Lack of consultation on proposed changes to drug laws is not best practice – Lords report criticises the Home Office

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.

Lord Hutton of Furness, 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”.