Evidence note C report V4.5

Justice by Design report analysis; not an independent source. Originals preserved separately.

C.1The comparison concerns legal effect, not merely different verbs. The 13 September submission §§11–13(a) distinguishes existing premises controls from a proposed requirement directed at the person taking the medicine; §§17/30 again describe introduction. Regulation 4 inserts that rule. The Note calls it an additional control. The Memorandum discloses the ban but describes maintenance or continuation. C.11 explains why its effect on lawful prescribed use required a distinct account. Evidence note C6

C.2What Parliament was told: the memorandum's section 3.1 identified novelty in defining a product by form, purpose and composition. It did not identify the additional personal offence as a matter of special interest. Section 5.1 stated that no human-rights statement was required because the instrument followed negative resolution and did not amend primary legislation. Section 10.3 stated that no full public consultation had been undertaken. Section 10.2 separately described informal consultation with manufacturers and stakeholders. The issue is the explanation and scrutiny of the patient's criminal consequence. Explanatory memorandum §§3.1/5.1/10.2–10.3.

C.3The smoking passage connects misuse and enforcement concerns with continuation of prohibition, including medicinal products. The statements describe the lawful medicines framework and the specialist restriction for unlicensed specials. They do not explain 16A(3) as a new personal offence backed by 18(1) and its penalty. Both promise close monitoring and review when ACMD supplies final advice.

C.4The scrutiny committee's own account: the House of Lords Secondary Legislation Scrutiny Committee (Sub-Committee B), 2nd Report of Session 2017–19, HL Paper 205, published 25 October 2018, information paragraph 7, printed p4/PDF p6, described the product definition and prescribing restrictions. It stated that ‘on medical advice, such products may not be administered by smoking’. It mentioned no new personal criminal offence or section 18 penalty. Its printed p6/PDF p8 listed SI 2018/1055 among instruments not drawn to the House's special attention. Committee report pp4/6.

C.5The committee’s published account omitted the direct patient offence and its penalty. That omission reinforces the need for a corrected parliamentary explanation. C.11 sets out the comparison between what Government knew, the law it made and the account it gave Parliament.

C.6The circular states unchanged penalties for unauthorised supply, possession and cultivation on p1; pp2/4 repeat continued smoking prohibition. It does not identify the prescribed patient's section 18 offence in those explanations.

C.7The clinician letter, p5, states prohibition and the health-risk information to give patients. It neither uses the word ‘continues’ nor names the personal criminal offence. DHSC's 2026 answer, p1, expressly expects communication that smoking is illegal and a criminal offence. Government must explain how it secured delivery of the complete criminal warning now expected by DHSC.

C.8A.2 names CPS, courts, HMPPS and Scottish justice counterparts among affected agencies. Paragraphs 8–12 state that the provisional IA cannot robustly quantify impacts, using illustrative conditions/scenarios. Paragraph 75 anticipates police/Border Force costs distinguishing genuine CBPMs from illicit cannabis. Paragraph 76 presents continued smoking prohibition as easing that distinction and mitigating costs. Paragraph 77 says costs may remain substantial and gives an illustrative identification-time calculation, not a patient prosecution estimate.

C.9Finding: the impact assessment's smoking passage addresses enforcement classification and costs. That passage does not assess the new personal offence for the prescribed patient or the clinical case recognised in paragraph 12 of the September briefing. Government should produce the patient assessment supporting the rule.

C.10The internal record promised further parliamentary advice. Government must produce it alongside the drafting and clearance record, identify the earlier personal prohibition said to be continued, and correct the laying account of the additional burden on prescribed patients. Evidence note C6; Evidence note F3.

C.11Government materially misled Parliament. The ban was disclosed in the law, Memorandum and laying statement. The misleading feature is the presentation of the prescribed patient’s burden as legal continuity. Before reform, ordinary cannabis access was constrained principally through possession, supply and licensing controls, with separate premises liability. Exceptional licences already allowed limited medicinal access. Their existence does not answer the new criminal burden imposed within the general prescribing pathway. The reform established the CBPM category and general prescribing routes without individual Home Office licences, then expressly prohibited the patient’s own smoking even when supply and possession were lawful. Existing section 18 supplied the offence machinery. The internal papers identify why a new personal rule was needed. Evidence note A2 Evidence note B2 Evidence note B3 Evidence note C1 Evidence note C2

C.11aGovernment cannot equate continuity of its policy against smoking with continuity of the patient’s legal position. Disclosing the ban did not explain the move from controls on access and premises to direct personal criminal liability within lawful treatment. The Memorandum called ordering and supply controls additional while calling the smoking restriction maintained. The Note’s additional-controls wording does not repair that missing explanation in the Memorandum.

C.11bThe new patient liability was material to Parliament’s scrutiny. Criminal punishment within lawful treatment, including the cases where officials recognised possible benefit, and the available professional alternative were substantial choices. Presenting their effect as continuity obscured that choice. The documentary comparison supports the finding that Government materially misled Parliament about the patient’s legal position. Government must answer that comparison.

C.12Section 31(2) required the negative procedure: Parliament could annul the regulations, without an advance approval vote. Government cannot treat non-annulment as informed parliamentary endorsement of a patient burden it failed to explain.

C.13The documentary finding in C.11 requires correction. The current Ministerial Code, paragraph 1.6(c), requires accurate and truthful information and prompt correction of inadvertent error. Government must correct its explanation or answer the legal and documentary comparison. A debate about deliberate deception cannot substitute for that answer.

C.14Memorandum §§15.2–15.3 name Nick Hurd and the two senior officials on the September submissions as people who ‘can confirm’ the required standard. Hurd signed the instrument and his role was an addressee of the advice. The published assurance identifies who is accountable for explaining the Memorandum’s preparation and approval. Government should disclose the preparation and approval records and the further parliamentary advice promised in §34. Evidence note C5 Evidence note F4 Memorandum 15.2–15.3, p7