcup, Conservative)

I beg to move amendment 567, in schedule 16, page 176, line 6, leave out ‘such’.

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Christopher Chope (Christchurch, Conservative)

With this it will be convenient to discuss Government amendments 568 to 573.

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James Brokenshire (Parliamentary Under-Secretary (Home Office); Old Bexley and Sidcup, Conservative)

These are minor and drafting amendments with which I do not need to detain the Committee. They are of a technical nature and therefore I hope that the Committee will be minded to accept them.

Amendment 567 agreed to.

Amendments made: 568, in schedule 16, page 176, line 7, leave out ‘A temporary class drug order’ and insert ‘An order under this section’.

Amendment 569, in schedule 16, page 176, line 8, leave out ‘a temporary class drug order’ and insert ‘an order under this section’.

Amendment 570, in schedule 16, page 178, line 3, leave out ‘the reference in subsections (1) and’ and insert ‘a reference in subsection (1) or’.

Amendment 571, in schedule 16, page 178, line 4, leave out ‘(in the case of subsection (1)) section 10(2)(i)’ and insert ‘(i)’.

Amendment 572, in schedule 16, page 178, line 9, leave out ‘(in the case of subsection (1)) section 10(2)(i)’ and insert ‘(as the case may be) (i)’.

Amendment 573, in schedule 16, page 179, line 19, at end insert—‘In section 37(1) (interpretation), after the definition of “supplying” insert—

Question proposed, That the schedule, as amended, be the Sixteenth schedule to the Bill.

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Clive Efford (Eltham, Labour)

We welcome the Government’s temporary drug orders; they are needed, but I have one or two questions. First, what is the advice on what constitutes possession under paragraph 6? Under that paragraph, someone can be prosecuted under the Misuse of Drugs Act 1971 for possession of a class B drug if they intend to supply it to someone else. Under a temporary drug order, what advice do police officers follow to determine whether they should take legal action against an individual? Is any guidance or advice provided? Is it similar to the way in which drugs with permanent exclusions are treated? A drug’s classification could be changed to class C, so somebody who has been treated under the temporary drug orders as though they were in possession of a class B drug may feel justifiably aggrieved.

In their evidence to the Committee, Professor Iversen and the ACMD recommended that substances should be referred to the ACMD so that it could consider all the options for control after reflecting on the available evidence. What consideration have the Government given to the possibility of more flexibility in how a drug is classified under a temporary drug order if the ACMD indicates that it may be classified as class C? I apologise if I have misunderstood the ACMD’s evidence, but it seems to suggest that it would be appropriate to have flexibility in relation to the drug orders.

Do the Government intend to keep the science and research group in the Home Office to provide expert advice and a degree of research back-up to the ACMD, so that the Government have the capacity to respond appropriately to its recommendations? I would be grateful if the Minister clarified whether the Government intend to maintain that.

Will the Minister clarify how the matter will be referred to the House? I apologise if I am asking an obvious question, but in what form will Members of Parliament be informed of the Government’s intention to deliver a temporary drug order? Will it be via a statutory instrument or a written statement?

6:30 pm
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James Brokenshire (Parliamentary Under-Secretary (Home Office); Old Bexley and Sidcup, Conservative)

On possession with intent to supply, the relevant issues are broadly equivalent to the law on drugs under permanent control, so there is a direct read-across. I add, however, that ACPO will consider the issue in the context of all legal highs and will review its policing guidance on new psychoactive substances, which will be directly relevant to how the provisions will be policed.

I want to clear up the question of the treatment of temporary class drug orders. The point is that, when a new psychoactive substance is identified, it will be brought within the temporary class drug order. That does not  make it a class B or class C drug. It is simply the penalties highlighted in the schedule that would apply. As I said during a previous debate, we think that setting the penalties as we have is important in order to send out a clear message about the seriousness of trafficking or seeking to sell such psychoactive substances.

On a general point about legal highs, we are discussing new psychoactive substances, but sadly, in many cases, drugs sold as legal highs turn out on analysis to be neither legal nor safe; they include controlled drugs. We are mindful of that point in our public health messaging on the subject. That is also relevant to the hon. Gentleman’s point about science and research. In our new drugs strategy, the Government have committed to a forensic early warning capability to identify what new psychoactive substances might appear so that we are better alerted. We are considering how the work of the forensic early warning system will lead into broader research on drugs and psychoactive substances that might become problematic. That work is ongoing so that the two will fit together well.

This is an order-making power. It will work by statutory instrument under the negative procedure. It will be presented to Parliament, and if Parliament is not in favour, it can pray against it in the normal way. I hope that that clarifies the hon. Gentleman’s questions about the clause.

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Clive Efford (Eltham, Labour)

I am grateful to the Minister. I accept that a drug under a temporary drug order is not permanently classified as a class B drug, but the ACMD has suggested that a more flexible approach might be taken to the classification of a temporary drug order. If I am wrong, I am happy to be put right.

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James Brokenshire (Parliamentary Under-Secretary (Home Office); Old Bexley and Sidcup, Conservative)

I wonder whether the hon. Gentleman is taking up a broader point. The ACMD is currently considering new legal highs and psychoactive substances in a broader way, rather than in terms of temporary class drug order controls. It might be referring to the aspect that he is taking on board.

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Clive Efford (Eltham, Labour)

If I misunderstand, I apologise, but the ACMD said in its evidence that invoking a temporary ban must be appropriate. It went on to say:

“Therefore, we recommend that in referring a substance to the ACMD, you ask the ACMD to consider all options for control on reflection of the available evidence.”

It seems to me that the ACMD is recommending a more flexible approach to the classification of drugs under a temporary control order. What consideration, if any, have the Government given to that?

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James Brokenshire (Parliamentary Under-Secretary (Home Office); Old Bexley and Sidcup, Conservative)

We have drawn up the provisions in close contact with Professor Iversen, the chair of the ACMD, and in discussions with the ACMD and others. They support the measure and recognise that it fills a gap and will be helpful to Government and positive with regard to the ACMD’s consideration of the issues.

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Clive Efford (Eltham, Labour)

The measures are important. If I am asking stupid questions, I do not apologise. Who knows? We might uncover something.

Question put and agreed to.

Schedule 16 agreed to.