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.
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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.