Controls on Legal Highs

Lord Walney Excerpts

Thursday 9th September 2010 Westminster Hall

[James Brokenshire]

The hon. Gentleman makes an important point. In circumstances in which legislation subsequently changes, the criminal sanction still stands. That is why we have focused on the supply and public harm issues, rather than creating a possession offence.

If the ACMD were subsequently to determine that a drug under the temporary classification was not to move into a permanent classification, and someone had been convicted after an offence had been identified and a prosecution secured, that offence would still stand. That underlines the need for the protocol with the ACMD, which I have mentioned, allowing us to seek advice from it on the use of the temporary ban in the first place. That may be done on a more fast-track basis, but certain tenets need to be applied to that process, because the intention in using the temporary ban is not, as I have said, to circumvent the existing system but to use it. Issues to do with mephedrone and other legal highs have highlighted the potential need to act quickly, from a public harm perspective, and that is the focus of our intent.

[John Woodcock (Barrow and Furness) (Lab/Co-op)]

Does the Minister not agree that it would be strange if subsequent medical advice changed our understanding of a drug, and we had to say to a group of people who had deliberately circumvented the law—and not on the basis that they thought that there was a moral right to obtain this harmless drug—“Actually, it’s fine, you can get compensation for whatever penalties we imposed on you”?

[James Brokenshire]

The relevant point here concerning legal highs is that the ACMD flagged up to the Government its concern about mephedrone, pointing out that there was a problem it needed to do further work on to reach a final conclusion. It was so concerned that it was almost advising the Government to take preventive steps. Through this mechanism we want to be able to act, from a public harm and a warning perspective, to ensure that those issues are dealt with swiftly and quickly. In other words, we want to try to reduce the risk of harm occurring. That is the emphasis and intention behind the temporary banning power, and it is consistent with the approach taken in other legislation: that if the law is subsequently changed, pre-existing offences that may have been incurred still subsist.

I should like to mention Ivory Wave, which is causing a number of hon. Members significant concern and has been mentioned in the press and the media. I want to deal with certain reports associating the use of the so-called legal high-branded product Ivory Wave with a number of localised accident and emergency presentations in the last few weeks. Health alerts have been issued by the chief medical officers for England and Wales and Scotland, and the FRANK service was updated to highlight the risks that we are currently aware of that are associated with Ivory Wave. We are actively monitoring the situation. My Department has received early information from the Scottish Crime and Drugs Enforcement Agency that the latest Ivory Wave products associated with the admissions in Lothian may contain a non-controlled amphetamine-type stimulant, Desoxypipradrol, or 2-DPMP. Confirmation from forensic providers and details of other sampling is awaited.

In Edinburgh, Lothian and Borders police, in partnership with the City of Edinburgh public health authorities, have visited a number of head shops, which has led to the removal of Ivory Wave products from sale. Hampshire police have also conducted a joint operation with trading standards, raiding two head shops on the Isle of Wight, resulting in the seizure of large quantities of legal highs and the arrest of two individuals for suspected supply of controlled drugs. In the light of that information, earlier this week I spoke to the chair of ACMD, Professor Les Iversen, and asked the council to keep a close interest in developments here and provide advice as necessary. I have instructed my officials to share with the ACMD information that we have and provide regular updates.

There were previous indications that the so-called legal high Ivory Wave had contained certain controlled drugs. Different supplies of Ivory Wave using that brand name contain different drugs, some of which may already be controlled drugs, hence our seeking further information on the forensics and the nature of the drugs seized under that branding.

We are dealing with this emerging and dynamic problem of legal highs, including BZP, synthetic cannabinoids, mephedrone and the latest so-called legal high. Although effective legislation is integral to our response to protect the public—particularly the health of our young people—from the harms of the drugs, there is no easy fix. We are working closely with the ACMD out of a shared concern about these new psychoactive substances. As well as advice on individual drugs, our response will also be informed by the advisory council’s thematic work on legal highs. That response must be wide-ranging, encompassing all the strands that will reduce both demand and supply. But let me say clearly to anyone tempted to try a legal high that just because something is advertised as legal does not mean it is safe—and it may not even be legal.

