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Misuse of Drugs Act 1971 (Amendment) Order 2023

Volume 832: debated on Tuesday 19 September 2023

Considered in Grand Committee

Moved by

That the Grand Committee do consider the Misuse of Drugs Act 1971 (Amendment) Order 2023.

Relevant document: 51st Report from the Secondary Legislation Scrutiny Committee (special attention drawn to the instrument)

My Lords, this order was laid before Parliament on 5 September. It proposes an amendment to paragraph 1(a) of Part 3 of Schedule 2 to the Misuse of Drugs Act 1971 to control nitrous oxide under class C of that Act.

After increasing reports of the harms associated with its misuse, the Government commissioned the Advisory Council on the Misuse of Drugs in September 2021 to undertake an updated harms assessment of nitrous oxide. The Government also asked the ACMD to recommend the appropriate legislative control of nitrous oxide.

I am grateful to the ACMD for its updated harms assessment, published in March 2023. While the ACMD did not recommend the control of nitrous oxide under the Misuse of Drugs Act in its assessment, it noted concerning health harms including nerve damage. Its assessment also highlighted anecdotal reports about the association of nitrous oxide with anti-social behaviour as well as the widespread use and availability of the drug, particularly among children and young people.

The Government carefully considered the ACMD’s thorough report and considered a range of factors before reaching a decision. Of particular concern is the popularity of nitrous oxide, given that it is the third most misused substance among 16 to 24 year-olds in England and Wales, with approximately 230,000 young people inhaling it in England and Wales in the year ending June 2022.

In addition to the high numbers of young people misusing nitrous oxide, the ACMD highlighted anecdotal reports of an increase in neurological harms. Noble Lords may have heard of a small number of tragic cases in which young people have been paralysed, or died, following nitrous oxide misuse. Neurology units around the country have reported frequent cases of nerve damage. While many cases of this damage can be treated and even reversed though treatment, sadly not all can. Contrary to the belief of some who might argue that this is a perfectly harmless drug that many people use without consequence, nitrous oxide is not safe to use without medical supervision. Beyond the harmful effects on users themselves, there have been several cases that serve as a testament to the devastating consequences of driving under the influence of nitrous oxide.

In considering our approach, we have also reflected on the reports from those working in front-line policing and night-time industries, and from parliamentarians, about the public effects of nitrous oxide misuse.

People have a right to expect public areas and their neighbourhoods to be safe and clean, even quiet, but in recent years the sight of discarded small silver nitrous oxide canisters, and even more recently the oversized canisters seen on our streets, have become more commonplace. To cite a recent example, an estimated 13 tonnes of discarded canisters were collected in the Notting Hill Carnival clean-up operation. It is entirely unreasonable to expect people to sidestep the paraphernalia and mess associated with nitrous oxide misuse. Neither should anyone have to feel threatened by anti-social behaviour associated with its misuse.

The Government are taking decisive action to tackle anti-social behaviour through a comprehensive action plan, and noble Lords may recall that in March we announced our intention to ban nitrous oxide. As a result of the considerations I have outlined, the Government are taking action beyond that recommended by the ACMD and seeking to control nitrous oxide as a class C drug under the Misuse of Drugs Act. We are doing this to introduce tougher consequences for the supply and misuse of nitrous oxide, and to deter people from harming not only themselves but others.

At present, nitrous oxide is subject to the provisions of the Psychoactive Substances Act 2016 as it is a psychoactive substance. The 2016 Act contains offences for the production, supply, possession with intent to supply, import or export of a psychoactive substance where a person

“knows, or is reckless as to whether”

it will be consumed “for its psychoactive effects”. It does not, however, contain an offence for the simple possession of a psychoactive substance, other than in a custodial setting.

The control of nitrous oxide as a class C drug under the Misuse of Drugs Act would also make it an offence to possess nitrous oxide, unless for a legitimate use. This would mean higher penalties and enforcement provisions. Those found in unlawful possession of the drug could face up to two years in prison, an unlimited fine or both. Meanwhile, those who supply or produce nitrous oxide could face up to 14 years’ imprisonment.

