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Misuse of Drugs Act 1971 (Amendment) Order 2022

Volume 818: debated on Tuesday 25 January 2022

Considered in Grand Committee

Moved by

My Lords, I thank the Advisory Council on the Misuse of Drugs for its advice, which has helped to inform the order for consideration today. The advice, published on 20 November 2020, recommended that three drugs be moved from class C to class B of the Misuse of Drugs Act 1971. The drugs are gamma-Hydroxybutyric acid, which is known as GHB; gamma-Butyrolactone, which is known as GBL; and 1,4-Butanediol, which is known as 1,4-BD. I will refer to them collectively as GHB and related substances, or GHBRS.

The Advisory Council on the Misuse of Drugs recommended that all three substances be controlled under class B of the Misuse of Drugs Act 1971 because of their potential harm and the evidence of the prevalence of these drugs in the UK. GHBRS are central nervous system depressants. They have been used as recreational drugs, but they have also been weaponised to commit drug-facilitated sexual assault and other crimes. Although a misnomer, they are commonly referred to as date-rape drugs.

The Advisory Council on the Misuse of Drugs provided wide-ranging advice on these substances. Prevalence of use increased steadily from 2005 to 2015 and has plateaued since 2015. Gamma-Butyrolactone and 1,4-Butanediol are converted to gamma-Hydroxybutyric acid on ingestion and are therefore similar in effect. There is evidence of an increasing number of deaths associated with GHBRS since the ACMD last considered the harms, including 27 recorded deaths in 2018. It was found that GHBRS can cause profound unconsciousness and that there is a high risk to users of overdose and death. Other severe effects include loss of emotional control, depression, paranoia, anxiety, aggression, and persistent cognitive impairment. There is also very strong evidence of GHBRS being used to facilitate crime, including in high-profile cases. They were used by the serial rapist Reynhard Sinaga, and the murderers Stephen Port and Gerald Matovu, to incapacitate their victims.

Clearly, it is right that we follow the advice of independent experts and tighten control on these substances. Moving them to class B will increase the maximum penalty for unlawful possession from two years’ imprisonment or a fine, or both, to five years’ imprisonment or a fine, or both. This will signal to the public that offences involving these substances are treated seriously and subject to the appropriate penalties, acting as a deterrent for their possession and supply. It will ensure that sufficient punitive measures are available to the courts and will mean that the police place a higher priority on action against offences involving these substances.

The report of the Advisory Council on the Misuse of Drugs recommended not only the control of these drugs under class B of the Misuse of Drugs Act 1971 but that gamma-Butyrolactone and 1,4-Butanediol be placed in Schedule 1 to the Misuse of Drugs Regulations 2001. This is the most restrictive schedule, which is applied to substances without recognised therapeutic benefit in the UK.

Currently, GBL and 1,4-BD have a unique status. Although they have no therapeutic use, it is lawful to import, export, produce, supply or possess them in circumstances where they are not intended to be used for human ingestion. This exceptional status was intended to enable the legitimate industrial use of these substances. However, the exemption has been exploited to enable illicit supply. The Misuse of Drugs (Amendment) (England, Wales and Scotland) Regulations 2021, also laid on 15 December, will therefore abolish the exemption for GBL and 1,4-BD, meaning that industrial users will need to obtain a Home Office controlled drugs licence. The 2021 regulations are subject to the negative resolution procedure, so the rescheduling of GBL and 1,4-BD is not under debate, but it is a crucial part of the package. Taken together, the two measures will deter illicit possession and supply, and reduce the availability of GHBRS, thereby preventing crime.

We all know the destructive effect that illegal drugs have on the lives not only of those who take them but of their families and wider society. This is demonstrably the case for GHBRS, which have been weaponised to enable crime. The advice from independent experts makes it clear that these substances are harmful. It follows that they must be subject to stricter controls. I commend the order to the Committee.

