Psychoactive Substances

Debate between Diana Johnson and Peter Bone

Monday 11th November 2013 Commons Chamber

[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.