Lord Hannay of Chiswick
Main Page: Lord Hannay of Chiswick (Crossbench - Life peer)New Psychoactive Substances: EUC Report
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Lord Hannay of Chiswick
That this House takes note of the Report of the European Union Committee on the Commission proposal for a Regulation of the European Parliament and of the Council on new psychoactive substances (COM(2013)619, Council Document 13857/13) and on the Commission proposal for a Directive of the European Parliament and of the Council amending Council Framework Decision 2004/757/JHA of 25 October 2004 laying down minimum provisions on the constituent elements of criminal acts and penalties in the field of illicit drug trafficking, as regards the definition of drug (COM(2013)618, Council Document 13865/13) (6th Report, HL Paper 73).
Lord Hannay of Chiswick (CB)
My Lords, in moving the Motion in my name, I invite the House to endorse the proposal of the European Union Select Committee that a reasoned opinion should be issued concerning the European Union Commission’s proposals to regulate new psychoactive substances.
Those proposals were considered in depth by the EU Sub-Committee on Home Affairs, Health and Education, which I have the honour to chair, during October this year. We took evidence from the Minister of State at the Home Office, Mr Norman Baker, on 16 October. We have concluded that the proposals do not comply with the principle of subsidiarity.
New psychoactive substances are natural or synthetic substances that act on the central nervous system and modifying mental functions in similar ways to illicit drugs such as cocaine and amphetamines. They are often referred to as “legal highs”. As many Members noted in the debate in this House on 17 October in the name of my noble friend Lady Meacher, when we debated wider issues of drugs policy, new psychoactive substances have the potential to pose serious risks to public health and safety. Despite often being marketed as legal alternatives to illegal substances, users can have no certainty as to the health risks that can arise from using them, nor the legal status of those substances.
Our report does not comment on the merits of policies to ban, regulate or permit the new psychoactive substances. We have not dealt with that wider issue. Debates about that are going on in many countries around the world and around Europe, and will continue to do so as the ingenuity of scientists leads to the production of new substances. In this debate, and in this Motion, we are concerned with who should have the power to ban those substances and why. On 20 September, the European Commission published proposals for a directive and a regulation with the stated aim of improving the functioning of the internal market regarding the legal use of new psychoactive substances. It argues that many new psychoactive substances that are used recreationally have, or could have, various uses in industry which are hindered by market restrictions. The Commission considers that member states alone cannot reduce the problems caused to the internal market, given their divergent responses to new psychoactive substances. It also argues that EU-level action is necessary to ensure that potentially harmful new psychoactive substances can be identified, assessed and, if necessary, withdrawn quickly from the market across all member states.
The committee shares the Commission’s concerns about the risks of harm posed by these substances to the health and safety of EU citizens. In our 2012 report, The EU Drugs Strategy, we concluded that the EU has an important role to play in strengthening and adding value to the actions of member states in tackling the negative effects of these substances. However, we concluded then, as we do now, that action to deal with them is best taken in the first instance by member states. We part company from the Commission when it proposes to take that responsibility for taking such decisions away from member states, and transfer it to the Commission itself. In our view, the two proposals include some provisions which are best left to member state action, and so are not consistent with the principle of subsidiarity.
The proliferation of new psychoactive substances is influenced by regional, national and international forces. These manifest themselves quite differently in different member states, depending on the speed at which the substances become available and the severity of their impact on public health. In any case, member states have different systems for dealing with harmful drugs in general, and for addressing new psychoactive substances. They require flexibility to respond rapidly to local situations. Therefore, member states are best placed to decide how to respond to the proliferation of these substances in the manner that best fits the circumstances in their jurisdictions.
This would not—and I underline this point—preclude EU-wide action being taken by the Council with respect to a particular substance or group of substances, if the Council felt that such general measures were needed across the European Union. We support those parts of the proposals that would strengthen the roles of the European Monitoring Centre for Drugs and Drug Addiction and of Europol in the process of analysing and dealing with the risks from new psychoactive substances.