We are conscious that there is a wide range of legitimate uses of nitrous oxide. We are aware of its use in healthcare, including dentistry, industry and catering. To enable legitimate uses to continue, a further related statutory instrument will come into force simultaneously with this order. This would amend the Misuse of Drugs Regulations 2001, scheduling nitrous oxide under those regulations to provide certain exemptions from the offences under the Misuse of Drugs Act 1971, including medical use, and to provide legitimate access to nitrous oxide for legitimate uses, including in industry and catering.

Drug misuse ruins lives and adversely affects society as a whole. The Government have a responsibility to protect the public—their safety and their health—and that is why we are proposing this action. As I have set out, nitrous oxide harms not only people but communities and must be subject to stricter controls. I commend this order to the Committee.

My Lords, I have a quick question about the overall legislation encompassed here. I am not unaware of the impact of people taking drugs, but at times it seems to me that the Home Office automatically wants to ban everything, with the net result that we drive more and more illegal activities into the hands of criminal gangs. Every time one does that, there is a risk that, rather than feeling better and achieving something, we just enlarge the black market of yet another section of society.

I have had the misfortune of having to nurse back, with friends, people who have become drug addicts. I was also offered nitrous oxide from a large container in the lift on the Elephant and Castle Tube line on 18 June. I have seen groups of people using it and proffering it to me. But while I accept the order as it stands, I wonder whether there should be a broader review of the Misuse of Drugs Act because of the implications of driving so much into the hands of criminal gangs and youngsters. We have debates about county lines and the like, which all seem to point in the same direction: we are quite happy to ban things, but there ought to be other solutions to this and other problems.

I thank the Minister for his statement, but on this side of the Room we are disappointed with these proposals and feel that they will do little to prevent harm. We feel they will make matters worse, not better, as we believe in a health-first and reduction approach to drug control.

This order will categorise nitrous oxide, also known as laughing gas, as a class C drug and make it illegal by the end of the year. As a result, those found in unlawful possession of the drug could face up to two years in prison or an unlimited fine, with up to 14 years for supply or production. The Government already have powers to tackle suppliers of the drug under the Psychoactive Substances Act 2016, which made it an offence to supply nitrous oxide if a person knows it will be used for its psychoactive effects. The Government now seem intent on using the Misuse of Drugs Act 1971 to deal with what is mainly a small-scale anti-social behaviour and littering problem. This seems inappropriate. It is the legislative equivalent of taking a knife to a spoon fight.

The Government’s own Advisory Council on the Misuse of Drugs does not agree with their approach. It said:

“Based on this harms assessment, the Psychoactive Substances Act 2016 remains the appropriate drug legislation to tackle supply of nitrous oxide for non-legitimate use. There is, however, a need for enforcement of the Psychoactive Substances Act 2016 to be supported by additional interventions designed to reduce health and social harms”.

Based on this harms assessment, their own advisory council does not support the reclassification.

We believe that these proposals are ill thought out and unsupported by the evidence. They have not been properly consulted on and will have negative impacts, pointlessly criminalising many young children. The Government’s impact assessment states that

“nitrous oxide has a large proportion of users aged 17 and under who consume it”,

as the Minister recognised in his speech. For the offence of possession of a class C drug, its high estimate is 16,400 children a year, resulting in 2,000 children being charged, 1,600 receiving cautions and 7,500 being subject to community resolution.

Criminalising young people will have lasting harm on their future life chances. The Government’s ACMD stated that the penalties under the 1971 Act would be

“disproportionate for the level of harm associated with nitrous oxide and could have significant unintended consequences”.

At the same time, the Government have brought forward no useful proposals to control the sale of nitrous oxide to children and young people, nor to educate and warn young people of the dangers of their use. The ACMD said there is a need to enforce existing legislation under the 2016 Act.

The consultations have been cursory at best, or missing altogether. The consultation with industry about the impact of a class C classification found widespread opposition. The police have had no real public say, and the public consultation was limited to only eight weeks. Although this might make for good red-top headlines, it makes for badly thought-out legislation—legislate in haste, repent at leisure.

Nitrous oxide is widely used for legitimate purposes in many sectors of the economy. The ACMD stated that control under the 1971 Act could

“produce significant burdens for legitimate medical, industrial, commercial, and academic uses”.

