Deregulation Act 2015

Deregulation Act 2015

2015 CHAPTER 20

Commentary on Sections

Schedule 21: Poisons and explosives precursors

828. Paragraph 1 of this Schedule abolishes the statutory advisory committee known as the Poisons Board and makes various amendments in consequence of that abolition.

829. Paragraph 3 substitutes a new section 2 of the Poisons Act 1972. The new section defines some key terms used in the Poisons Act. In particular, it defines which substances are to be regulated by the Act. These are referred to as “regulated substances” and comprise “regulated explosives precursors” and “regulated poisons”. In each case, the substances to be regulated are listed in new Schedule 1A to the Poisons Act 1972. The list for explosives precursors comes from Annex I to EU Regulation 98/2013 and the list for poisons comes from Part I of the Poisons List (made under existing provisions of the Poisons Act). “Regulated substances” also include mixtures and other substances that include a substance listed in Part 1 or 2 of Schedule 1A. In some cases, substances are only regulated if they are present in a concentration above a % mentioned in Schedule 1A. Substances are not “regulated”, however, if they are either “medicinal” or contained in a “specific object”, as defined in section 2.

830. In addition to “regulated substances”, section 2 defines a further category of substances referred to as “reportable substances”. These are mainly only relevant for the offences in section 3C (which relate to the reporting of suspicious transactions, thefts etc). The list of “reportable explosives precursors” comes from Annex II to the EU Regulation and the list of “reportable poisons” comes from Part II of the Poisons List.

831. Paragraph 3 also inserts a new section 2A into the Poisons Act 1972. This contains a power to amend Schedule 1A by regulations.

832. Paragraph 4 inserts sections 3 to 3C into the Poisons Act 1972. These sections create a number of offences in line with Articles 4, 5 and 9 of EU Regulation 98/2013 and with existing section 3(1)(a) and (2)(b) of the Poisons Act.

• New section 3 makes it an offence for a member of the public to import, acquire, possess or use a regulated substance without a licence. But, in the case of possession and use, the prohibition does not begin until 3 March 2016 (in line with Article 16 of the EU Regulation).

• Section 3A imposes certain duties on those supplying regulated substances to members of the public. Breach of these duties will be an offence.

• Section 3B prohibits the supply of regulated poisons to members of the public by anyone other than a pharmacist.

• Section 3C requires businesses to notify the Home Office of any suspicious transactions involving regulated substances or reportable substances or any disappearances or thefts of such substances. Failure to notify will be an offence.

833. In ease case, the offences are subject to any general dispensation or relaxation that is made by virtue of section 9B (see below).

834. Paragraph 6 inserts two new sections into the Poisons Act 1972 in connection with the new licensing regime needed in consequence of section 3.

• Section 4A provides for the granting by the Home Office of licences to do the things for which a licence is required under section 3 (importing, acquiring, possessing or using a regulated substance). The new powers comply with the requirements of Article 7 of EU Regulation 98/2013. The procedure for applying for a licence is to be set out in regulations to be made by the Secretary of State.

• Section 4B allows for the recognition of equivalent licences granted by the authorities in other EU Member States or in Northern Ireland. This will mean that a person does not commit an offence under section 3 if he or she holds either a licence granted by the Home Office or a licence granted by one of those other authorities.

835. Paragraph 7 omits sections 5 and 6 of the Poisons Act 1972, and removes the requirements for retailers of substances listed in Part II of the Poisons List 1982 to annually pay and enter names into a local authority list.

836. Paragraph 8 replaces section 7 of the Poisons Act 1972 with a new section providing the Secretary of State with power to make regulations about, amongst other things, the importation, supply, acquisition, possession or use of substances by or to any person or class of person.

837. Paragraph 9 inserts a new section 7A into the Poisons Act 1972 creating a defence in relation to some of the offences where the accused lacks the necessary knowledge. This operates where the accused proves (on a balance of probabilities) that he or she lacked the necessary knowledge.

838. Paragraph 10 amends the penalty provisions in section 8 (penalties) of the Poisons Act 1972 and inserts a new section 8A dealing with the liability of directors and other officers who consent to or connive in an offence.

839. Paragraph 11 makes consequential changes to the powers of inspectors appointed by the General Pharmaceutical Council under section 9 of the Poisons Act 1972 to take account of the new offences created by the Act.

840. Paragraph 12 applies certain powers of entry and search conferred by the Police and Criminal Evidence Act 1984 to the newly created summary only offences. This only applies to offences in England or Wales.

841. Paragraph 13 inserts a new section 9B into the Poisons Act 1972. Section 9B makes provision allowing the Secretary of State to relax or disapply the requirements of the Poisons Act 1972 in certain circumstances such as when a substance is used for a specific purpose. The new power may be used, for example, to replicate some of the exemptions currently contained in Schedule 4 to the Poisons Rules (the Poisons Rules are made under existing section 7 of the Poisons Act). Section 9B also allows the Secretary of State to restrict the exclusions in section 2 for substances that are “medicinal” or contained in a “specific object”. For example, this power could be used to confine the “medicinal” exclusion to cases where the medicine is supplied on prescription.

842. Paragraph 16 inserts new Schedule 1A into the Poisons Act 1972 which lists reportable substances and regulated substances (as defined) and any relevant concentration limits.

843. Schedule 21 comes into force on the day on which the Act is passed so far as is necessary for enabling subordinate legislation to be made. It comes into force for remaining purposes on a day to be appointed by the Secretary of State in a commencement order.