New Psychoactive Substances: EUC Report

Lord Sharkey Excerpts

Monday 11th November 2013 Lords Chamber

[Lord Sharkey (LD)]

My Lords, it is a pleasure to follow the noble Lord, Lord Hannay, as it is to serve under his chairmanship on your Lordships’ EU Sub-Committee F, which produced the report which forms the basis for this debate. New psychoactive substances, or so-called legal highs, continue to be a serious concern. Not only are many of these substances very dangerous, but more of them are invented and marketed throughout the world every year, which of course includes within the EU. The number of new psychoactive substances detected tripled between 2009 and 2012. The EU Commission reported in September that so far in 2013, more than one new substance has been reported every week.

This is a matter for urgent concern and urgent action, because many of these new substances may well turn out to be very dangerous. Every week, the UK news media report tragic stories involving the use of these substances. Three weeks ago, the Daily Mail reported the case of a 20 year-old boy from Gravesend who died within hours of taking a legal high. He was found next to a plastic bag from the legal high shop, UK Skunkworks. A teenager in Southampton died in August after taking alpha-methyltryptamine. There are many similar stories. These drugs are generally easy to get hold of, both on the net and on the high street. The Sunday People reported last month that UK Skunkworks, a retailer of legal highs, now has 21 shops in the UK, including one in Maidstone which is situated next to a drug rehab charity.

The problem of legal highs is of particular concern here in the UK. Britain accounts for nearly a quarter of Europe’s entire legal high market, compared to France at 14% and Germany at 12%. There are drugs which are common here in the UK that are rare elsewhere in the EU, and vice versa. As the noble Lord, Lord Hannay, said, in general the market for these drugs is characterised across the EU by rapid innovation locally, and by differing levels of the presence of different drugs in different member states.

The EU already has in place a mechanism for dealing with and banning new psychoactive substances, but this mechanism is widely acknowledged to be cumbersome, slow and not especially effective. The new regulation proposed by the EU is intended to replace this with an improved version, but we already have an improved version in operation in the UK. Here, Ministers are able to issue temporary class drug orders, which ban a drug for 12 months to allow the Advisory Council on the Misuse of Drugs to report on whether a permanent ban should be put in place.

We already use this mechanism to react very quickly to the appearance of new, worrying legal highs. In the past 12 months we have used this power to ban substances called NBOMe and Benzo Fury. We also now control mephedrone, naphyrone, BZP, GBL and synthetic cannabinoids. These were all previously legal highs. All of this is driven by the Home Office forensic early-warning system, which has the job of identifying early new psychoactive substances which are potential threats. In fact, in the past year the forensic early-warning system identified 10 new psychoactive substances not previously seen in the UK and, importantly, not present elsewhere in Europe. Of course, here in Britain we also have an extensive education programme aimed at alerting people to the dangers of the drugs that are found here. The Government deserve particular praise for their 10 year-old “Frank” programme, which has a new advertising campaign beginning in January.

The question we are addressing this evening is whether we should give up control of our system of policing and controlling new psychoactive substances, which works well, and hand it over to the EU. There is no compelling evidence to suggest that this would be a good or even a sensible idea. The new EU regulation proposes a power to impose a temporary measure, restricting new psychoactive substance sales for a year, to be introduced within weeks of an alert. We already do this, and we can do it when the problem is not present elsewhere in the EU. The new EU regulation proposes permanent measures that can be introduced within 10 months to restrict the sale of new psychoactive substances to consumers. We can already do this, too. Again, we can do this for substances that may not yet be present in the rest of the EU.

The new regulation simplifies the existing EU procedure, but the new procedure will still be relatively slow and complex. According to the EU’s own description of the procedure, a substance must raise concerns across the Union before EMCDDA and Europol draft a report on the substance. On the basis of this joint report, the Commission then decides whether there are grounds to require a fully fledged risk assessment. This is too slow, too complex and too coarse-grained, and it is not necessary here. We already do better than this. This would certainly not help, and would in fact be a retrograde step. Giving competence to the EU, as in the proposed regulation, would add nothing at all. The proposal fails the test of subsidiarity, which is why I strongly support the Motion to issue a reasoned opinion to that effect.

[Baroness Meacher (CB)]

My Lords, I shall speak to the Motion to Take Note concerning the proposed directive and EU regulation on new psychoactive substances. The European Commission’s head of unit on anti-drug policy, Dana Spinant, sent me the draft regulation for comments some weeks ago and I want to put on record that views that I expressed to her.

The interest of this regulation for the APPG for drug policy reform, which I chair, follows our one-year inquiry into the supply, demand and risks associated with new psychoactive substances in the UK. In the course of that inquiry we received evidence from the Home Office, the UK Border Agency, ACPO, the ACMD, experts and front-line specialists on the subject. What was surprising was the degree of consensus about the challenge of new psychoactive substances to our country, and the fact that our current drug laws are not fit for purpose to deal effectively with these new drugs. Our report, Towards a Safer Drug Policy, sets out our conclusions, which resonate well with key points in the draft regulation. I feel bound to pick up a point made by the noble Lord, Lord Sharkey, who said that our laws are working well. The reality is that all those experts, whether they were from the Home Office, ACMD or the UK Border Agency, were clear that our laws are not working well and are not fit for purpose. They were not designed for this kind of problem at all, so we have to take that on board.