The Government state that their intention is not to “unduly burden” industry as a result of the reclassification, but this will be its exact impact, according to those consulted. According to the Government’s impact assessment, the reclassification is estimated to cost around £68 million in total, with £48.1 million in direct costs over 10 years split between £18.4 million for the prison system, £16.3 million for legal aid and £13.3 million for the courts. There are also estimated to be costs of £19.8 million for the police. No new money has been made available for the current spending review period. This money is not generally available in the system and, if it is spent on these measures, we believe it would have little public benefit.

On 14 September 2023, the House of Lords Secondary Legislation Scrutiny Committee drew this statutory instrument to the attention of the House, saying:

“The Government are entitled to take a different approach to that recommended”—

by the ACMD—

“based on its ‘broader view’ of the issues. However, in so doing it should establish robust methods of analysing and reporting on the effects of the policy, including committing to a post-implementation review. Such analysis should cover any concerns raised by the police and other interested parties”.

I press the Minister to commit to a full post-implementation review, assuming these measures go ahead.

The Government have not conducted a public consultation on the reclassification, because they were already “minded to introduce” a ban. Consultations can have several purposes, and this is not an adequate reason for dispensing with one, particularly where key stakeholders have expressed reservations. This should not set a precedent. The views of the police and other interested parties are almost entirely lacking and should have been set out in more detail, regardless of whether they support or oppose the reclassification. Can the Minster clarify whether the police supported this reclassification? This order has been drawn to the special attention of the House on the grounds that there appear to be inadequacies in the consultation process relating to the instrument.

I ask the Government to think again about the reclassification because, on this side, we believe that a health-first, harm-reduction approach is badly served by these proposals. To meet these objectives, we call on the Government instead to do more to control the sale and to educate young people about the dangers.

My Lords, I thank the Minister for his statement and the noble Earl, Lord Russell, for the points he made. Although I do not agree with the central tenet of what he said, he made some interesting points which need an answer. He has started a more general debate which is long overdue.

We support the SI, which brings nitrous oxide under the control of the Misuse of Drugs Act 1971 as a class C drug. As the Minister outlined, unlike the 2016 Act, it makes possession an offence. That goes against the advice of the ACMD, but we believe that the Government are correct in their evidence to do so. In fact, in the Explanatory Memorandum, the Home Office helpfully points out that in 2008 the then Government went against the advice of the ACMD when they—one Member of the Committee was in the Home Office at the time—took the decision to move cannabis from class C to class B, which I believe to have been correct, the reasons for which will be evident in what I will say about nitrous oxide.

As the Minister pointed out, 230,000 young people across our country are affected by nitrous oxide. That is an astonishing figure. What are the Government supposed to do in the face of that—just ignore it? I know the noble Earl, Lord Russell, would say, “Of course I’m not suggesting ignoring it, but there are alternative ways of dealing with it”, but the Government have a responsibility. It is good to see a large number of colleagues from Northern Ireland, because this extends across the whole of the UK.

As the Minister said, nitrous oxide is the third most misused drug among young people, and there is increasing evidence of harmful neurological effects. Rereading the comments made in the other place, I was struck that Justin Madders MP highlighted a London Ambulance Service survey that showed a 500% increase in the number of nitrous oxide incidents between 2018 and 2022. Beyond that, as many of us will know, is the impact on anti-social behaviour, as pointed out by many colleagues in the other place, including my honourable friend Alex Norris MP:

“Nitrous oxide causes significant problems in our communities”. —[Official Report, Commons, 12/9/23; col. 851.]

Many other Members of Parliament made the same point.

I am sure the Minister will agree that these communities are fed up with the nuisance and litter—as he pointed out—of the canisters and other materials in our streets and parks. As I said before, the Government needed to act. I believe that 13 tonnes of nitrous oxide canisters and other material were collected after the Notting Hill Carnival—13 tonnes of waste. What sort of impact does that have on young people walking around? What does it say to young children of three or four, or older people, or the majority of people who abide by the responsible way to behave in our communities? I understand that the noble Earl, Lord Russell, and others would not say that we should ignore that, but somewhere along the line you have to say, “This is not acceptable and we’re going to do something about it”. The Government are quite right. At the end of my remarks, I will come back to this to address a point made by the noble Lord, Lord Hayward.

I have some questions for the Minister, as there are some legitimate questions to ask. The Government’s figures say the SI will have an expected cost of £68 million to the police, courts, Probation Service and prisons. There is to be no additional funding to support that. Can the Government say why, and how it is to be funded? For example, their estimate is that there will be a need for 26 additional prison places. How will that be achieved, given the current crisis? Will this just be subsumed within it? Is there an expectation that it will be sorted out?

