Psychoactive Substances

Diana Johnson Excerpts

Monday 11th November 2013 Commons Chamber

[Diana Johnson (Kingston upon Hull North) (Lab)]

I welcome the Minister to his post. The Opposition were particularly pleased about his appointment to the Home Office. I thank him for his explanation of the Government’s position on this proposal.

The European Commission’s proposals are technical but important. We should be thankful for the work undertaken by members of the European Scrutiny Committee to assist our deliberations. As the Minister explained, the measures are an attempt to take an EU-wide approach to the problem of legal highs. No one in this House should underestimate the scale of the problem. The UN estimates that the UK has the largest legal highs market in the world. It is estimated that 670,000 young Britons aged 16 to 24 have taken legal highs.

Many of the figures on the scale of the problem already come from the EU through the European Monitoring Centre for Drugs and Drug Addiction. That agency found 73 new synthetic drugs in 2012, which is up from 49 in 2011. The rate of proliferation is increasing. At times this year, about two new substances have been arriving in the UK market every week. Hundreds have been catalogued in the marketplace. There are more than 500 internet shops that supply the substances to the UK market. There are also an unknown but increasing number of head shops on the high street.

It is therefore clear that there is some truth in the Commission’s assessment that member states have not been able effectively to respond to the threat posed by legal highs and that collective action is needed. The Commission is perhaps being unfair on several other member states that have taken action. Countries such as Ireland have been more proactive in responding to the rapid proliferation of the new drugs. The UK Government have been singularly ineffective in tackling this problem. That is why the UK market is now the largest in Europe.

[Norman Baker]

I just want to put the record straight. The hon. Lady mentioned that there were 49 new drugs in 2011. Only 17 of those crossed the channel to the UK and 14 of them were already controlled by the UK Government. Of the 73 in 2012, only 18 have been seen in the UK and eight had already been controlled.

[Diana Johnson]

I will come on to the discrepancies between the Home Office figures and the figures of other bodies. The Home Office does not have access to the figures on all the new legal highs that are available on the internet and in head shops.

I want to return to the EU proposal to introduce a cross-European response. The Commission proposes to strengthen the existing monitoring centre, the EMCDDA, to enable it to undertake assessments of new substances and determine how dangerous they are. That determination will inform a classification that is decided on by the Commission with some input from member states.

The Commission wants to address two problems through the proposals. The first and, going by the Commission’s documents, possibly the foremost, is the impediment to the legitimate trade in new psychoactive substances caused by restrictions imposed by individual member states. Secondly, the Commission recognises the public health need. From the drafting of the proposals, it could be construed that the Commission is giving that secondary status.

I agree with the evidence of the Minister for Immigration to the European Scrutiny Committee in which he said that it was not entirely clear what “mischief” the Commission was attempting to tackle. In the regulations, free trade appears to be afforded equal status to prevention of harm. The Opposition share the Government’s surprise that the regulation is justified under the legal auspices of protecting free trade, rather than article 5 concerns relating to justice and home affairs. That focus is surprising given that even the Commission recognises that only a small, unquantifiable percentage of new psychoactive substances have a legitimate use.

The European Scrutiny Committee states that the

“trade in new psychoactive substances for legitimate purposes is difficult to quantify”.

I agree with its conclusion:

“Given that uncertainty, as well as the known risks associated with their recreational use, we do not consider that new psychoactive substances should necessarily be treated in the same way as other tradable commodities… Divergent national rules cited by the Commission as an obstacle to legitimate trade, in our view, often reflect differing cultural and societal attitudes towards the regulation of drugs”.

Although the Opposition have some reservations about the Commission’s motivations, we are willing to engage in addressing the health harms posed by legal highs. We also give the Commission some credit for recognising that harm.

Reading the Commission’s proposal, however, it is not clear how it would determine harm. Article 7 lays out the procedure for risk assessment connected with the substance, and article 10 states the conditions for the determination of levels of health, social and safety risks, following the risk assessment. Article 9 deals with urgent public health requirements, while articles 11, 12 and 13 lay out three levels of control, depending on the level of risk identified. It is important to note for article 11 and substances deemed a low risk that that would mean no restrictions at all.

