This Bill rewrites how substances are added to or removed from Schedule 2 of the Misuse of Drugs Act 1971. It replaces the existing power in section 2(2) so that the Secretary of State amends Schedule 2 by statutory instrument, but only after a draft instrument has been laid before and approved by resolution of both Houses of Parliament and only after consultation with or on the recommendation of the Advisory Council on the Misuse of Drugs (ACMD).
Practically, the Bill shifts a technically executive function into a procedure that requires explicit parliamentary approval and formal ACMD input, and it aligns temporary class measures with that route. The change increases democratic accountability over classification decisions but also raises timing and operational questions for law enforcement, public health bodies, and regulated entities that rely on rapid scheduling of new psychoactive or controlled substances.
At a Glance
What It Does
The Bill substitutes a new subsection into section 2 of the Misuse of Drugs Act 1971 so the Secretary of State may amend Schedule 2 by statutory instrument only if a draft SI has been laid before and approved by each House of Parliament. It also requires the Secretary to consult with, or act on the recommendation of, the Advisory Council on the Misuse of Drugs before laying the draft.
Who It Affects
Directly affected actors include the Home Office/Secretary of State, the Advisory Council on the Misuse of Drugs (ACMD), Parliament (both Houses) when considering affirmative instruments, police and public-health responders who rely on scheduling decisions, and researchers, manufacturers, or importers of substances subject to Schedule 2 controls.
Why It Matters
The Bill replaces a largely executive method for specifying controlled substances with an affirmative parliamentary process, increasing transparency and political accountability. That change can slow the timetable for placing new substances under control and creates new procedural steps that agencies and the regulated sector will need to budget for and manage.
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What This Bill Actually Does
Under current law, the Secretary of State has statutory powers to specify which substances appear in Schedule 2 of the Misuse of Drugs Act 1971. This Bill rewrites that mechanism: rather than relying on the existing form of order-making, it requires the Secretary of State to use a statutory instrument (an SI) that must be laid before Parliament and explicitly approved by resolution of both the House of Commons and the House of Lords.
The Bill also ties the power to a mandatory prior interaction with the Advisory Council on the Misuse of Drugs (ACMD) — the Secretary may lay a draft SI only after consulting the ACMD or acting on its recommendation.
Two consequential drafting changes follow. The Bill replaces language in the temporary class drug order provisions so that those measures are expressed as 'regulations' rather than 'an Order in Council', aligning their terminology with the new SI route.
It also amends the general statutory regime for regulations so that provisions governing typical SIs are expressly carved out for this specific Schedule 2 power, which changes how the instrument is treated compared with other delegated powers in the Act.The Bill includes transitional savings: it does not unwind any Orders in Council already laid before the Bill comes into force, and it preserves amendments to Schedule 2 previously made by Order in Council. Those savings mean the Bill alters future procedure without reopening earlier listings.
In practice, the Bill makes parliamentary approval a required final step in the scheduling process, formalises the ACMD’s advisory role as a precondition to laying the draft, and creates a new point at which political and parliamentary considerations can influence technical public-health or enforcement judgments.
The Five Things You Need to Know
The Bill replaces section 2(2) of the Misuse of Drugs Act 1971 so the Secretary of State must amend Schedule 2 by statutory instrument rather than by the previous order-making route.
Any statutory instrument under the new section 2(2) may not be made unless a draft is laid before Parliament and approved by a resolution of each House (affirmative procedure).
The Secretary of State may lay a draft SI under the new power only after consulting with, or acting on the recommendation of, the Advisory Council on the Misuse of Drugs (ACMD).
The Bill changes the wording in the temporary class drug order provision (section 2A(6)(b)) from 'an Order in Council' to 'regulations', aligning temporary orders with the new regulatory route.
Section 31 (general provisions as to regulations) is amended so that the general rules governing regulations do not apply to the new section 2(2), and the Bill saves pre-existing Orders in Council from being affected.
Section-by-Section Breakdown
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Substitute section 2(2): amend Schedule 2 by statutory instrument
This clause replaces the current wording of section 2(2) so the Secretary of State’s power to amend Schedule 2 is exercised by regulations made as a statutory instrument. The practical effect is structural: the instrument form is now the default mechanism for specifying controlled substances in Schedule 2, which opens the process to parliamentary procedures that apply to SIs rather than the previous route. For officials, the drafting and pre-lay clearance process will need to follow SI practice from the outset.