My Lords, I should remind the Committee that a former partner of mine died from an accidental overdose of GHB.

I thank the Minister for introducing this order. I must admit to being in something of a quandary about how to approach it. On the one hand, I do not believe that reclassification of these drugs to class B is enough. On the other hand, the classification of drugs is largely irrelevant.

I have said before that the classification of drugs under the Misuse of Drugs Act has very little credibility among those for whom it is most important—those who use controlled drugs. I do not know of anyone, particularly young people, who consider what class a drug is in before deciding whether to take drugs or what drugs to take before going on a night out, for example. Similarly, those addicted to controlled drugs pay no attention to the classification under the Misuse of Drugs Act. The reclassification of GHB and associated compounds from class C to class B, as the Minister has explained, further undermines the credibility of the system of classification, as it places GHB in the same class as cannabis. GHB is used to facilitate rape and to commit murder; it can result in sudden accidental death; and it is being moved into the same class as cannabis.

GHB is a colourless, odourless liquid that can easily be mixed unknowingly into someone’s drink, for example. It can and has been used, as the Minister said, as a so-called date-rape drug because, as the impact assessment shows, it can cause drowsiness and amnesia and the victim to slip into and out of unconsciousness. It is also rapidly eliminated from the body, making it very difficult to definitively identify in criminal cases.

But it is worse than that. Taken in small quantities over a period of time, it may not cause critical short-term effects but, over a long period, it can cause mental and social health harms. People can easily become psychologically addicted. GHB is one of the few drugs from which people can die while trying to withdraw from taking it. It is very easy to overdose, as my former partner found out.

Michael apparently took some GHB before going to a party. Forgetting he had already taken some, he took another dose on arrival, realised his mistake and made himself sick to get the second dose out of his system. He was allowed to fall asleep and began to snore. At that point in the evidence, which was being given by the host of the party at the inquest into Michael’s death, the coroner interrupted and said that snoring was a sign of the respiratory system shutting down and, for future reference, was the time to call an ambulance. Michael had not been breathing for about an hour before, the hosts say, they realised and called an ambulance. I was holding Michael’s mother’s hand as we listened to the evidence at the inquest.

GHB is widely used in connection with so-called chemsex, where parties are held and drugs are consumed to overcome inhibitions that some have to such an extent that they cannot have sex without these drugs. GHB is often taken in combination with other drugs such as crystal meth, making it increasingly difficult for some to keep track of how much GHB they have actually taken. As I have described, it is very easy to go from conscious to unconscious to respiratory failure to death, whether accidentally or when GHB is weaponised by sexual predators.

Noble Lords will recall Stephen Port, who was convicted of murdering four young men by administering GHB. In terms of risk to life, if ever any drug should be classified as class A, this is it. My understanding is that, in addition to reclassification, the Advisory Council on the Misuse of Drugs advised the Home Office that a public information campaign was necessary to raise awareness of the dangers these drugs pose, as well as better data collection, such as compulsory testing for GHB in post-mortems where death is unexplained, and increased support and rehabilitation for users and those addicted. In addressing the London Assembly this morning, the Metropolitan Police Commissioner talked about Stephen Port and how, in all cases of sexual assault, they now conduct tests for GHB, even when no complaint is made. I would welcome any information the Minister has about whether that will be extended to post-mortems.

Can the Minister also explain what other measures the Home Office is taking to address—to quote the ACMD—

“strong new evidence of significant harm due to the criminal use of GHBRS, including murder, drug-facilitated sexual assault … and robbery … a marked increase in deaths … physical, mental and social health harms”?

Reclassifying GHB as a class B drug and updating the information on FRANK is simply not good enough.

The reclassification of cannabis from class C to class B was ineffective in terms of harm and use reduction. GHB is characterised here as being only as dangerous as cannabis. It was only when there was publicity about the health dangers of prolonged, excessive use of genetically modified cannabis, the potential to trigger schizophrenia in those with a propensity to it and the harm to the developing brains of young people that cannabis use declined. Education, not criminalisation, caused that reduction in use.

