15 April 2010


Only the most optimistic (or intoxicated) observer could have expected a different outcome, but in a very short period of time, mephedrone (MMCAT, Meow, Bubble etc) will have been added to the rapidly expanding list of "Controlled Drugs." The only thing that may have been a suprise was the speed with which the Government managed to push through legislation in the Parliamentary 'wash-up' period. That, and, perhaps the spineless compliance of the ACMD and a collection of Politicians who saw fit to rubber-stamp the whole process in the hope that they may garner a few votes on the back of this prohibition.

Having driven itself in to a full state of rabid, indignant, hysterical and ill-informed froth over Mephedrone, (see previous post MMCAT Madness) the media calls for it to be banned "immediately" were clearly being heard loud and clear within Government. But what could the Government do? With a Statutory obligation to consult the ACMD, the Government could not simply legislate. And the recent travails at the ACMD would normally have slowed the process a little. But the timescales here were tight and critical: receive advice from the ACMD AND put legislation before the Commons and then the Lords and then secure an Order in Council, all before the Prorogation of Parliament on the 8th April 2010.

But the Government appears to have done it. The Home Office widely announced that the prohibition of Mephedrone and related compounds would come in to force on the 16th April 2010. This announcement, made on the 29th March, was two days before the ACMD Published their reccomendations, and a week before the matter went before Parliament. It was very clear at this stage that the matter was a "done deal" and that Parliamentary approval was a mere formality.

The ACMD appears to have dutifully played their part. Interim Chair, Les Iversen, formally wrote to the Home Office on the 31st March 2010 to offer the ACMD's consideration and on Mephedrone. It had presumably been offered to the Home Office, privately, sometime before this.

The drafted legislation was put before the House of Commons on the 7th April (see HANSARD)
and a Motion to approve it was passed; then it went before the Lords, and was briefly discussed (Hansard record) where it was similarly rubber-stamped.

Contributions from Victor Adebowale, a member of the ACMD, Chief Executive of Turning Point and a member of the Lords were noticeable by their absence. One would hope that his reticence was a reflection of his shame at having been a part of this wholesale abandonment of evidence-based legislation and policy making.

The whole process, and the media storm that has driven it, is deeply depressing and distasteful. It may well be that Mephedrone will ultimately prove to be a harmful and dangerous substance. But at the time of the drug being added to the list of Controlled Drugs, not one fatality in the UK had been conclusively attributed solely to Mephedrone. The jury was still out on how risky the drug was, and how to manage this risk. But the Government clearly felt that, with a close-fought general election looming, they could not allow for the perception of being soft on drugs to offer a soft target for electoral attacks. And likewise, the Conservatives and Liberal Party could equally not appear to oppose legislation that would prohibit Mephedrone. So all three parties signed up to a process that abandoned an evidence base and proceeded on the basis of supposition and assumption.

The complicity of the ACMD, with the notable exceptions of Eric Carlin and Polly Taylor who resigned rather than participate in the charade is disappointing. It does not bode well for the future if the Interim Chair and remaining members feel sufficiently cowed by an outgoing Goverment at the end of a Parliament that they need to rush through their recommendations - without them being put to the full Council. In the end only the Technical Group of the ACMD looked at the drug.

This matter was forcefully brought home by LD MP Dr Evan Harris who, along with Dr Brian Iddon are the only politicians to appear to have come out of this with any integrity. Harris stressed the extent to which the rules on consultation had been disregarded and warned of possible consequences, saying "the Government, who acted not just without considering the report-which they were bound to consider under the Government principles issued on Budget day-but before it had even been published. In fact, according to Eric Carlin, who resigned last week, when the chair of the ACMD left to brief the Home Secretary for a press conference the ACMD had not even finished the report. The Government responded to the press not only on a report that had not been considered, that had not been published and would not be published for three days, but on a report that had not yet been completed. That makes a travesty of the advisory process.

If, as a result of that, this statutory instrument, if-or rather, I suspect, when-it is passed by both Houses-is challenged in the courts as being ultra vires and the Government lose the case, something which, as has been said, should have been done much earlier, will be delayed by months." (Hansard)

Ironically, in the small window between deciding to prohibit Mephedrone, and being able to enact legislation, the Government suddenly found a collection of measures that they could use to restrict and reduce availability without needing to Schedule the drug. They could stop the compound being imported outright; Trading Standards could act where the drug was being "mis-sold" as Plant Food or Bath Salts; Frank could be used to provide more awareness and publicity rather than whittering on about Pablo the Drug Mule Dog. Further, schools could confiscate the drug if pupils brought it in; head-shops could be visited and warned. So without any changes to the MDA 1971, measures could be taken.

