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Misuse of Drugs Act 1971 (Amendment) (No. 2) Order 2017

Volume 785: debated on Tuesday 24 October 2017

Motion to Approve

Moved by

My Lords, I thank the Advisory Council on the Misuse of Drugs for its advice, which has formed the basis for the order.

The order relates to methiopropamine, commonly known as MPA. The effect of the order is to permanently control MPA as a class B drug under Part 2 of Schedule 2 to the 1971 Act. This will make it an offence to possess, produce, import, export, supply or offer to supply this drug without a Home Office licence.

MPA is a stimulant psychoactive substance similar in structure to methamphetamine. It has similar effects to other stimulants such as MDMA, amphetamine and cocaine. These effects include stimulation, alertness and an increase of energy and focus. Side-effects reported include abnormally fast heart rates, anxiety, panic attacks, perspiration, headaches, nausea, difficulty breathing, vomiting, difficulty urinating and sexual dysfunction.

The National Programme of Substance Abuse Deaths reported 46 cases where MPA was found in post-mortem toxicology between 2012 and April 2017. In 33 of these, MPA was implicated in the cause of death. In November 2015, the ACMD recommended that MPA be subject to a temporary class drug order. This followed reports that MPA had emerged as a replacement drug for the methylphenidate-based compounds which were subjected to a temporary class drug order at the time. The increasing number in use and the number of associated deaths and harms, together with the potential intravenous use, led to urgent advice from the ACMD to control MPA by way of a temporary class drug order.

In September 2016 the desired effect of the temporary class drug order appeared to have been successful, as the prevalence and problematic use had declined. However, the ACMD recommended that MPA be subject to another temporary class drug order to allow sufficient time to gather further evidence to recommend full control under the Misuse of Drugs Act 1971.

On 16 June this year, the ACMD reported that MPA is a drug which is being, or is likely to be, misused and that misuse is having, or is capable of having, harmful effects. As such, the ACMD recommended that MPA be permanently controlled under the Misuse of Drugs Act 1971 as a class B drug. The ACMD also found no evidence that MPA has any recognised medicinal use beyond potential research.

This order, if approved, will provide enforcement agencies the requisite powers to restrict the supply and use of MPA in this country. It will also provide a clear message to the public that the Government consider these substances to be a danger to society. We expect that the permanent control of MPA will continue to offer the notable impact it has provided following its temporary control under a TCDO. It is for these reasons that my honourable friend the Minister for Crime, Safeguarding and Vulnerability accepted the ACMD’s advice that MPA should be subject to the order.

It is intended to make two further related statutory instruments to come into force at the same time as the order, to add these substances to the appropriate schedule to the Misuse of Drugs Regulations 2001 and to the Misuse of Drugs (Designation) Order 2001. I commend the order to the Committee.

My Lords, I apologise to the Minister—I had not anticipated this debate starting quite so early. I well understand the need to control the supply of methiopropamine, or MPA, and I applaud the Government for seeking the professional opinion of the Advisory Committee on the Misuse of Drugs and for following its recommendations. As we know, Governments have not always consulted the ACMD, nor have they always followed its recommendations, so that is to be commended. It is unfortunate that the ACMD and the Government have decided that the most appropriate instrument for the control of this drug is the outdated Misuse of Drugs Act 1971, rather than the Psychoactive Substances Act. The main consequence of this decision is that the users of MPA will be subject to a criminal record and criminal penalty if found in possession of this drug. Users are likely to be people with severe health problems and in need of help and support.

The Minister will be aware that I and about 100 other MPs and Peers who are members of the APPG for Drug Policy Reform would be grateful for an indication from her, if at all possible, of when the Government will invite the ACMD or another independent body to review the operation of the 1971 Act and, indeed, the Psychoactive Substances Act 2016 and analyse the consequences of these Acts on: the level of addiction to the many banned substances; the substitution of new and perhaps even more dangerous substances for a banned substance immediately following a ban; and the level of use of alcohol and tobacco in response to the bans on these alternative drugs. I would be grateful if the Minister could inform the House whether the Government have any plans to evaluate the efficacy of the 1971 and 2016 drugs laws, particularly in the light of the UN Office on Drugs and Crime proposition at the UNGASS in 2016 that evidence-based public health policies are here to stay.