We have seen people who have fallen unconscious from taking GHB being dragged from dancefloors on to the streets to save nightclub operators’ licences. We have seen people hesitate to call ambulances or otherwise seek medical help for fear of being prosecuted for illegal possession of drugs. Criminalisation of drug misuse costs lives. Education on the effects of these substances is where the emphasis should be, not on rearranging the deckchairs on the “Titanic” war on drugs.

If GHB is to be illegal and is to be reclassified, it should be a class A drug. To classify it as equivalent to cannabis is quite obviously ridiculous—but the most important step is a public information campaign to ensure that people are aware of how dangerous GHB and related substances are, despite it being classified by this order only as class B.

We support the amendments to the Misuse of Drugs Act 1971 and thank the Minister for introducing so comprehensively the details of the changes proposed. Just to remind the Committee, I sit as a magistrate and regularly deal with drug-related matters in all the jurisdictions—in youth, family and adult criminal matters. It is normal for me, when dealing with these matters, to notice that the street names of drugs change, the names recorded on the charge sheets change, and the strengths of the drugs that we are dealing with change as well. It is a moving picture; I understand the purpose of this amendment, but I take the point made by the noble Lord, Lord Paddick, that in a sense the system is always playing catch-up with what is happening with illegal drug use.

I thought it might be interesting for the Committee if I told an anecdote about when I was sitting as a magistrate in Horseferry Road about 10 years ago. We were in a regular criminal court and we had a young man in front of us—he was an adult in his early 20s. He had his father in court, and a privately paid lawyer, and he was pleading guilty to possession of a class B drug. That drug had only recently been made illegal; it had previously been a legal drug, and he had become addicted to it. He had dropped out of college and been put on a rehabilitation programme. He was doing better—but he had been picked up in possession of the drug, and that was the matter that he was pleading guilty to.

What nobody else in the court knew except me was that our legal adviser, before she became a legal adviser, was a nurse. She googled the drug referred to and asked us to retire. She told us that the drug that he had been found in possession of was a date-rape drug, which we had been told he was addicted to. In fact, we had had it presented to us that he was a victim in unfortunate circumstances. So we had to decide how to proceed, given that potentially, given the information that we had been given, it was a much more serious matter than simple possession of a drug.

In the end, we sentenced the man for simple possession, but we got the legal adviser to go and tell the young man’s lawyer—not his father—that we knew what that drug could be used for. When we went back into court and sentenced him—and he would only have got a fine, or something—we made it very clear that there can be other connotations for people having these drugs, and things can get much more serious. In fact, the legal adviser suggested that we might send the matter up to Crown Court, although we did not do that in the end.

I support these amendments. I know that there are limitations with what is happening, and I understand the points that the noble Lord, Lord Paddick, made—and I agree with his points about education being better than criminalisation, although I part company with him on a number of other aspects of legalisation of certain types of drugs. Nevertheless, I welcome these amendments to the drugs Act.

I thank both noble Lords for their very constructive points during this debate. The case example that the noble Lord, Lord Ponsonby, gave was very pertinent to how we might approach drug use in society: seeing someone as a user but also as a potential victim. The noble Lord, Lord Paddick, may have told me before his moving story about the tragic consequences of using a drug that, as he said, is not only hard to detect once taken but very difficult to detect post-mortem because of how quickly it clears from the body. If someone is in a slightly confused state, having taken it and forgotten that they have taken it, the danger is compounded. I thank them both very much for those stories. On what further work will be done on post-mortem, which in itself is a difficult thing to determine, I will get more information if I can, but we recognise the difficulty of detecting post-mortem. I assume that people whose intent is criminal exploit those difficulties.