I welcome the comments of my noble friend Lord Hannay that the aims of the proposed directive and regulation are laudable. I also welcome his recognition that the EU has an important role to play in helping to tackle the problems presented by new psychoactive substances—or NPS, if I may call them that. The fact is that we cannot deal effectively with these drugs at a national level. I note that the EU committee does not support acceptance of the regulation on the grounds that flexibility will be important, but I would like to put on record reasons why the thrust of the regulation should be supported even if the proposed status of regulation might be rejected. I will comment on just three issues: first, the consultation undertaken before producing the draft regulation; secondly, the role of the EU in assessing new psychoactive substances; and, thirdly, the focus on the supply side of the market.

The Commission has undertaken an incredibly widespread consultation, as we did in our inquiry, to ensure that the draft regulation reflected people’s views— that is, experts’, doctors’ and scientists’ views. Large numbers of member states view the lack of alternatives to control and criminal penalties in the current instrument as inadequate and suggest that a wider range of options should be considered, backed by the administrative law. Obviously, that is for the lower-level substances. This is something that the All-Party Parliamentary Group on Drug Policy Reform agrees with most strongly. The fact is that bans and criminal sanctions are not effectively stemming the flow of new psychoactive substances into Europe, nor indeed into the UK. Of course, the UK has a problem with NPS twice the average for the European Union. We are the leaders in this field. This is where the drugs come from China and India before flowing across Europe.

The Commission’s impact assessment concluded that,

“a more graduated and better targeted set of restriction measures on new psychoactive substances”,

would be preferred. Its rationale is that if low-harm, properly labelled substances were available for young people to take and if it was clear what those substances were, with their risks and so on, those people might be more likely to avoid the much more dangerous substances, which would need to be banned. Some warned that blanket restrictions on entire groups of substances could have adverse effects and that restriction measures should be proportionate to a better determined level of risk of substances. All the evidence presented to our APPG on Drug Policy Reform’s inquiry supported these views from the EU. All the experts were saying that we need a proportionate response and a risk-based policy.

The main adverse effects of punitive measures are familiar to us. First, there is the displacement of one set of drugs by new substances that are possibly even more harmful. Indeed, they are more harmful because they are even less known. When something just arrives from China, you have no idea what it is. As we ban one, along comes another, or maybe another two. Secondly, rendering such substances inaccessible for research and legal commercial activities presents major problems.

I turn to information gathering and exchange, and the assessment of risks of new psychoactive substances. The European Monitoring Centre for Drugs and Drug Addiction was established by regulation in 2006 and has done an excellent job in generating information about drugs and drug use across the EU. The proposal for a regulation on NPS makes it clear that the EMCDDA should have a central role in the exchange of information on NPS and in the assessment of the health, social and safety risks that they pose.

The APPG’s inquiry panel was very concerned that our Advisory Council on the Misuse of Drugs has the resources to undertake risk analyses on only two NPS per year. With about 70 new substances due to come into this country in 2013, clearly we are completely losing the battle. If all EU countries contributed to resourcing the EMCDDA—which to an extent they do already, but clearly it needs more support—it could then co-ordinate this work on behalf of all, avoiding duplication. More substances would be analysed and sensible policy decisions could then be made based on the risk analyses that might be undertaken, two per country, across the EU. We would then be beginning to tackle the problem. As the European Commission proposal makes clear:

“Any Union action on new psychoactive substances should be based on scientific evidence”.

That has to be the fundamental principle behind our policy but while we have no resources to provide the scientific evidence, we cannot have a scientific or an evidence-based policy.

My third point is on the focus of the regulation upon the supply side of the market. The proposal for the regulation refers to the fact that restrictive measures vary significantly in different member states. This is a major problem for legitimate economic interests. In the case of the same NPS, they have to comply with different requirements such as pre-export notifications, export authorisation or import and export licences. All this hinders the functioning of the legitimate internal market for particular products which happen to have one NPS as an ingredient. New psychoactive substances should be able to move freely within the Union when intended for genuine commercial purposes, as well as for scientific research. The research professors who gave evidence to us were certainly worried about the control of these substances happening in a thoughtless way that was not based on evidence. At the same time, NPS that pose a medium or severe health, social or safety risk should be addressed at the Union level by controlling the supply appropriately and fairly across the EU. I support the EU regulation for two reasons: it concentrates upon the supply side and it highlights the importance of proportionality of the response.

I end by congratulating the Government on the effective decriminalisation of the possession and use of new psychoactive substances for a 12-month period under the temporary class drug orders, which focus on the supply side. If the UK adopted the EU regulation or the ideas within it, the 12-month limit to drug orders should no longer apply. This would be a positive step forward. According to the evidence, decriminalisation of the possession and use of drugs does not lead to an increase in drug use and can lead to a reduction in drug dependence. It also has the benefit of enabling resources to be transferred from criminal justice to treatment, thus raising the prospects of people recovering and getting back to employment.

In conclusion, I respect the recommendation of my noble friend Lord Hannay that the proposed draft regulation be rejected. However, I hope that the valuable proposals in it will not be lost and will inform decisions about how the UK and the rest of Europe move forward to deal with the very real problems presented by new psychoactive substances.