I should add that we received evidence from the Government that leads us to conclude that the legal trade in psychoactive substances—which is the reason given by the Commission for basing these proposals on single market provisions—is not in fact large enough to justify the Commission’s view that its proposals are needed to protect the single market. We therefore concluded that, in addition to our concerns about subsidiarity, the measure was in any case disproportionate, although there is no formal reference to that point in the reasoned opinion, which is of course about subsidiarity alone. The House of Lords EU Committee therefore does not agree that these matters justify transferring member states’ decision-making power in respect of new psychoactive substances to the Commission. I beg to move.
Lord Ahmad of Wimbledon
I thank the noble Baroness for her intervention and, of course, for the excellent work she does in her chairmanship of the APPG. I do not for a moment suggest—nor do the Government take this position—that everything can be controlled through such measures. She pointed to the internet: internet purchasing of NPS is quite low. I understand it is at the rate of about 2%. That said, there has to be an acceptance that, of course, banning something does not mean that a substance or a derivative of one will not get through. After all, these are derivatives of what already exists in the market and, as all noble Lords acknowledge, this is unfortunately a dynamic market and you can never control what new substances are coming. It is only possible when something is identified. However, currently we take account of the different representations made by different agencies and we work with EU partners in sharing information and good practice. That is something that the Government subscribe to. However, as the noble Baroness herself acknowledged in her contributions, the UK is far ahead of others in identifying and dealing with some of these matters. Of course, we ultimately need to ensure that we try to stop as quickly as possible these drugs that are coming on to our markets and streets and appearing in people’s homes. There is no doubt that challenges remain and we need to address them as they arise.
Finally, as I already said in acknowledging some of the noble Baroness’s remarks, the Government retain our position that the European Union has a role to play in tackling new psychoactive substances, but we are not convinced that the current measures will add value to the work that the UK is already doing and leading in this area.
Lord Hannay of Chiswick
In winding up this debate, I should like to thank all those who participated, particularly the two members of my sub-committee, the noble Lord, Lord Sharkey, and the noble Viscount, Lord Bridgeman, for their contributions. It is always a source of pleasure to find that the two Front Benches are in agreement with a cross-party committee such as ours. Therefore, there is clearly very broad support for tabling this reasoned opinion.
I listened with great care to my noble friend Lady Meacher, who is of course a major expert on these matters and who has made some extremely relevant observations about the difficulty of dealing with these psychoactive substances. She must be right when she says that we should not delude ourselves into thinking that because the Commission proposals are in our view not fulfilling subsidiarity and are disproportionate, we therefore have all the answers. We clearly do not have all the answers, and the Minister admitted that. The question that comes up under subsidiarity is: will action at the European Union level add value and be more effective? That is where these proposals fall down: we do not have a perfect system, but the one that is proposed could lead to quite difficult issues arising if, for example, great harm were found in the UK from one of these substances—if people died from it—and we were not able to take action. That would be damaging both to us in Britain and to the European Union.
I hope that when this matter comes to be dealt with in Brussels—whether or not we reach the threshold for the yellow card, as it is called, which is perhaps not certain— the Commission will take a very careful look. It will need to reply to this reasoned opinion we are making, whether it achieves the yellow card threshold or not. I hope that it takes a very careful look again at the decision-making processes that it proposes. There are elements in the proposal that are excellent; clearly the EMCDDA has a bigger role to play in these substances and I hope that it will be given more resources as the new budget arrangements come into effect from the beginning of next year. It would be a good thing if that happened, because it does excellent work and could greatly help member states with the action that they have to take in this field. Europol devotes quite a lot of its resources to drugs and clearly has a major role to play in breaking up the trafficking of these products and so on. However, we take issue with the decision-making process; that is the basis for the reasoned opinion and the basis on which I beg to move.