I agree very much with the noble Earl, Lord Russell, and the noble Lord, Lord Hayward, about the need to assess the effectiveness of the SI and monitor what happens. The Secondary Legislation Scrutiny Committee called on the Government to make sure that that was properly reviewed. I would like to understand exactly what the police view of the SI is and their—or the Government’s—expectation of increased prosecutions.

As Kit Malthouse pointed out, enforcement will be essential; otherwise, this becomes just another meaningless law. Obviously, the police will have guidance with respect to how this law is enforced. I agree that there must be flexibility. However, it would be helpful if the Minister could confirm the following. A police officer on the street will have flexibility in determining how they deal with someone who is caught in possession of nitrous oxide. It is not automatic that they will be arrested and will have a criminal record. That flexibility on the part of a police officer on the street is important—but it is also important that they have the flexibility to arrest on the basis of possession and can deal with the situation on the basis of the offence of possession. That will be an important step forward.

As I said, the ACMD did not recommend a change in the legal treatment of nitrous oxide but it suggested a number of other interventions, such as restrictions on direct consumer sales, smaller canisters to tackle non-legitimate supply, and the need for a public education programme. Can the Minister say a little more about these non-legislative changes that the ACMD said were important? I agree with the thrust of this, that there should be a change to the legislation, and this should be a class C drug. However, it is also important to recognise that the ACMD made other recommendations; it would be interesting to hear the Government’s view on what they will do in respect of those.

The Minister dealt with the question of the SI not impacting on the legitimate use of nitrous oxide. Can the Minister confirm that in the debate in the other place it was raised that the new SI proposed to deal with this will mean that there will not be any sort of policy gap between the new offence and ensuring that dentists and others with legitimate uses for nitrous oxide can carry on using it without any risk to themselves? We think the Government are right to act, but they need to make more of the damage to individuals, the link to ASB and the impact on communities.

As has been pointed out, if you look at where drugs laws have been relaxed, such as in San Francisco or Portland, there is absolutely no evidence that it reduces the harm caused by drugs. On the contrary, it increases the harm in those communities. That is the important point, and it would be interesting to have this debate around what the noble Lord, Lord Hayward, said. The Minister, Chris Philp MP, raised this in the other place, but I think we sometimes need to make more of that—

To clarify, I was asking a question, not necessarily advocating that the legislation should be relaxed. I asked whether, instead of banning, you might go for regulation or some other option. I was not putting forward any particular option.

I thank the noble Lord for that clarification. I did not mean that; I am sorry if I gave the impression that I did. I think there is a necessity to review this. I want to quote Chris Philps, a Conservative Home Office Minister who I thought was absolutely right—“liberal” is not meant in a Liberal Party sense here. He said:

“I do not accept the thesis that we can have treatment only if we liberalise drug laws”.—[Official Report, Commons, 12/9/23; col. 868.]

I absolutely agree with that comment. Too often, it becomes a debate between someone who says we should have tough drug laws or someone who says we should have treatment and more diversion. Surely, the question is how we ensure that we have the correct balance between the two. We need drug laws that are harsh and effective in dealing with those who supply drugs, in particular, as well as with possession. However, alongside that we need to have appropriate community action: diversion, youth activity and employment, as well as treatment where necessary. That false dichotomy between the two does not help the debate.

As I say, we support the measures that the Government have brought forward. I hope that the questions I have raised are also helpful. Again, the Government need to do more to show people the evidence about what happens—the harm caused—when you relax drug laws and allow some of the liberalisation that is being called for. It is a false dichotomy to say that you must have either harsh drug laws or treatment. Surely, we need to put both together to ensure that we have the effective drugs strategy that we need.

My Lords, I thank all three noble Lords for their contributions to this important debate. A number of interesting points have been made. I will attempt to address them but, first, I thank the noble Lord, Lord Coaker, and the Labour Party for their support. Obviously, I regret the fact that the Liberal Democrats are unable to support this important public health and safety measure.