It's a worry that almost a year after Mephedrone became an issue, the Government only now arrives at these measures. None of them require ACMD guidance; none required Parliamentary time. All that was required was the imagination and will to act, which seems to have emerged late in the day and coincidentally close to an Election.

Historically, when the Government wants to add or reschedule drugs, there is a period of consultation prior to legislation being passed. While the Government has a statutory obligation to consult the ACMD, the wider public consultation is not mandatory, but has happened with all previous drugs legislation. Most recently, when the Government was considering adding GBL and synthetic cannabinoids to the list of Controlled Drugs, public consultation took place. Ironically, even though the drug has been conclusively attributed to at least one fatality, the demands of Industry were held of greater importance than the risk to users. Although a decision was made to make GBL a controlled drug (Class C) because of its uses by industry a decision was made to make it "illegal to possess, supply, produce and import/export GBL and 1,4-BD for purposes of personal ingestion."

The irony of this outcome cannot be under-played. In order to protect jobs, industry and the economy, GBL is added to the list of controlled drugs but provided it is not supplied for human consumption, such supply will remain lawful. In this regard, the Government has created a "plant-food" model akin to the Mephedrone situation. Supply GBL "not for human consumption" and require people to sign some sort of statement and it would be difficult, if not impossible, to prosecute suppliers for selling GBL. Prosecuting users for possession is also well-nigh impossible, as any savvy user will know to say that their possession is for alloy cleaning, nail-polish removing or some other purpose and the onus is on the CPS to prove that the purpose of possession was ingestion.

The "mephedrone as plant-food" problem contributed directly to the risk and lack of information relating to the drug. The situation arose thanks to the MHRA's "borderline products" category which created and caused the problem.

Products which may contain pharmacologically active substances, but are not intended for medicinal use may fall in to this category of Borderline Products, which the MHRA assesses on a case by case basis. They take in to account "any information which may have a bearing on the product's status, for example, the claims made for the product, the pharmacological properties of the ingredients, whether there are any similar licensed products on the market, and how it is presented to the public through labelling, packaging, promotional literature and advertisements."

Selling a medicine which has not been approved can carry a two year sentence. But by ensuring a product is not labelled or sold or promoted for ingestion, this problem can be avoided. Hence the "plant food" or "bath salts" labelling.

But the problem that came on the back of it was that the dodge of labelling effectively prevented retailers from providing dosing or harm reduction information. With a licensed product, information about not mixing with other drugs, hydration or health risks could have been provided. But having been boxed in to a position of selling it as "plant food" no chance of providing dosing information was possible.

It's worth contrasting this with how magic mushrooms were sold prior to them being made illegal. Then, information about the relative potency of mushrooms could be offered, and guidance on dose ranges was offered. Instead the MHRA creates an incentive to "prove" a substance is not a medicine, and hence create increased risk when such substances are used as intoxicants. Strange then that the Home Office should endorse exactly the same model for GBL control. Money talks - money walks.

The GBL situation emerged in part thanks to lobbying by Industry during a consultation period before the legislation being drafted. The ACMD recommended consultation, and the Government, without the incentive of an election, consulted over a three month period. However, with Mephedrone (callow ACMD, media storm, election) the Home Office felt that there was such danger that "in light of the urgent need to act to protect public health, no public consultation has been carried out prior to the laying of this Order. In providing its advice, the ACMD consulted a range of experts in this field and concluded that the drugs subject to this Order have no legitimate use (ref)

But the story doesn't wholly end with the passing of the legislation. Buried in all the papers that have started to come out from the ACMD, from the Home Office and the Parliamentary Stationery office, a few little gems have come out which are worthy of further comment.
The first is the significant amounts of Revenue that the Government has received from what Gordon Brown described as "evil" drug.
A Written Question from Mr Burrowes MP on the 7th April 2010 asked "how much has been collected in import duty on mephedrone in each of the last three years."

The figure for 2009 was just over £250,000 - representing a taxation at a rate of 6.5%. This means that the minimum declared value over Mephedrone imported in 2009 must have been in the region of £4m.

The figures for 2010 haven't been made available yet, and will obviously be incomplete as will only be for the first three months of the year until imports were banned. But it will be interesting to learn the 2010 figure, as it will indicate how much volume of imported mephedrone changed. Interestingly, The amounts collected in 2007 and 2008 were also significant - between £150-170,000.

It will be more interesting still to learn if the Treasury will take the £1m plus earned from Import duties, and the income from VAT received from Mephedrone sales, and will be donating that money to drugs education or treatment. Given the swingeing cuts faced by drug services in the coming financial year, such a modest windfall could be highly useful.