[John Woodcock (Barrow and Furness) (Lab/Co-op)]

I welcome this debate and many of the steps that the new Government are taking, which follow the previous Administration’s effective and determined approach to tackling this difficult problem. I am glad to have the chance to speak in this debate, because there is a problem with the way we discuss so-called legal highs. Perhaps we need to find a better way of branding such drugs, which cause a great deal of harm to individuals and communities.

A number of issues that the Minister mentioned were also big issues in Barrow. I want briefly to mention a number of matters. First, he made an interesting point about the responsibility of traders to act in a way that minimises the harm to which young people can be subjected. I am glad that he gave an example of traders acting responsibly. However, I have to say that in Barrow, my personal experience prior to the election was not the same: local shops refused to cease stocking mephedrone before the temporary ban was put in place. Such an example calls into question whether the new powers that the Minister is suggesting, which are welcome, will go far enough in the important interim period that he rightly identified—in which a drug becomes controversial and notorious and the process to put a temporary ban in placed is started, and during which sales can increase.

The point made about the legality of so-called legal high drugs before they are in the public domain is apposite. We knew from personal experience—I should say that that this is not my personal experience—in Barrow of a substance called Shake ‘n’ Vac: a repackaging of mephedrone, which received a lot of attention during the mephedrone debate. That substance was sold in quantities of 1 gram for £15, purportedly as carpet cleaner, with the words, “Not for human consumption” written on it. It was laughable to suggest that the traders in question might believe that it was carpet cleaner, and it was clear that they did not. Is there not a way of immediately enforcing current law if it is sufficient to stop such products being mis-sold? If that is not possible under the current law, should it not be tightened? Could there not be a power to place an immediate suspension on suspicious substances, even before a temporary ban? If that power were used wrongly, traders could seek financial recompense, but in cases that seem as clear-cut as those experienced in my area, the chances of success would be slight.

[Tom Brake]

I understand the hon. Gentleman’s point, but does he foresee difficulties if someone sells Shake ‘n’ Vac—the real thing that goes into vacuum cleaners—and advertises it at £15 a gram? They would be selling a product at a super-inflated price.

[John Woodcock]

I take the theoretical point, but I am not sure whether, in the real world, one would come remotely close to such circumstances. Frankly, if my proposal catches some rogue traders who are prepared to dupe people, we could probably live with that. The level of damage that is being perpetrated and the risks to which young people are being exposed mean that we must make decisions that fall within the bounds of common sense, and I believe that they would be readily accepted. I am interested to hear more about what the Government can do.

My final point concerns agreement on how important it is to clamp down on this malicious and immoral practice. Can the Minister guarantee that, given the severe budget constraints on the police and the whole of Government, this work will not suffer in the months and years ahead?

[Tom Brake (Carshalton and Wallington) (LD)]

I welcome you to the debate, Mr Davies. This is the first debate in which you have been in the Chair, and the first in which I have participated under your chairmanship. I thank the Minister for initiating the debate. The problem of legal highs activates communities, and that was certainly my experience when a shop in my constituency, suitably called Your High, opened round the corner from a primary school and down the road from a secondary school. I am pleased that it has since shut, but it generated a lot of concern in the community, so it is right that we are debating the matter here.

I was interested and pleased to hear the Minister refer to Ivory Wave, which is the current so-called legal high, and I agree with the hon. Member for Barrow and Furness (John Woodcock) that we should find another phrase. Perhaps “soon-to-be illegal highs” might be appropriate. I was interested to hear the Minister refer to mephedrone but not meow meow. I understand from my street adviser, Grant Sibley, that only politicians and journalists refer to meow meow, and that mephedrone is the appropriate word.

This debate is focused on legal highs, but hon. Members will be aware that a wider drugs consultation is under way that looks at that issue, for which the closing date is 30 September. I hope that it will be possible for us, not now, but over the coming months and years, to have a more open and frank discussion about tackling drugs. All hon. Members here today know that the subject is difficult for politicians to address, because sometimes the most effective solutions as suggested by the evidence may not be politically acceptable, but we must address the problem in an evidence-based way. When people such as the former president of the Royal College of Physicians says that a blanket ban is not necessarily the most effective way of tackling the drugs issue, we must consider that and assess the implications, if any, for Government policy. We must find a way of creating space in which it is safe for politicians to debate these matters and to rely on what evidence-based solutions might recommend.