The Government disagreed with independent experts on this matter, as was noted by all the speakers in the debate. Turning to questions about that decision, we are of course grateful to the ACMD for its detailed report. ACMD advice is an essential part of our decision-making and we continue to have complete faith in its quality and rigour. However, the Government are entitled and expected to take a broader view, taking into account other relevant factors, which was necessary in this case. The ACMD referred to reports of increased neurological and social harms, such as drug driving and littering, associated with nitrous oxide misuse. This is alongside its widespread availability for illegitimate use and high usage, including among children and young people; I referred in my opening remarks to the large canisters that are now readily available.

As the noble Lord, Lord Coaker, noted, anti-social behaviour and visible drug use are issues of significant public concern, and we know that the harms of nitrous oxide misuse are being felt by communities. For that reason, the Government decided to go further than the ACMD’s advice to protect the public and seek to control nitrous oxide under the Misuse of Drugs Act 1971 as a class C drug. This will provide law enforcement with more tools to take action against illegitimate supply and use. As the noble Lord, Lord Coaker, helpfully pointed out, this is not the first time that a Government have disagreed with the ACMD: in 2014, for example, khat was controlled under the Misuse of Drugs Act 1971 contrary to the ACMD’s recommendations. I am also grateful to the noble Lord for mentioning the 2008 decision that reclassified cannabis as a class B drug against the advice of the ACMD; I applaud his decision then.

The Government consulted on this issue. We fulfilled our statutory consultation requirement to seek the views of the ACMD and considered its report carefully. However, as I just said, the Government are entirely permitted to take a broader view; the reasons for this are set out in our response to the ACMD, published on 27 March, which outlined the clear health and social harms associated with nitrous oxide use that led the Government to control the substance under the Misuse of Drugs Act.

The Government also undertook a public consultation to ascertain the nature and scale of legitimate use of nitrous oxide before formulating this policy, the results of which were published on 5 September. Provisions to enable legitimate drug use will be set out in a following SI that will come into force at the same time as this order, which is the normal legislative process for controlling a substance under the Misuse of Drugs Act 1971. So, in answer to the question from the noble Lord, Lord Coaker, there will be no gap.

On police support, we have heard from some in front-line policing who welcome these new powers. The National Police Chiefs’ Council is also supportive of this ban.

With regards to the treatment aspect, I could not agree with the noble Lord, Lord Coaker, more. It is never an either/or situation; it is a “both” situation. In relation to access to treatment, I refer Members to the Government’s drug strategy, From Harm to Hope, which was published in December 2021. It is clear about our ambition to achieve stigma-free treatment, providing the full positive effect of treatment services for those seeking help. Through this strategy, we are investing more than £2.8 billion over three years to support people through treatment and recovery; it includes support for those who have used a range of drugs, including nitrous oxide, and are suffering health harms. In the light of the reported rise in harms to individual users and society associated with heavy nitrous oxide use, we believe that it is necessary to take action also to restrict access to this harmful drug and reduce its misuse by, as I said, classifying it as a class C drug.

As regards legitimate use—obviously, those were legitimate questions from noble Lords—we are conscious of the need to ensure that our approach enables the continued use of nitrous oxide for legitimate and lawful purposes, of which there are many. The Government accepted the ACMD’s recommendation to consult on legitimate uses, as I said. We published our response on 5 September. That information is now being used to design the regime that will enable lawful use for legitimate purposes.

The exact proposals are still being drawn up and will be set out in a subsequent statutory instrument, as I said. However, it is worth repeating that the order we are debating today will come into effect at the same time as the accompanying amendments to the Misuse of Drugs Regulations 2001, so there will be no gap between the control of nitrous oxide under the Misuse of Drugs Act 1971 and provisions enabling its legitimate, lawful access.

The noble Earl, Lord Russell, asked about the risk of criminalising young people. That is a perfectly valid concern: will it result in the overcriminalisation of young people in particular given that the drug is so prevalent among those aged 16 to 24? However, we can assure the Committee that the Government seek a proportionate approach, in answer to the question of the noble Lord, Lord Coaker. We entrust that task to law enforcement agencies, which have a range of powers at their disposal to enforce the law—including out-of-court disposals, which are non-criminal sanctions, where they judge those to be proportionate and effective.

It is also our intention that the ban should have a preventive effect so that, over time, it reduces the number of users, in particular children and young people. We will update education resources for schools, directly accessing the children who may be at risk of becoming users. Those resources will describe the harms of drug taking and will communicate the new law to children. I also talked to the director of communications at the Home Office this afternoon before coming here; he assures me that work on this is well under way and, indeed, innovative.

