That the Grand Committee do report to the House that it has considered the Misuse of Drugs Act 1971 (Amendment) Order 2009.

Relevant Document: 23rd Report from the Joint Committee on Statutory Instruments.

My Lords, if this order is approved it will come into force on 23 December 2009 and will bring a number of substances, many of them known as “legal highs”, under the control of the Misuse of Drugs Act 1971. The substances concerned are GBL and 1,4-BD; 1-benzylpiperazine—BZP—and a group of other substituted piperazines; synthetic cannabinoid receptor agonists, which I shall refer to as synthetic cannabinoids for short—that shows what a complex issue this is—15 anabolic steroids, two non-steroidal growth-promoting agents and oripavine.

As is required by the Act, the Advisory Council on the Misuse of Drugs has been consulted and agrees with the proposals. On 25 August, following the completion of a 12-week public consultation, my right honourable friend the Home Secretary announced that the Government had decided to control a range of “legal high” drugs to protect the health of the public, especially young people. These “legal highs” carry varied but significant health risks. Young people in particular may often equate “legal” with “safe” and do not always understand that the drugs carry risks. By banning the drugs we will send a clear public health message to users and sellers.

New legislation is only part of the work that we are doing to tackle the emerging threat. We have also launched an information campaign to educate young people on the dangers of these substances, particularly when they are mixed with alcohol. As with all FRANK campaigns, ours is targeted to ensure that the message reaches the people most at risk of using the substances, and we have worked with leading experts in the field to develop the campaign. We are also targeting people looking to purchase the drugs online with key risk messages that will appear while they are searching the internet.

We must be prepared to adapt our drug legislation to tackle emerging threats to health. We propose to introduce generic definitions for a number of these drugs to capture closely associated chemical compounds that otherwise might be misused instead. This is not a new approach—we have used it for other synthetic drugs—and again we are taking the opportunity to future-proof our drug legislation, responding to current and foreseeable trends to ensure that we keep one step ahead of the unscrupulous manufacturers of illicit substances.

Gamma-butyrolactone—GBL—is perhaps the best known of the drugs that we propose to control with noble Lords’ approval. Noble Lords may recollect that much concern has been expressed about the dangers of misusing GBL following the tragic death of Hester Stewart, a young woman with a bright future ahead of her. It is important that we impose suitable controls on the drug’s availability to help to ensure that other families do not suffer a similar loss.

When ingested, GBL and a similar chemical, 1,4-BD, are rapidly converted to GHB, which is already controlled as a class C drug. The effects and risks associated with the misuse of GBL and 1,4-BD are unconsciousness, a dependence syndrome if used regularly and a risk of death by intoxication. However, unlike GHB, GBL and 1,4-BD have a wide range of legitimate industrial uses. For example, they are used in the manufacture of cleaning agents, paints and nail polish. Our recent public consultation focused on ensuring that a control option for GBL and 1,4-BD was chosen that provides the best protection to the public from the harms that these drugs can cause while taking fully into account the uses of these chemicals for legitimate business purposes.

We intend to amend the Misuse of Drugs Regulations 2001 so that the prohibitions relating to GBL and 1,4-BD as class C drugs, and the consequential offences, will apply only when the substances are intended for human ingestion. The amending regulations to allow the legitimate use of GBL and 1,4-BD are subject to the negative resolution procedure. They will be laid shortly, to come into force on 23 December at the same time as the Order in Council if it is approved.

The Government accepted the advisory council’s advice on the class C classification of GBL. Current evidence, especially in relation to societal harm, suggests that GBL, like the related GHB which has been a class C drug since July 2003, is less harmful than current class B drugs. The health risks, including the risk of death, are increased when the drug is combined with alcohol or other depressant or stimulant substances, but classification of any drug under the 1971 Act does not, and should not, depend on whether it is used with other substances.

The control of BZP is the Government’s response to the European Council’s decision to require all EU members to subject BZP to “control measures and criminal provisions”. The decision states that,

“due to its stimulant properties, risk to health, the lack of medical benefits and following the precautionary principle, there is a need to control BZP”,

through measures,

“appropriate to the relatively low risks of the substance”.

The advisory council advised a class C classification for the drug, but also recommended that controls be levied on the related group of substituted piperazines, not just BZP, using a generic definition, as BZP is only one of several substituted piperazines that have been found in the United Kingdom and are, or are capable of, being misused, with the same or very similar harms. For the very reasons I gave at the start of my remarks on the need for durable legislation, the Government support this recommendation.

My Lords, as the Minister said, this draft order will classify various substances as controlled drugs under the framework set up by the Misuse of Drugs Act. On these Benches we support the Motion for approval but we have a couple of concerns about the approach to the classification of, in particular, GBL and 1,4-BD.

