Psychoactive Substances

Jim Shannon Excerpts

Monday 11th November 2013 Commons Chamber

[The Minister for Crime Prevention (Norman Baker)]

I beg to move,

That this House considers that the draft Regulation and draft Directive on the regulation of new psychoactive substances (European Union Documents No. 13857/13 and Addenda 1 and 2 and 13865/13 and Addenda 1 and 2) do not comply with the principle of subsidiarity, for the reasons set out in the annex to Chapter Eight of the Nineteenth Report of the European Scrutiny Committee (HC 83-xviii); and, in accordance with Article 6 of Protocol (No. 2) annexed to the EU Treaties on the application of the principles of subsidiarity and proportionality, instructs the Clerk of the House to forward this reasoned opinion to the Presidents of the European Institutions.

I am pleased that this debate has been called to discuss whether the EU Commission’s proposals for regulating new psychoactive substances, commonly called legal highs, comply with the principle of subsidiarity. I am aware that the other place held its own debate on this issue earlier this evening, following evidence that I provided to one of its European Sub-Committees on 16 October. I also note the European Scrutiny Committee’s report on these proposals, and its questions for the Government. I will be writing to the Committee with detailed answers to those questions shortly.

I am aware of a dangerous perception held by some that since many new psychoactive substances are legal, they must be safe to consume. This is absolutely not the case, and while research on these substances is limited, the number of people who have ingested them and come to harm demonstrates that doing so is a risky, potentially life-threatening activity. There is also no guarantee that what is being sold is legal—evidence has shown that around 19% of products sold as legal highs on the internet actually contain controlled drugs.

The proposals involve a draft regulation and a draft directive, which together seek to enhance the EU’s ability to respond to the threat posed by these substances. We believe the regulation would require all member states to adopt the same level of control for a substance that is causing concern at the EU level, within a tiered framework of low, moderate and severe risk. While a framework for EU-level risk assessment and control of new psychoactive substances currently exists, member states can adopt stronger or weaker controls if they believe this to be appropriate. The directive would expand the definition of what the EU considers an illicit drug to include new psychoactive substances classed as severe risk under the new regulation.

In recent years, the growing role of these substances in the recreational drug market has presented policymakers and legislators across the world with significant challenges. They are generally synthetic drugs, designed to mimic the effects of drugs listed under the UN conventions and intended to fall outside the law. They are unlikely to have ever been tested on humans, and thus their short and long-term effects are largely unknown. However, the hospitalisations and deaths that have occurred due to the ingestion of some of these substances makes this a problem that Governments across the world cannot ignore, and we certainly do not do so.

The UK has played a leading role in tackling this threat. Our temporary drug control orders allow substances causing concern to be banned in a matter of weeks. Our forensic early warning system provides the latest intelligence on what substances are available in the UK, and our use of generic definitions under the Misuse of Drugs Act 1971 allows us to ban entire families of substances. These and other measures have enabled us to ban the majority of such substances seen in the EU and since 2010 we have banned in excess of 200.

The UK has also provided international leadership in this field. We have sponsored an international early warning system and a platform for sharing data on this threat via the United Nations Office on Drugs and Crime, as well as sponsoring two resolutions at the UN on the identification and reporting of new drugs.

Any EU-level action is required to comply with the principle of subsidiarity, meaning that decisions should be taken as close to EU citizens as possible. Article 5 of the treaty of the European Union states that, in areas where it does not have exclusive competence, the EU should only act if two conditions are met: first, where the objectives cannot be achieved by member states, and secondly, where EU-level action can add value by meeting the objectives more effectively. This Government does not believe, and I do not believe, that the EU proposals meet these conditions. In our view, the measures do not comply with the principle of subsidiarity.

To explain why, it is necessary to consider the legal base for the draft regulation. The Commission cites an internal market legal base, on the premise that there is a substantial licit—legal—trade in new psychoactive substances which requires a harmonised regulatory approach. The Government does not accept this premise, as our experience has overwhelmingly been that these substances are sold for recreational purposes and are closely tied to the illegal drugs trade, with only a small handful having legitimate use in industry. We believe, therefore, that the regulation should cite a justice and home affairs legal base, reflecting the illicit nature of the trade.

I know that the issue of Europe can excite Members across the House, but I stress that the position I am setting out is influenced not by whether one is crudely pro-EU or anti-EU, but by an objective assessment of EU law as it stands.

[Jim Shannon (Strangford) (DUP)]

What concerns Members across the House, apart from the question of Europe, are the deaths of young people, which have risen from 29 to 52 in England and Wales over the past year. What the Minister is taking about is exactly what we want to see: stronger action from Europe to support what the Government are doing.

[Norman Baker]

We certainly want stronger action from Europe on, for example, co-operation between member states on information, but my view is that this serious problem is best dealt with at member state level, rather than by waiting for the EU. The system we have in place at the moment allows us to take action more quickly than the proposals the EU is putting forward would allow us to do, so the hon. Gentleman’s point is met by the present system in the UK—I am not saying that it is perfect, because we want to improve it—rather than the EU system, which is defective in comparison.