In its 51st Report of Session
22-23, the cross-party House of Lords Secondary Legislation
Scrutiny Committee considered the Draft Misuse of Drugs Act 1971
(Amendment) Order 2023 (the Draft Order) and has criticised the
Home Office for the process it followed before laying the order.
The Draft Order would reclassify nitrous oxide (commonly referred
to as laughing gas) as a Class C drug, thereby criminalising
possession, increasing restrictions around its use and increasing
the penalties for breaches of the law.
The report raises several issues and comments, particularly on
the lack of a public consultation. The Home Office told the
Committee that it did not hold a public consultation on the
reclassification of nitrous oxide because it was already “minded
to introduce the ban”. Consultations can serve to bring out any
unintended consequences or unforeseen difficulties with a policy,
drawing on the expertise of those operating in the field. The
report concludes that it would be an unwelcome departure from
good practice if Government could omit the consultation stage
simply because it had already made up its mind on the policy
direction. The Committee notes that, in contrast, the Home Office
did carry out a consultation on how exemptions from the ban
should be dealt with.
The Home Office said it had “engaged” with “interested
stakeholders”, such as the police, courts, drug charities and the
Border Force. However, the views of these bodies were not
recorded and the limited information provided suggested that the
feedback from the police was mixed. The report concludes that as
enforcement of the law change in the Draft Order would fall to
the police, Parliament should have been able to consider their
reservations before imposing this policy change.
The Committee also notes that the Government were proceeding with
the reclassification against the advice of its own independent
advisory body, the Advisory Council on the Misuse of Drugs.
In conclusion, the report draws the Draft Order to the special
attention of the House on the ground of inadequate
consultation and suggests that the House may wish to press the
Minister to provide further feedback on the policy to facilitate
better understanding.
, Member of the
Secondary Legislation Scrutiny Committee said:
“One of the benefits of conducting a full public consultation
before implementing changes in law which affect society at large
is that such an exercise can highlight difficulties that might
hinder effective operation of the policy. In this case, the
decision not to conduct a consultation, and the reason given,
that the Government had already decided to proceed, represent a
significant departure from best practice which is far from ideal
in law-making. This example should not set a precedent.
The discrepancy between the lack of consultation on the
reclassification but conducting one on the exemptions is
striking, while the lack of information on the feedback from key
stakeholders such as the police is particularly concerning. We
have therefore suggested that the House may wish to press the
Minister for further details to facilitate better understanding
and effective implementation.
Given the absence of a consultation, the lack of detail about the
views of interested parties and the weaknesses in existing
information about the effects of nitrous oxide, we urge the
Government to monitor the policy closely and conduct a
post-implementation review”.