As I said earlier, the ACMD recommended that GHBRS be moved from class C to class B. We hope that reclassification will benefit the public by reflecting our new understanding of the harms of those drugs. Increased penalties for offences under the Misuse of Drugs Act, coupled with the effect of the regulation in restricting supply, are expected to deter and prevent crime, but I take the points of both noble Lords about education. The Government’s drugs strategy is not a simple one of legislation; it is about support, education and moving “from harm to hope”, as the long-term strategy on drugs we have in place is called. That symbolises what the Government are trying to do.

On investment—putting our money where our mouth is—we are investing another £780 million to rebuild drug treatment and recovery services, including for young people and offenders, with new commissioning standards to drive transparency and consistency. Strengthening the evidence base for how best to deter use, ensuring that adults change their behaviour, alongside targeted activity to prevent young people from getting into this lifestyle in the first place, is really important.

The noble Lord, Lord Paddick, said that young people do not pay attention to classification—I totally agree—so how would reclassification meet our ambition in the drugs strategy? We need to take a better approach; I think we have all recognised that. No matter who you are and where you use, you should be encouraged to change your behaviour and to face consequences if you do not. We all know that recreational drug use fuels criminal markets—they thrive on it—which has a terrible impact on those involved in supply and the communities in which it takes place.

The noble Lord also asked me about treatment available to support users of GHB. As I said earlier, there is now significant investment in treatment, which will mean that everyone who needs help with their drug use will be able to get it. Substance misuse commissioners and sexual health commissioners will be supported to work together to improve pathways between services for those who use drugs in a chemsex context, where GHB is of course frequently used, and local authorities will continue to play their role here.

On challenging the Government’s approach to drugs, we are clear that it is anchored in education and effective consequences to reduce demand, tough and intelligent enforcement to restrict supply, and evidence-based treatment to aid recovery and co-ordinated global action. As we know, the problem is a global one.

On discriminatory effects and the groups that are disproportionately affected by tougher penalties, I refer now to the MSM community. The ACMD says in its report that men who have sex with men are the largest user group of GHBRS—I do not think that is disputed. They are often taken in the context of chemsex. The changes in classification and scheduling will disproportionately impact this group. However, the potential benefits of reducing the prevalence and the harms from GHBRS will also benefit the group.

As both noble Lords have said, legislative changes in and of themselves will not act in isolation. We expect to respond shortly to the ACMD’s educational and treatment-based recommendations, which will be delivered by the Office for Health Improvement and Disparities. We hope that this will help to counteract any unintended impact of the reclassification of GHBRS.

I hope that I have answered both noble Lords’ questions. I am sure that if I have not, they will intervene on me. If there are no further points, I commend the regulation to the Committee.

I thank the Minister for her comprehensive explanation. I was not suggesting at all that it would be wrong if this change had a disproportionate impact on a particular section of society. My main concern is that, to me, with the knowledge that I have of controlled drugs and the way they are used, I cannot think of anything more dangerous in terms of risk to life than GHB and the related substances. Perhaps the ACMD felt that it could not do two steps at once—in other words, it could not go from class C to Class A, because that might undermine its previous assessment of the drug. As I explained, I understand that the long-term effects of cannabis can be quite damaging to people’s mental health, but there is not the same danger of cannabis being weaponised to commit sexual offences, for it to be used as a murder weapon, as it was in the Stephen Port case, or as an overdose resulting in immediate and sudden death. Yet it is being reclassified as the same class as cannabis when it appears to me, from my experience, to be far more dangerous than cannabis. Does the noble Baroness have anything to say on that point?

I did not for a moment think that the noble Lord was objecting to the disproportionate effect on certain groups. When the ACMD considers things, it considers them very carefully and keeps them under review. I have tried to outline concern today about the stigma caused by increasing the classification on those who use the drugs, but also the desire to help people with the terrible problems that these drugs can cause. I am sure that it will keep it under review, and the noble Lord may well be right: it may recommend further classification in due course.

Motion agreed.

Committee adjourned at 6.24 pm.