Schedule 16

Part of Police Reform and Social Responsibility Bill – in a Public Bill Committee at 6:15 pm on 15 February 2011.

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Photo of James Brokenshire James Brokenshire Parliamentary Under-Secretary (Home Office) 6:15, 15 February 2011

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.