Does the Minister agree that neither of our drugs laws—neither the 1971 Act nor the 2016 Act—were in any way based on evidence that those legislative propositions would actually achieve the objectives that any Government want? For example, we know that the experience in Ireland of an almost identical law to our Psychoactive Substances Act 2016 was an increase in psychoactive substance misuse and drug deaths—anything but the result that the Government would hope, and that we would all hope, would be achieved by a new drugs law.

The Government refer to monitoring the control measures through the regulatory framework at paragraph 12.1 of the Explanatory Memorandum. I would be grateful if the Minister would indicate whether any analysis of the impact of the ban on this drug, and of the bans on other drugs, will be undertaken. I look forward to the Minister’s comments.

In strongly supporting this statutory instrument I have three points. First, the Government have acted with commendable speed to implement the recommendations on MPA given by the advisory committee about four months ago, as the Minister said. However, I seek confirmation that they will always be as swift as possible in the implementation of such future recommendations of these experts. That is provided, of course, that they agree with them—the noble Baroness, Lady Meacher, has pointed out that from time to time they have not necessarily agreed with the experts in their recommendations.

I like, respect and need the views of experts, particularly those of my doctor and my dentist. I value expert advice all the way down the line, but in the end, even they may not always be right, whatever “right” turns out to be. In the end, yet again, Ministers have to decide. It is sometimes difficult for Ministers to turn down expert recommendations, but they have to make their decisions not as experts but in the public interest as members of the Government. I support them also in making those difficult decisions.

Secondly, we have many other experts around to help us, such as those in the World Health Organization’s Expert Committee on Drug Dependence. That committee gave its views on this very matter last November. It advised, just like the advisory committee, that there is no known medical, research or therapeutic use for MPA; it is just used to abuse and there is no get-out in saying that it can be medically helpful in any way. It has all the side-effects that the Minister pointed out, as well as one that I think she missed—talkativeness, something that some would claim sometimes affects Members at both ends of the Palace of Westminster. I would not suggest, of course, that this is due to substance abuse; it is just due to genetic problems or lack of self-control.

Of course, the World Health Organization has its own problem with experts. Having given expert and excellent advice on this issue, its experts then concluded that the elected dictator President Mugabe should be hallowed for a while as its goodwill ambassador, rapidly backtracking when it spotted that on that occasion they had made a major mistake.

Thirdly, the noble Baroness, Lady Meacher, who knows much more about this stuff than I ever will, pointed out that you sometimes get substitution. I worry that there are harder substitutes coming in, particularly the ever-stronger strains of cannabis such as Nova OG, produced by cultivation companies in the United States, and described by one marketing organisation in the United States—hard to resist—as,

“extremely potent, top-shelf, designer bud”.

“Queue up and have this” if you cannot get the other stuff that we are trying to make impossible to get. I apologise, because I am a latecomer to this subject and to this debate, that I did not give the Minister earlier notice, but will she be ready and prepared to ask for the advice of the advisory committee on these much stronger strains of cannabis and to act just as quickly if it is thought to be a danger in the United Kingdom? Of course, a letter in the Library of the House would be a very adequate response to that point.

Since I, too, was caught out by the earlier than anticipated start of this debate, I can thank the Minister for only that part of her explanation of the reasons for and purpose of the draft order that I actually heard. The purpose of the draft order, as has been said, is to make it an offence to possess, import, export, produce, supply or offer to supply the drug methiopropamine, or MPA, without a Home Office licence. MPA is a stimulant, psychoactive substance that has been subject to temporary control orders, the latest of which is about to expire—at the end of next month, if memory serves me right. There is evidence of MPA having adverse effects when taken, including abnormally fast heart rate, anxiety, nausea and breathing difficulties. I have to say that my list is more abbreviated than that given by the Minister when she introduced the order.

