Misuse of Drugs Act 1971 (Amendment) Order 2023

Considered in Grand Committee

Moved by

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

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.

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”,

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—