Affirmative procedure and ACMD consultation requirement
The Bill inserts an affirmative-resolution requirement: a draft SI cannot be made unless the draft has been laid and approved by resolution of both Houses. It also requires the Secretary of State to consult with, or act on the recommendation of, the Advisory Council on the Misuse of Drugs before laying the draft. That combination formalises ACMD input as a precondition and makes political sign-off by Parliament mandatory, turning what has been an executive technical decision into a matter that will attract explicit parliamentary scrutiny and potential political debate.
Terminology change for temporary class drug measures
This provision replaces the phrase 'an Order in Council' with 'regulations' in the temporary class drug order section (2A(6)(b)). The change is mainly terminological but important: it ensures temporary class powers are expressed in the same legislative vehicle as permanent Schedule 2 changes, which should simplify legal drafting and clarify that temporary class listings are treated as regulatory instruments.
Carve-out from section 31 general regulation provisions
The Bill adjusts section 31 so that the general statutory provisions that govern the form, procedure, and parliamentary treatment of regulations made under the Act do not apply to the new section 2(2) power. That carve-out indicates the government intends the new SI route for Schedule 2 amendments to be treated as an exceptional delegated power subject to the affirmative-house approval set out earlier, rather than the usual regulatory framework—an important drafting choice that can affect parliamentary control and judicial interpretation.
Transitional savings for existing Orders in Council and laid drafts
The Bill expressly preserves Orders in Council that amended Schedule 2 before the Act comes into force and does not apply its new procedure to any draft Order that was already laid before commencement. That means existing listings and any imminent orders already before Parliament remain valid; the Bill only changes the procedure for future amendments.
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Explore Justice in Codify Search →Who Benefits and Who Bears the Cost
Every bill creates winners and losers. Here's who stands to gain and who bears the cost.
Who Benefits
- Both Houses of Parliament — gain explicit control and visibility over Schedule 2 listings through a required affirmative vote, enabling parliamentary scrutiny of technical drug-classification decisions.
- Advisory Council on the Misuse of Drugs (ACMD) — benefits from a formalised gatekeeper role because the Secretary of State may only lay a draft after consultation with, or on the ACMD’s recommendation, increasing the Council’s practical influence.
- Public‑health and harm‑reduction advocates — gain transparency and an extra forum (parliamentary debate) to challenge or support scheduling decisions before they take effect.
- Legal and compliance advisers — receive clearer process rules for how listings will be made in future, reducing legal ambiguity about the instrument form that creates Schedule 2 obligations.
Who Bears the Cost
- Home Office/Secretary of State — faces slower, more politicised decision-making and must secure parliamentary time and votes to enact listings that were previously more administratively straightforward.
- Police and public‑health emergency responders — may experience delays in placing newly identified harmful substances under control, potentially hampering rapid operational responses to emerging drugs.
- Pharmaceutical researchers and legitimate manufacturers/importers — face greater regulatory uncertainty and potential delay in clarifying legal status for novel compounds, complicating compliance and commercialization timelines.
- Parliamentary time and committees — bear additional workload to scrutinise and vote on technically detailed SIs, which could crowd out other business or impose resource costs on select committees.
Key Issues
The Core Tension
The central dilemma is whether to prioritise faster, technocratic responses to emergent drug harms or to prioritise democratic accountability and parliamentary oversight; the Bill opts for the latter, but in doing so it potentially sacrifices the agility that enforcement and public‑health authorities rely on to react quickly to new substances.
The Bill trades administrative speed for democratic oversight. Requiring affirmative approval by both Houses makes the scheduling decision transparent and politically accountable, but the extra procedural steps will lengthen the time between a scientific or enforcement recommendation and the legal imposition of controls.
That lag is a concrete operational risk where new psychoactive substances spread rapidly and where temporary measures have historically been used to buy time.
The phrase 'consultation with, or on the recommendation of, the Advisory Council' leaves room for ambiguity about how much weight the ACMD must be given and whether the Secretary can proceed against the Council’s advice after mere consultation. The carve-out from section 31’s general regulation rules further complicates matters: by treating the new power as exceptional, the Bill alters how other SI procedures and safeguards apply, which could produce drafting disputes and legal challenges about the correct parliamentary and judicial routes for challenge.
Finally, the transitional savings create a two‑track historical record where some entries in Schedule 2 were made under the prior regime and others under the new SI/affirmative route; that inconsistency may matter in litigation, retrospective reviews, or when agencies trace the legal ancestry of particular listings. Practically, stakeholders will need guidance on timing, how ACMD advice will be published, and how temporary public-health urgencies will be managed under an affirmative parliamentary timetable.
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