I was intrigued, interested and pleased that the Government are considering the approach to drugs adopted by the Portuguese and Spanish Governments. I see the hon. Member for Tynemouth (Mr Campbell) smiling, and I am sure that he will refer to Liberal Democrats being soft on drugs—that is a standard Labour phrase—but the fact is that Spain and Portugal have adopted a different approach towards personal possession. It is interesting that the all-party consensus in those countries about what might have been expected to be the consequences of such an approach did not transpire when that policy was implemented. I am not advocating that policy, but I am advocating that we should be allowed to debate it, analyse it and come to our own conclusions without being buffeted around by some of the media.

I shall focus more narrowly on legal highs. I agree that we need a new name, and perhaps the Minister will provide us with a definition of a legal high, if we are to continue to use that phrase. He rightly identified the need to educate people on the dangers associated with so-called legal highs, and it is clear, regrettably, that whatever is being done at the moment is not sufficient. As and when a legal high is found to be a toxic substance and becomes illegal, the producers simply move on to another product, a hybrid product, or simply rename the product. Unfortunately, people then go out and buy it. It is strange, but I suspect that some of the people who buy such products examine the list of ingredients for E numbers in products bought from supermarkets. They may avoid such products, but be happy to buy something with zero knowledge of what may be in it. It may contain herbal or chemical ingredients that may be toxic and are probably illegal, yet they buy it. Whatever we are doing educationally, it is not having the impact that it should. I agree that parents have a role to play, but in some families the matter is not discussed, so there is also a role for schools, which should perhaps include other drugs such as alcohol and be more proactive in addressing that concern.

I shall focus specifically on legal highs. The briefing that was prepared for this debate refers to the Misuse of Drugs Act 1971, but there is also the Medicines Act 1968. The Medicines Act can be used when something is said to have a physiological effect or a potentially harmful effect on the body, and we might be able to use it as well as, or instead of, the Misuse of Drugs Act to deal with some of these products. If so, will the Minister tell us whether there would be any advantages to doing that and what they might be?

I have some further specific questions. The Minister has responded on the issue of the temporary ban, and I understand his point. If we have a temporary ban—my colleagues and I support such a move—there is a very small possibility that a substance that is subject to such a ban will subsequently be found to be totally harmless. A person might be prosecuted and possibly found guilty and sent to prison, but we might subsequently find that the reason for doing that no longer exists. As the Minister said, it is essential that the ACMD’s protocol is clear and sufficiently robust. None of us would want a temporary ban to be imposed, only for the substance subsequently to turn out to be a perfectly harmless herbal product. We need to be confident that the protocol stands up.

[John Woodcock]

These people know what the law is when it is put in place, but they choose to break it. By the hon. Gentleman’s logic, if the advisory council came back at some point and said that cocaine was not actually that harmful after all, everyone who had been convicted of cocaine possession or distribution would be told, “It’s okay. You can come out.” Is that what he is suggesting?

[Tom Brake]

Fortunately, I am 101% certain that no one will come back and say that cocaine is harmless—if anything is certain in a drugs debate, it is that. All that I ask the hon. Gentleman to accept is that someone might think, perhaps quite rightly, that there is evidence that a herbal product is harmful, with the result that a temporary ban is imposed, but the product might subsequently prove not to be harmful. That is all that I am flagging up as an issue. All that I am saying is that we must make sure that the protocol is tough and ensures that such things do not happen.

Once the temporary ban has been imposed, what time scale would the Minister expect the advisory council to use in implementing the protocol? Would there be a maximum time frame in which a response would be required? Furthermore, will the advisory council have to take into account a balance-of-probabilities consideration at any point when determining whether something is harmful? Any clarity that the Minister could give us on that would be gratefully received.

The final issue that I want to mention is the impact of khat. The Home Office online report highlighted the concerns about khat. I do not know whether it referred to medical problems, but, interestingly, the most commonly cited social problems related more to

“tensions arising in response to a family member spending time and money”

on the product, than to any other consideration. Apparently, the link between the use of this particular herbal stimulant and offending was minimal. I would like to hear whether the Minister has more up-to-date information on the issue and whether the Department is considering it. I have certainly been lobbied by a local councillor who has concerns about the use of khat in their area. Will the Minister tell us, although perhaps not now, what progress is being made on the issue?