MPA has been associated with a number of deaths in the last five years and, as the Minister said, there were 46 cases where MPA was found in post-mortem toxicology, with MPA being implicated in the actual cause of death in 33 of those cases between 2012 and 2017.

MPA has not infrequently been marketed as a legal alternative to cocaine. In June of this year the Advisory Council on the Misuse of Drugs, the ACMD, indicated that MPA continued to be misused and, as a result, was having harmful effects that could constitute a social problem. The ACMD recommended that MPA should now be permanently controlled as a class B drug under the Misuse of Drugs Act 1971—which means, as I understand it, that among other things, including higher maximum sentences, possession of MPA also becomes an offence, which is not the case for substances controlled under the Psychoactive Substances Act 2016.

The ACMD also found that MPA had no recognised medicinal use, or industrial or commercial benefits other than potentially for research. I simply conclude by saying that we support the decision to accept the ACMD’s recommendation, and hence we support this order.

My Lords, my noble friend Lord Newby made the point last week, when the Leader of the House asked for this House to suspend its Standing Orders in order to consider this matter today, that this legislation has not been scrutinised by the Joint Committee on Statutory Instruments because of the Government’s failure to appoint their Commons members of that committee. This is clearly unacceptable and must be resolved as soon as possible.

In this particular case, the order is the result of a recommendation, as we have heard, by the Advisory Council on the Misuse of Drugs to permanently classify the drug MPA as a class B drug. I am therefore confident in supporting this order as the recommendations of the ACMD are evidence based.

However, the comments of the parliamentary Under-Secretary of State for the Home Office to the first Delegated Legislation Committee in the other place yesterday, which presumably were a repetition of what the Minister said this evening to the House—again, I apologise for being slightly caught out by the early start of this particular debate—draw questions around bigger issues about the Government’s approach to controlling drug misuse.

MPA is a synthetic drug designed to replicate the effects of cocaine or MDMA. MPA started off life as a legal replacement for these class A controlled drugs. Prior to the Psychoactive Substances Act and the temporary class drug order, MPA would have been legal to both supply and possess. As we have heard, the Psychoactive Substances Act permanently made manufacture and supply of the drug illegal, but not possession, while the TCDO and this measure make possession as well as manufacture and supply illegal. Whether it sends a message to users about how dangerous the drug is is questionable.

The development of synthetic alternatives to existing controlled drugs—and in this case I am thinking in particular of things such as spice, the synthetic alternative to cannabis—runs the risk of creating even more toxic, and far more dangerous, drugs than the drugs they are designed to replace. The risk of continuing with a prohibition-based strategy of controlling the misuse of drugs is likely to increase the number of drug-related deaths.

Can the Minister tell the House, or write to me subsequently to tell me, how many deaths have resulted from the misuse of cocaine and MDMA between 2012 and 2017, compared with the 46 cases where post-mortem toxicology showed traces of MPA, and the 33 cases where MPA was implicated in the actual cause of death, as a proportion of arrests for possession of each type of drug—which we can assume is a proxy for how much cocaine, MDMA and MPA is being used? Can the Minister also tell the House how many deaths have resulted from the misuse of cannabis between 2012 and 2017?

If MPA is as dangerous, or more dangerous, than cocaine or MDMA, the question must be: why is it being classified as a class B drug while the others are classified as class A drugs? If MPA is, as I suspect, more dangerous than cannabis, at least in terms of fatalities, why is it in the same class of drugs as cannabis? Assuming, as I do, that the ACMD has made the right evidence-based decision in terms of its recommendations as to which class MPA should be placed in, what does this say about the classification of cocaine, MDMA and cannabis?

The point I am trying to make is that the current classification of drugs under the Misuse of Drugs Act lacks credibility, certainly with users. No one I know who misuses drugs starts from a point of asking, “What class is it in?” when deciding which drug to take.

We should be taking a harm reduction-based approach to the misuse of drugs, which should be treated as a health issue and not a criminal justice issue. That having been said, just because the classification of drugs under the Misuse of Drugs Act lacks credibility and other drugs may be wrongly classified, this does not mean that this evidence-based recommendation from the ACMD is wrong. On that basis, we support the order.