Alternatively the money could be refunded to the numerous retailers who paid the money to the Government in Import Duty. Given the news that the Local Government Association is trying to impound remaining stocks prior to a ban coming in to force, it would seem only reasonable that import duty paid on a legitimate product should be refunded if the state arbitrarily deems the substance illegal, especially without a reasonable notice period,

The other paper which is worthy of comment is the appalling Explanatory Memorandum and Equality Impact Assessment which the Home Office was required to carry out prior to putting the Legislation before Parliament. This document recaps the legislative proposals and looks at the potential impact of them. The document is dated March 2010. Importantly it is signed off by the Minister David Hanson on the 30th March 2010. This is the day before the ACMD published their advice on Mephedrone, which were dated 31st March 2010. Given the content of the Equality Impact Assessment, and the drafting time required, it is obvious that the Home Office received the ACMD reccomendations in a draft form prior to their official publication - in order presumably to prepare the required legislative paperwork within the tight timeframe of the dissolution of Parliament.

A close look at the Explanatory Memorandum and Equality impact assessment highlights how quickly and badly this piece of legislation has been prepared, and with how little consideration.

The first thing that is woefully apparent is the extent to which this is legislating without a clear idea of the scale of the problem, or the impact of the solution; so the report says "Any real costs associated with [prohbition] cannot be predicted. Not only is the scale of the availability of mephedrone and other cathinone derivatives unknown, but the impact on the police and consequently the CJS is dependent on the policing response to its control as Class B drugs." So in short we don't know how many people use mephedrone, how it should be policed post prohibition, and how many people, especially young people will be criminalised as a result.
The report admits that "there is no current direct evidence that mephedrone cause any significant social harms such as acquisitive crime and anti-social behaviour."

The Equality Impact Assessment is meant to look at if any particular population is disproportionately affected by the legislation. The only group noted is young people; the EIA says "Age Indications: from small-scale surveys (e.g.Mixmag, Frank Website) and anecdotally suggest young people are the largest consumers of these substances. The change in policy will protect the huge number of young people currently using these substances or intending to do so fromthe harms caused by these substances."

This is a very loaded assertion. Having already acknowledged that we have no evidence of the scale of mephedrone use, the EIA makes the unwarranted assertion that there are "huge numbers" currently using the drug, and that prohibition will protect them from harm. There is no acknowledgement that prohibition may criminalise young people, drive up the price, or bring young people in to contact with other controlled drugs. Indeed the evidence that was available suggested that the biggest user groups were young adults with a mean age of use of 23, and the biggest group contacting helplines about Mephedrone were 19-25 year olds. So the primary user group were young adults. It's probably one of the benefits of products primarily sold to people who hold credit or debit cards, or PayPal accounts. It makes it that much harder for young people to access.

The EIA goes on to say "It is not anticipated that the change in policy will have any significant adverse impact on this group of users." Which given that some young people will receive criminal records as a result of the change is hard to fathom. Maybe this isn't counted as an "adverse impact."

One of the areas where the EIA is most misleading is in the section entitled "How did your engagement exercise highlight positive and negativeimpacts on different communities?" This section says, in the age section "No concern expressed in response to the public consultation over the impact of controlling these drugs on age." This is a complete misrepresentation. There was no Public Consultation, and so it is disingenuous to say that no concern was expressed.

The deliberately misleading statements continue, in the section asking "What were the main findings of the engagement exercise and what weight should they carry?" The answer given is "The engagement exercise showed support for control measures for these drugs, but did not raise any findings associated with equality issues." Again, a lie. There was no "engagement exercise." So to claim that is showed support for the measures is not true.

And while no consideration has been given to the direct impact of prohibition there was no awareness or consideration of the indirect impact - that as a controlled drug the cost of mephedrone will go up, quality will drop, and trade will switch to people prepared to take the risks of dealing in controlled drugs. Mephedrone won't go away; it will shift to a different market. And as availability drops, we will probably see a switch back to cocaine. The cartels will be celebrating even while a credulous media congratulate themselves on bumping a Government in to action.

This isn't the first time that rushed drugs legislation has been pushed through prior to an election: the proposed revision to Section 8 of the MDA was squeezed through in the wash-up period, and later revoked. Likewise, the Drugs Act 2005 received assent in April 2005, the month before the General Election. Much of it has never been used since, or was since abandoned.

The only thing robustly evidenced base is that the Government has a poor track-record of passing drugs legislation prior to elections. They've done it again with mephedrone. And, sadly, will not be in office in a month's time to be held to account for it.