That does not give an entirely satisfactory account of how the EMCDDA would determine the level of harm associated with each drug. The articles I have mentioned lay out a process, but it is not entirely clear that the EMCDDA will have the evidence available to make classifications that correspond to the level of harm outlined. EMCDDA assessments would not extend to clinical trials, and it is therefore not clear how it would be in a position to rule out addictiveness, long-term psychological harm, or the effect of combining the drugs with alcohol.

It is important to remember that most deaths associated with legal highs come about accidentally, and I am not convinced that the Commission’s proposals adequately explain how the EMCDDA would account for such dangers. Perhaps the Minister will set out the Government’s position on that point, and say what representations the UK Government have made to the Commission. It is also not clear how such proposals will impact on the UK’s capacity to determine our own classification system—a point raised by my hon. Friend the Member for Barrow and Furness (John Woodcock).

[Mr Stephen O'Brien (Eddisbury) (Con)]

Is the answer to the hon. Lady’s question that we are seeking to pass this measure today to demonstrate our expertise in and judgment on these various substances, those that are emerging and those that are well known such as khat—I have seen the devastation that causes right across north, west and east Africa—which is finding its way to these shores? Precisely for those reasons we want to rely on our expertise and judgment and get a system in place in time, rather than relying on the lowest common denominator from Europe.

[Diana Johnson]

If the right hon. Gentleman had been listening, he would know I was making the case for why I am questioning whether the procedure in this proposal would actually work. I want the Minister to respond to the Government’s advice on the point about the effect that such a proposal would have on any determination this country could make about its own classification.

[Dr Julian Huppert (Cambridge) (LD)]

The hon. Lady rightly raises the question of our making our own determinations, which I hope she will agree should be evidence based. Has she seen the advice from the Advisory Council on the Misuse of Drugs that khat should not be controlled under the Misuse of Drugs Act 1971, and will the official Opposition follow that evidence-based line when it comes to a vote in the Statutory Instrument Committee?

[Diana Johnson]

The hon. Gentleman should perhaps look to his own coalition Government, who decided not to follow the advice of the ACMD. As a Member of one of the two ruling coalition parties, perhaps he should question his own Ministers on that point.

[Dr Huppert]

rose—

[Diana Johnson]

I am going to move on because I do not want to get sidetracked into a debate on khat as that is not the purpose of this debate. Perhaps the hon. Gentleman could ask his Ministers about their position as they are part of the Government who are not using—[Interruption.] Well, I have made my position clear. He should look to his own Ministers. The Liberal Democrats cannot have it all ways—I know they try, but perhaps on this they should look to their Liberal Democrat Minister in the Home Office.

It would be helpful if the Minister set out clearly his position on classification. EU co-operation on drugs is not new, but previously the agreement was that drugs, as recognised by the UN agreement on narcotics, needed to be controlled and the trafficking of drugs tackled. The proposals we are discussing go far further than that. Drugs that would be deemed low risk will not be restricted; those deemed a moderate risk will be prohibited from the consumer market; and the most dangerous drugs will be prohibited altogether, with a possible exception for medical use. I should make it clear that the Opposition do not want to cede powers on drug classification to the EU, and I press the Minister on the Government’s legal advice on how the adoption of the directive could affect the UK Government’s position. The Home Office explanatory memorandum states:

“we do not consider that the measure complies with the principle of proportionality. In particular, the effect of Article 4 of the draft Regulation fetters the UK from adopting more stringent measures to control NPS. In our view, it is vital for the UK, guided as necessary by EU expertise in NPS but not bound by it, to have the final say when deciding whether to exceed any minimum standards mandated by the EU.”

Although the Opposition concur generally with that, it would be helpful if the Minister explained exactly what the Government mean by “fetters”. Do the Government believe that article 4 would prevent them from placing strong prohibitions on a substance?

When we turn to articles 3 and 4, we see that the Commission has placed a strong emphasis on free trade, as I have said. Article 3, on free movement, states:

“New psychoactive substances and mixtures shall move freely in the Union for commercial and industrial use”.

Article 4, on the prevention of barriers to free movement, states that, in so far as

“the Union has not adopted measures to subject a new psychoactive substance to market restriction under this Regulation, Member States may adopt…regulations”.