I have two points to make. The first concerns the length of time that it has taken to classify GBL. It was recognised as a pro-drug of GHB, meaning that when ingested it has similar effects and risks. The class C classification was given to GHB in 2003. In 2007, the Advisory Council on the Misuse of Drugs recommended that GBL should be classified as a controlled drug. However, it has taken a further two years for the Government to get round to that classification and, although I take the Minister’s point about the need to ensure that legitimate use is not impeded, that seems a very long time. I should be grateful to know the circumstances that caused this delay and whether in the future action can be speedier.

There is no doubt that during the time this drug has been under consideration but not classified there has been a significant increase in the use of the substance, including, in particular, in date rape cases. It now appears to have a faster onset of action than its related drug, GHB. Therefore, I should be very grateful to know the Minister’s analysis of the speed at which these classifications take place and whether they can be somewhat speeded up.

My second point concerns the Government’s decision to treat GBL as a class C drug. There have been cases of sudden death when this substance has been consumed with alcohol and, as I have already said, it has been linked to date rape cases, which is pretty serious from a public protection standpoint. On these Benches we do not consider that treating this substance as a class C drug will provide the required emphasis on either the potential harm or the need for robust enforcement.

One consequence of the chaos over cannabis reclassification is the damaging impression that class C drugs are not particularly harmful. The Minister himself mentioned, and I entirely agree, that because it is legal it does not necessarily harm less. I think that there is a mistaken impression that these drugs, if only class C, are not particularly harmful.

The situation is not helped by the problems that there have been with the Government’s drugs helpline, FRANK, which, in one case, as the Government admitted, gave out the wrong advice earlier this year about the strength and health effects of cannabis. In the context of this order, it would be very helpful if the Minister could say what steps the Government have taken to ensure that that kind of slip-up does not occur in future, because its consequences can obviously be serious.

Does the Minister accept that we are still learning about the potential effects of GBL and that its serious effects are becoming clearer over time? It would be helpful if he could say on what basis the Advisory Council on the Misuse of Drugs and the Government made the decision to classify GBL at the lowest level. Did they, for example, consider the potential harm caused by GBL if it is consumed with alcohol? When the Government announced their decision to reclassify cannabis last year, they said that with,

“doubts about the potential harm that will be caused, we must err on the side of caution and protect the public”—[Official Report, Commons, 7/5/08; col. 705.]

I absolutely agree. Therefore, my view is that we should err on the side of caution when it comes to GBL and that we should take a more precautionary approach than I believe a C classification gives us.

The Misuse of Drugs Act is supposed to put in place a flexible framework where, if evidence of greater or lesser harm of a drug emerges, the classification can be changed accordingly. It would be helpful if the Minister could tell us on what kind of basis a review would take place. Will there be continuous review or a time-to-time review? What would be the possible consequences of review? We think that GBL should be classified as a class B drug and not a class C drug. I should be grateful for the Minister’s comments.

My Lords, I am grateful to the Minister for sharing the Government’s thinking on this order, which we support, and for his manfully struggling, if I might respectfully say, with the names, which are incredibly difficult. I was also very grateful for the particularly clear Explanatory Memorandum, which was very good in setting out the options and why the Government had taken them.

The Minister mentioned that the generic approach has been taken before, so obviously the Government have experience of the legal term “structurally derived”. I highlight this because, with the ever-increasing amount of scientific knowledge available about what stimulates the brain and how, there is a worry that it will be quite easy for chemists to move from one chemical make-up to another with the same effect. It is the effect that we are worrying about, as opposed to which chemicals are causing it, although the Minister may tell me more about that.

I worry because, as fast as the Government can move and classify, people interested in selling drugs can move equally fast to another chemical make-up. Given the discussion around GBL and the fact that it has other uses, children and young people might revert to something commonly used in other countries where the marketing is probably less slick. It might not be marketed as GBL and there might be far more sniffing of glue, paint-stripper, nail varnish remover, aerosols and all sorts of things. It is not that by classifying these things the problem will disappear. The biggest effort should still be the educational campaign. What is the current spend on the educational campaign that the Government call FRANK and what is the budget for next year? It is only by adequate education that the health of young people can be safeguarded.

There has been much controversy on the classification and advice from the advisory council, and we are sad that the Government chose to disregard its view. You could consider any substance: for example, alcohol is legal but in A&E departments there are many cases of much harm and sudden death from drinking too much. Again, ultimately, that is a question of education, unless we go down the line of prohibition of alcohol.