The noble Lord, Lord Paddick, made reference to the unusual circumstances in which this order comes to the House this evening. It has not been scrutinised by the Joint Committee on Statutory Instruments because that committee has not been re-established because of the failure of the other place to provide its members to the committee. I was a member of the Joint Committee in the last Parliament, and I am looking forward to resuming work, I hope, at an early point in this Parliament.

The committee receives advice from a formidable array of legal experts. They invariably find points that need correction—sometimes smaller, sometimes larger. I have just one question for my noble friend. In the absence of the committee, is she satisfied that this order has been subjected to sufficiently rigorous scrutiny by legal experts?

My Lords, I thank noble Lords for the contributions that they made to the debate, and the helpful points that have been raised. I trust that I made the case based on the available evidence and the advice provided by the ACMD that this order to permanently control MPA as a class B drug, under the Misuse of Drugs Act 1971, should be approved.

The noble Lord, Lord Paddick, rightly makes the point about the JCSI and the failure to appoint members to the committee. My noble friend the Lord Privy Seal apologised for that to this House this time last week. My noble friend Lord Lexden makes the same point and asks if we are satisfied that this order has been given the correct amount of scrutiny before it comes to your Lordships’ House. It has gone to the other place. It has come here on the advice of the ACMD and I am satisfied that, in getting full airing from both Houses, we have given it correct scrutiny. I appreciate that many noble Lords almost did not get here tonight because events moved a lot more quickly than we thought. The timescales for achieving the full control of MPA under the 1971 Act, before the expiry of the temporary class drug order, are very tight. Further delay in attending to JCSI clearance means that there is a significant risk that we would not be able to pass scrutiny and finish debate in time for the Privy Council to make the order at its meeting on 15 November. The noble Lord, Lord Newby, made the point that it is most important that this order is considered in good time. I must reiterate my noble friend the Lord Privy Seal’s apology on this, but I am satisfied that scrutiny is being fully applied to it, particularly as the noble Baroness, Lady Meacher, is in her place.

The noble Baroness, Lady Meacher, talked about the outcome of the ban and asked whether we have done any analysis of it. We have seen a significant fall in the use of new psychoactive substances among 16 to 59 year-olds in the past year, from 0.7% in the 2015-16 Crime Survey for England and Wales to 0.4% in 2016-17.

I was asked why this was being done under the Misuse of Drugs Act, not the Psychoactive Substances Act 2016. Given the reported risks and known harms that this substance has already posed to public health, the ACMD has advised that the MDA is the preferred option for control. Permanent control of MPA under the MDA—this is a real tongue-twister—utilises the stricter offences of production and distribution under any circumstances without a licence. Permanent control of MPA also makes the act of possession an offence under the MDA and increases the maximum penalties for the other offences. The stricter offences and penalties will prove a stronger deterrent to the supply and possession of these substances.

The noble Baroness also asked about plans for the Home Office to review the 1971 Act. We have no plans to do so, but Section 58 of the Psychoactive Substances Act commits the Secretary of State to review the operation of the Act, prepare a report of the review and lay a copy of it before Parliament 30 months after commencement of the Act. This review will therefore report its findings in 2019.

The noble Lord, Lord Paddick, asks why MPA is classed as class B when it is believed to be more dangerous than MDMA and cocaine, and he gave some compelling examples of synthetic versions of traditional drugs, if you can call them that. In the past year, cocaine was related to 371 deaths. That confirms its status as class A drug-appropriate. I will write to him on the other points he raised on the comparisons between the synthetic versions of some of the more traditional drugs and the number of deaths associated with them, particularly cannabis, because I know the noble Baroness, Lady Meacher, is listening with intent.

On that note, I hope I have answered most of the questions. If I have not addressed all of them, I will of course write. I think there was a question from my noble friend Lord Patten about advice from the advisory committee on stronger forms of cannabis. I will write to him on that.

Motion agreed.

Sitting suspended.