Is it the Government’s view that member states could impose restrictions only before the EU has classified a drug? Would the Commission classifying a drug as low risk, and therefore not restricting sale in any way, count as having adopted a measure, therefore precluding further action from member states? For its part, the Commission thinks not—it argues that in its impact assessment.

[Mr Peter Bone (Wellingborough) (Con)]

The hon. Lady makes a detailed and powerful argument. I am gathering that she supports generally what the Government are doing. Many Government Members would like to know that the Opposition will not vote against the motion tonight.

[Diana Johnson]

I have a few more pages of notes, and then all will be revealed. The hon. Gentleman will have picked up that the Opposition have a number of questions on whether the proposal would be helpful in dealing with the problem of legal highs.

The impact assessment states:

“Member States would be able to apply national measures before the introduction of any EU-level measure in…respect of the provisions of Directive 98/34/EC, and to go further than what is foreseen by EU measures in full respect of the provisions of Article 114”.

Will the Minister respond to that explanation on that point?

One point made strongly by the European Scrutiny Committee in the other place was that national states are more competent than the EU to make decisions because specific factors might influence the dangers of each drug in different national contexts. The Opposition agree with that assessment. One particular issue is what substances are mixed with—one psychoactive substance could form part of a compound street drug that is far more dangerous. That is a problem for the UK, which, as I have said, has Europe’s largest legal highs market. That draws attention to a failing of the Government’s response to legal highs—the failure to address the emergence of regional drugs, meaning drugs going under a generic street name, but often containing a variety of different substances that become popular in a certain region. Sadly, we have seen repeatedly over a number of years that batches of such drugs can contain a dangerous substance, often with lethal consequences.

Because the Opposition believe that member states are best placed to determine the level of harm posed by a new psychoactive substance, we do not believe that the proposal from the EU Commission is either necessary or proportionate. Therefore, we agree with the reasoned opinion put by the European Scrutiny Committee and supported by the Government. However, even if the House and the other place were to reject the Commission’s proposals—the other place has, I believe, already rejected the proposals—it should not be taken as an excuse by this Eurosceptic Government to opt out of EU co-operation on investigating and assessing new psychoactive substances. The Opposition see a clear need for EU-wide co-operation on a laboratory to research new substances without giving it the power to classify substances.

Currently, hundreds of new substances arrive on the UK market. The Government’s temporary banning orders have been used on only three occasions. I therefore dispute what the Minister has said about taking swift action. There are two reasons for this: a failure by Ministers to refer substances to the Advisory Council on the Misuse of Drugs and the capabilities of the advisory council. It has said that it can assess only two or three substances a year. It is clear that it will never be able to keep up with the number of new drugs on the market, so the UK Drug Policy Commission and others called for a joint EU-wide laboratory to provide advice and information to relevant authorities. We support that. The European Monitoring Centre for Drugs and Drug Addiction has long produced lists of new substances that have always been far ahead of the Home Office’s forensic early warning system. I have repeatedly asked Ministers why substances that are identified by the EMCDDA as being on sale in the UK are not automatically added to the forensic early warning system. This goes back to the Minister’s intervention on the numbers. The EMCDDA numbers are far higher than the Home Office numbers, and that needs to be looked at. Perhaps the Minister will finally be able to explain why there is such a disparity between the two lists.

In conclusion, the Opposition are in agreement with both the European Scrutiny Committee and the Government that the EU Commission proposal is neither necessary nor desirable. We would like the Government to be more precise about the consequences of adopting the directive on the UK’s current system of drug regulation. We do not want the Government to use tonight’s debate as an excuse to avoid greater EU co-operation to assess the dangers posed by legal highs, particularly to our young people.

--- Later in debate ---

[Dr Julian Huppert (Cambridge) (LD)]

I shall try to be relatively brief and to resist the temptation to discuss the speech of the hon. Member for Bassetlaw (John Mann). I think that it was the first speech that I have heard in which someone has objected to the concept of talking to other people to identify good practice, which is surely something that most of us would want to do.

It is clear that a huge problem is posed by new psychoactive substances. As that has been reiterated so many times, I shall not go into it in detail now, but I will say that the rise in the number of such substances is partly our fault, because our prohibition-led policy has made it possible to be sentenced to years in jail for possessing one tablet of known harm, but to receive no penalty for possessing something else of unknown harm, which could be far more serious.