I finish by saying to the noble Earl, Lord Russell, that the damage to their life prospects—

I am sorry to interrupt but the point that the Minister just made is really important; I know that other noble Lords are waiting for the next SI. If you are talking about young people and the director of communications at the Home Office is talking about innovative work, it is no good putting a press release out to the BBC. It must be on all the various platforms that young people look at. I am sure that the director of communications is on top of that but can the Minister ensure that this is on social media, whatever that means now, and is not just a press release to the BBC?

I am very happy to reassure the noble Lord on that point because I asked him the same question. He said, “Yes, absolutely, of course it will be. There is no point in shoving something through their letterbox”. I agree with him; we need to find alternative letterboxes, I suppose.

As I was saying to the noble Earl, Lord Russell, the damage to children’s life chances is certainly not as lasting as the neurological damage that they may suffer.

In answer to my noble friend Lord Hayward, I do not believe that the ban will provide criminal gangs with an opportunity to profiteer from supply; it will only shrink the space for them to do so. Nitrous oxide is already being supplied illegally for misuse by lone dealers and criminal gangs. These measures will give the police and enforcement agencies greater powers to stop illegal supply.

My noble friend also asked me about a possible review of the Misuse of Drugs Act. There are no plans to conduct a review of that that I am aware of. However, in July 2022, the Home Office launched a consultative White Paper—Swift, Certain, Tough: New Consequences for Drug Possession—which proposed new policies to reform the way the criminal justice system deals with adult drug possession offences, particularly tackling so-called recreational drug use. That consultation closed in October 2022. An analysis of the responses is under way.

The outcome of this analysis and the responses provided will obviously help to inform future policy direction in dealing with low-level position offences. A government response to the consultation will be published in due course. Of course, the Government keep drug legislation under review and will reconsider the status of particular substances where it is appropriate to do so, obviously while continuing to take into account advice from the ACMD.

All three noble Lords asked me about the expected costs of the policy, in particular its effect on prison places. As has been noted, the central estimate for custodial sentences is 200 per year. We are confident that there will be capacity for this potential increase given that prison occupation is already at 99% capacity. When we estimated the impact on prison places, we also looked at the average custodial sentence length and considered that alongside the volume of custodial sentences estimated per year. It results in an annualised estimate of 26 prison places across the UK. We are taking action to reduce the pressure felt on the prison estate, including expanding capacity by an additional 2,400 places beyond the 20,000-place build programme since September 2022, so we will always have the capacity to serve the needs of the courts.

Noble Lords asked about the increasing cost of the policy. I cannot really go into detail on that because there are so many variables in working out impact assessments of this type, as will be obvious. However, there are record numbers of police officers operating in this country now—more than there have ever been before—and I certainly believe that they have the capacity to deal with this.

In closing, I hope that I have answered all the relevant questions. I once again offer my thanks to all who participated. I am grateful for the insights and the challenge that has been brought to bear on this debate. This is an issue that must be confronted and dealt with before it gets worse. Public health and public safety are vital, as is the effort to tackle anti-social behaviour.

Before I commend this order to the Committee, I have just remembered that I have forgotten to say one thing, which is about an ongoing review. On 16 June, we committed to a post-implementation review of the control of nitrous oxide under the 1971 Act, as outlined in the Minister for Crime, Policing and Fire’s response to recommendations 2 to 7 of the ACMD’s updated harms assessment. That was published on GOV.UK. I am quite sure that noble Lords will remind me if that is not forthcoming but, for now, I commend the order to the Committee.

Will the Minister say a quick word about what else the Government are doing to regulate and stop the sale of these things, particularly to young people? He commented on the number of people who are using this drug. We are now criminalising them. What more are the Government doing to make sure that these things are not sold to children in the first place?

I think I have already answered that question with regard to criminal gangs. At the moment, of course, it is freely available through a number of perfectly legitimate channels. Obviously, guidance will be incredibly important. People who are selling it at the moment, particularly to children, need to understand their new responsibilities and the fact that they will be committing a criminal act. The fact is that the penalties for this are quite severe so I suggest that they would do well to pay attention to what they are doing and not fall foul of this law.

Motion agreed.