The Minister did very well when he was talking about the objective as regards synthetic cannabinoids. The Explanatory Notes state:

“The ACMD advise that the potential harms of synthetic cannabinoids are broadly commensurate with those of cannabis”,

which I think should be followed with a full stop because the ACMD agrees that synthetic cannabinoids are fully commensurate with the harms caused by cannabis. If there was a full stop, it would continue with, “which” the Government chose to reclassify,

“as a Class B drug under the 1971 Act”.

That would be against the scientific advice, which the Explanatory Notes do not say. I do not believe that classification is the key; education is the key, and that can begin with children as young as is reasonably possible so that they are not a sitting target for marketing.

I thank noble Lords for their contribution to the debate. There is no doubt that we all agree that drug misuse wastes lives, destroys families and damages communities. We have to face the problem head on. We know that we can succeed in tackling drugs and reducing the harm they bring. In the past 10 years we have seen some progress and notable successes. Drug use is down but we have to be prepared to respond to the nature and force of the problem as the environment changes, and as part of that response we must look to our drug laws.

The noble Baroness, Lady Neville-Jones, referred to things such as Spice and so on, which are a way for unscrupulous people with shops to get round the drug laws and sell things to people who feel they need them. The noble Baroness mentioned the issue of date rape, which is important, and particularly unpleasant. The ACPO forensic science service and sexual assault referral centres conducted a 12-month study into DFSA, which is drug-facilitated sexual assault—yet more acronyms—in a number of police areas in England. It found that GHB, which is a like drug to GBL, was detected in only two out of 344 cases. It is quite a small number but that does not mean that it is not important. We have to be aware that some of the assessments may not be correct, but it is not as great an issue as we thought it might be.

The noble Baroness touched on how long it has taken to do this, and she was a little hard on us. The ACMD recommended control of GBL in August 2008, not 2007. As the noble Baroness alluded to, it was not straightforward because of the number of legitimate uses. We remain committed to protecting people. The consultations had three options, with a view to ensuring a better understanding before moving down that route. We are working with the ACMD to expedite our response when we have better evidence of harm. For example, advice on the synthetic cannabinoids was received in August 2009. We laid the order in Parliament in October and we are debating it now. We may have been a little faster than was said, but I would not be complacent because it is important to act quickly. The people who do these things are willing to move quickly to try to get round all our attempts to protect people.

On classification, the ACMD clearly advised us that harms for GBL are equivalent to class C. We accepted that advice in full and the current evidence in relation to societal harms suggests that it is less harmful than some other drugs, but there are still a number of risks. That is why we agreed with its view. We could debate and talk about the issue, but we have made a reasonable assessment. My honourable friend Alan Campbell, the Minister responsible for drug policy, made a commitment in the other House to keep classification of GBL under review, and we will take steps to do so. If we have got it wrong, we will review it.

The noble Baroness, Lady Miller, asked what other steps we could take to prevent misuse. There is no simple solution to the misuse of drugs—that is why we need a drugs strategy that encompasses enforcement, education and treatment. Often the education and treatment achieve more, but you must have enforcement as well, not least because of the unpleasant people who push the drugs. When we face the complications of responding to the misuse of a chemical, and the clever changing of chemicals that I can hardly pronounce, it adds to the complexity. However, as the noble Baroness said, we must look at this across the board.

I do not know the precise budget of FRANK, but I will write to the noble Baroness. There was concern about the FRANK helpline giving out wrong information. I was aware that this had happened. When these incidents have come to light, we have taken immediate action and will continue to keep an eye on the situation. We cannot take more draconian measures. We continually monitor the helpline and the operators have a clear view of what they should be saying. However, human beings are what they are and sometimes things go wrong.

One question touched on paying attention to the ACMD. Since the advisory council was formed, on three occasions the Government in power—whether the Conservatives or ourselves—have not agreed with one of its statements. That is a tiny number when one considers all the recommendations that it has made. Other factors are in play. The council members are scientists who provide brilliant advice. Generally we listen to it, but on occasion there are policy issues that they are not best placed to judge—it is up to Ministers to make the decision. That is correct, and when one looks at the hundreds of recommendations that the council has made and realises that only three times has the advice not been taken, one can see that the balance is about right.

The noble Baroness, Lady Miller, touched on concern that chemists change the chemical nature of substances outside the law. That is absolutely right. Pronouncing the names of the substances is difficult enough, and they keep changing them. That is why we are applying generic definitions to control these drugs. Again, we cannot be complacent. This is a dangerous area. However, it is super that we will be able to get hold of the people who run shops for potheads and stop this happening. That is important.

I hope that I have answered most of the questions. If there is anything that I have not touched on, I would be happy to come back in writing—but I cannot see that I have missed anything. Approval of this order will help us to ensure that necessary controls are in place to protect the public. We all have the same aim. In particular, what is important is to protect the health of our young people from the harm done by these drugs.