Overview Schedule 17: Temporary class drug orders
405.Paragraph 2 amends section 2 of the Misuse of Drugs Act 1971 (“the 1971 Act”) to extend the definition of “controlled drugs” to include a drug subject to a temporary class drug order. Unless otherwise specified (see paragraphs 7 and 10 of the Schedule), all references to controlled drugs in the 1971 Act, and in other legislation that applies the 1971 Act meaning of “controlled drugs”, will include a temporary class drug.
406.Paragraph 3 inserts new sections 2A and 2B into the 1971 Act and provides that the Secretary of State may make an order (a ‘temporary class drug order’) if two conditions are met.
407.The first condition is that the substance is not a Class A, B or C drug. The second condition is that the Secretary of State has either consulted in accordance with section 2B and has determined that the order should be made, or otherwise has received a recommendation to that effect from the Advisory Council on the Misuse of Drugs (“the Advisory Council”). Consultation under section 2B requires the Secretary of State to consult the Advisory Council or (in certain urgent cases) it’s Chair or another designated member of the Advisory Council. After carrying out such consultation the Secretary of State can only proceed to make the order if it appears that the drug is one that is being, or is likely to be, misused, and that misuse is having, or is capable of having, harmful effects. A corresponding requirement applies before the Advisory Council may make a recommendation under section 2B for the making of such an order (see section 2B(6)).
408.A temporary class drug order expires at the end of twelve months unless, if earlier, the temporary class drug is brought under the permanent control of the 1971 Act by virtue of an Order in Council under section 2(2) of the 1971 Act or if the temporary class drug order is revoked. A temporary class drug order is a “made affirmative” order, which must be laid before Parliament after being made and which requires a resolution of both Houses within 40 sitting days if it is to remain in force.
409.Paragraphs 4 and 5 amend sections 3 and 4(1) of the 1971 Act to apply the restrictions of importation and exportation, and production and supply, to a temporary class drug.
410.Paragraph 6 disapplies section 5(1) and section 5(2) of the 1971 Act such that it is neither unlawful nor an offence under the 1971 Act to have a temporary class drug in a person’s possession, unless that possession is in connection with an offence or prohibition under other provisions of the Act (see sections 3, 4, and 5(3)). So the offence of possession with intent to supply (section 5(3)) will apply to a temporary class drug.
411.Paragraphs 7 and 8 (complemented by amendments to the 1971 Act by virtue of paragraphs 10, 11, 12 and 14) provide that sections 7, 10 and 22 of the 1971 Act will not apply to temporary class drugs. Instead, the new section 7A confers power to make in the temporary class drug order any provision in relation to a temporary class drug that could be made in relation to other controlled drugs under section 7(1), 10 or 22.
412.Similar to the power that the Secretary of State has under section 7 of the 1971 Act, under section 7A(2) a temporary class drug order may make provision to except a temporary class drug from the restriction on importation, exportation, production and supply. However, the Secretary of State is not required to make any provision of a kind mentioned in section 7(3)(a) (exceptions for doctors, dentists, vets etc) in relation to a temporary class drug, although the Secretary of State retains a the discretion to make any such provision should she feel it appropriate. The Secretary of State may also make provision (which may take the form of applying any provision made under sections 7(1), 10 or 22 of the 1971 Act) so as to allow for the lawful production and supply of a temporary class drug and provision for preventing misuse of controlled drugs including safe custody.
413.Paragraph 9 amends section 9A of the 1971 Act to apply its provisions, which prohibit the supply etc of articles for administrating or preparing controlled drugs, to a temporary class drug. For the purposes of section 9A(1), administration will be “unlawful” in relation to a temporary class drug unless, in the case of a person who is administering the drug to himself or herself, that person’s possession of the drug is to be treated as excepted possession for the purposes of the Act (see new section 7A(2)(c) inserted by paragraph 8 of the Schedule).
414.Paragraphs 13 and 18 make consequential amendments to sections 18 (miscellaneous offences) and 30 (licences and authorities) of the 1971 Act.
415.Paragraph 15 amends section 23 to apply its provisions relating to search and obtaining evidence in respect of a temporary class drug as it applies in relation to any other controlled drug.
416.Paragraph 16 insert a new section 23A which makes provision for the power to search and detain a person (or vehicle or vessel) where a constable has reasonable grounds to suspect that the person is in possession of a temporary class drug; to seize, and detain anything which appears to be a temporary class drug; and to dispose of the drug in such manner as the constable thinks is appropriate if he reasonably believes that it is a temporary class drug. Subsection (6) provides that a person who intentionally obstructs a constable in the exercise of the constable’s powers under this provision commits an offence.
417.The new power under section 23A is in addition to the power under section 23. However, the power under section 23(2) will apply to a temporary class drug only if a constable has reasonable grounds to suspect that the person’s possession of the drug is “in contravention of this Act”. Since the restrictions on possession in section 5(1) and (2) will not apply to temporary class drugs, the section 23(2) power would apply to a temporary class drug only if the constable has reason to suspect that the person’s possession is in contravention of other provisions of the Act (e.g. sections 3, 4, or 5(3)). Therefore, the new power under section 23A ensures that a constable can search for, and seize, a temporary class drug in cases where there is no reason to suspect a contravention of any other provision of the Act in relation to the drug.
418.Paragraph 17 provides for the penalties prescribed under Schedule 4 to the 1971 Act in respect of Class B controlled drugs to apply, where appropriate, to offences committed under the 1971 Act in relation to a temporary class drug.
419.Paragraph 19 inserts a definition of “temporary class drug order” in section 37(1) of the 1971 Act (interpretation).
420.Paragraph 20 enables the Secretary of State to make a temporary class drug order for the whole of the UK including Northern Ireland.
421.Paragraphs 21 and 22 make consequential amendments to Schedule 1 to the Customs and Excise Management Act 1979 and section 19 of the Criminal Justice (International Co-operation) Act 1990 to ensure that temporary class drugs are subject to these provisions in the same way that they apply to Class B drugs.