Explanatory note

These Regulations amend the Misuse of Drugs Regulations (Northern Ireland) 2002 (S.R. 2002 No. 1) (“the 2002 Regulations”) to place nitrous oxide, and preparations or products containing nitrous oxide (hereafter referred to as “nitrous oxide”), in Schedule 5 to the 2002 Regulations and to make provision for lawful access to the substance for legitimate purposes, including medical use.

The Schedule to the 2002 Regulations in which a controlled drug is placed affects the extent to which the drug can be lawfully imported, exported, produced, supplied or possessed and dictates the record keeping, labelling and destruction requirements in relation to that drug.

Drugs in Schedule 5 to the 2002 Regulations are, generally, wholly excepted from the prohibitions on import, export and possession of controlled drugs (under sections 3 and 5 of the Misuse of Drugs Act 1971 (c. 38)) by regulation 4 of the 2002 Regulations. Regulation 7 of the 2002 Regulations similarly, generally, permits any person to administer to another person any Schedule 5 controlled drug. However, these regulations (by regulation 2(3) and (5)) exclude nitrous oxide from those general exemptions in the 2002 Regulations.

Instead, a new regulation 4C to the 2002 Regulation (inserted by regulation 2(4)), makes it lawful for persons to import, export, produce, supply (including by way of administration), offer to supply and possess nitrous oxide in certain circumstances. Specifically, persons may undertake those activities except where, dependent on the offence, they intend, know or are reckless as to whether the substance is likely to be wrongfully inhaled by a person. “Wrongful inhalation” means any inhalation which is not for a medical or dental purpose (for example, recreational inhalation for psychoactive effect) or is not of nitrous oxide which has been released into the atmosphere (for example, directly from a cannister or a balloon). Medical purposes are (by the definition inserted by regulation 2(2)) defined in regulation 2 of the 2002 Regulations as the purposes of preventative medicine, medical diagnosis or the provision of medical care and treatment.

Additionally, regulation 10 of the 2002 Regulations is amended (by regulation 2(6)), to make provision for possession, supply and production of nitrous oxide by certain scientific education and research laboratories (regulation 8(2)(f) and new regulation 10(1)(f) of the 2002 Regulations). It also makes provision for group authorities and/or written authorities to be issued by the Department to authorise other activities relating to nitrous oxide (regulation 10(3) and (4) of the 2002 Regulations).

Schedule 5 to the 2002 Regulations is amended (by regulation 2(7)) to include nitrous oxide, and the heading is amended to clarify that the substance is not wholly excepted from the offences of import, export and possession. Placement in Schedule 5 makes nitrous oxide subject to the requirements of regulations 24 and 26 of the 2002 Regulations which relate to the preservation of records relating to, and the furnishing of information with respect to, drugs in Schedules 3 and 5.