We know that some of the new substances are more harmful than substances that we have already controlled. Our use of the term “legal highs” suggests to the public that it is all right to take such substances, because it implies that they are safer than others. If ecstasy is a class A drug and another substance is legal, that suggests that we have made an assessment of the risk, which is deeply misleading. It flies in the face of any evidence-based policy, but it also flies in the face of what we all want to do, which is to reduce the harms from drug use. All substances of this kind, whether legal or illegal, have harms, and we must try to reduce those harms.

I agree with the Minister that the European proposal is not the right one to adopt, but what is the correct way in which to deal with all these substances? On the general subject, I follow the Portuguese line. I think that decriminalisation has worked very well there. Only those on the far right in politics opposed it originally, and now it is supported by people throughout the political spectrum and by the police themselves. The Home Affairs Committee conducted a detailed study of all the issues, and that was our very clear finding.

What is the solution? What is not the solution is simply to ban everything that is psychoactive. I suspect that that is what the hon. Member for Bassetlaw is proposing, and it is certainly what the hon. Member for Kingston upon Hull North (Diana Johnson) proposed in a new clause to the Anti-social Behaviour, Crime and Policing Bill, which would have included making the sale of caffeine, including coffee, illegal. I do not think that that was the intention of the new clause, but it illustrates the problems that arise when we try to ban things. Coffee is a psychoactive substance. I will not ask how many Members who are present have consumed some of that psychoactive substance today, but quite a number will have done so. That illustrates the danger of being extremist and banning everything.

What we should do is adopt an alternative to the European proposal, and emulate, for example, what has been done in New Zealand. When the New Zealand Government asked the New Zealand Law Commission to look at their drug laws—the Select Committee report goes into this in much more detail—the commission proposed the establishment of an independent regulatory authority to test substances, so that manufacturers and importers would have to demonstrate their safety. I am pleased to see that other members of the Select Committee are present. We proposed that urgent action should be taken, based on existing trading standards and consumer protection legislation, to deal with the sale of untested substances. The onus should be on the person selling a substance to check that it is safe. That is the right way to tackle the huge number of new psychoactive substances.

[Diana Johnson]

Perhaps I could correct the record. The new clause to which the hon. Gentleman referred would have dealt with exactly the problem that he has raised by building on the work that had already been done in relation to young people who were sniffing glue. I believe that it was a Conservative Government who had previously legislated to put the onus on shopkeepers who sold substances that could be used for that purpose, and the new clause was intended to put the onus on the seller in the same way. I take exception to the way in which he has described its aims.

[Dr Huppert]

New clause 2 stated:

“It is an offence for a person to supply, or offer to supply, a psychoactive substance, including but not restricted to…a powder…a pill…a liquid; or…a herbal substance with the appearance of cannabis which he knows, or has reasonable cause to believe, to be so acting, that the substance is likely to be consumed by a person for the purpose of causing intoxication.”

That would make it illegal to sell coffee. It is perfectly possible to be intoxicated by caffeine, which is an addictive substance. The hon. Lady is right to say that the new clause deals only with the supply of substances, but, although some of us may have concerns about Starbucks paying taxes or otherwise, I think that making the company illegal would be going too far.

Roughly one in five of the notified new psychoactive substances are used for legitimate purposes in industry or research, or as active substances in medicines. We must be extremely careful about how we proceed, because a global ban would give rise to all sorts of problems.

We have touched on the Home Secretary’s decision to ban khat. She has tabled a statutory instrument to do so. That was her decision; it was not a jointly signed off one, and I was very disappointed by it.

I was also very disappointed and surprised that the shadow Minister had no idea what her own policy was. [Interruption.] If she would like to say what it is, I will be happy to take an intervention. Apparently, she does not wish to do so.

The Government have twice asked the Advisory Council on the Misuse of Drugs what to do about khat. This is a classic example of a legal high that exists and would be covered by this provision, and where we have to work out what to do. The ACMD said that

“the evidence of harms associated with the use of khat is insufficient to justify control and it would be inappropriate and disproportionate to classify khat under the Misuse of Drugs Act 1971.”

It also said that

“the evidence shows that khat has no direct causal links to adverse medical effects”.

It went on to say there is no robust evidence of a causal link between khat consumption and any of the social harms indicated, and no evidence of it being connected with organised criminal behaviour.