To conclude, we need to respond to legal, or soon-to-be illegal, highs, and I was happy to support the previous Government when they introduced the mephedrone ban. We need to be geared up to respond to these issues quickly, but I hope that we can also debate them more widely. In that way, we can make sure that whatever we do is the most effective way to tackle the crime and health consequences associated with drug use.

[Mr David Burrowes (Enfield, Southgate) (Con)]

I apologise for arriving late at this important debate. It is a pleasure to have my first opportunity to speak under your chairmanship, Mr Davies.

First, I want to acknowledge—this has probably been acknowledged before in one form or another—what a difference an election makes. In a short time, the Government have shown a firm lead on the issue of legal highs. Not so long ago—back in March—Professor Nutt, the former chairman of the ACMD, said of legal highs that

“it is virtually impossible to police the problem…the crime and justice side of things would get out of control. The police would spend their whole lives just arresting teenagers with mephedrone in their pockets”.

That defeatist attitude has been kicked into touch by a very sensible approach to mephedrone.

[John Woodcock]

Will the hon. Gentleman give way?

[Mr Burrowes]

In a moment. I concede that the previous Government eventually took action in relation to mephedrone on 17 April, but that was too little, too late.

--- Later in debate ---

[John Woodcock]

I am glad that the hon. Gentleman made some concession after I signalled that I wanted to intervene. If he wants to make partisan points, he needs to do slightly better. I hope that he agrees that this is a really difficult problem. We should welcome the fact that the previous Government acted very quickly in dealing with the difficult advice that it got from the advisory council, just as we welcome the fact that the new Government are taking further action.

[Mr Burrowes]

I thank the hon. Gentleman for that intervention. If he gives me the opportunity, I will reflect on the fact that it is not straightforward properly to legislate and carry out enforcement in this area. Nevertheless, we must recognise that by the time mephedrone was finally banned on 17 April, it was estimated to be the UK’s fourth most popular club drug and was used quite broadly, rather than by just a stereotypical demographic. It was sold by a new type of dealer. London was the world’s mephedrone capital and host to 53% of worldwide outlets. Mephedrone was implicated in 18 deaths in England and seven in Scotland. Given those figures, I repeat that the ban came too late.

None the less, I welcome the steps taken by the previous Government to ban mephedrone, and I welcome those taken by the coalition Government properly to put in place ways to help us to act quickly to tackle legal high drugs. The issue is that we should be able to move quickly to deal not just with mephedrone, but with the new drugs on the market. These drugs are readily accessible at the press of a mouse button, and they are coming on to the streets of the capital and the country. We need to look at how we can deal with the issue properly, and the Government have proposed ways to do that.

I want briefly to raise another issue. We must look overseas at the models that other countries are using to deal with the issue, which is obviously not just a domestic, but an international one. The context is the fact that when this country got to the point of banning mephedrone on 17 April, other countries, including European countries, did it more promptly. One need not go further than Ireland to see what is being done. I want to raise Ireland as an example, so that the Minister can take the opportunity to respond and consider whether its approach would be a way forward for this country.

On 11 May, Ireland’s Minister for Health and Children announced an immediate criminal ban, publishing a full list of legal high substances that were subject to a Government order and that were to be banned, as well as a criminal ban on a list of head shop products, and the prosecution of head shops themselves. Is there an opportunity to consider that example or any other examples in this country? As well as trying to deal with the substances and the ready access to them, and being able to respond quickly, Ireland dealt with another source of concern—the head shops that were springing up as an industry. That was dealt with on 11 May by the measure I have referred to, which led to the Government approving a crackdown on the operation of head shops.

The Criminal Justice (Psychoactive Substances) Act 2010 will further curb the threats posed by head shops and psychoactive substances. Under the new provisions, the sale or supply of substances that may not be specifically proscribed under Ireland’s Misuse of Drugs Act 1977, but which have psychoactive effects, would be a criminal offence. That is a much wider use of legislation to deal with new psychoactive substances coming on to the market, and will make it possible in Ireland to avoid the prolonged processes that we may well still be subject to. It would allow flexibility of approach in dealing with, and the mounting of prosecutions in relation to, the new psychoactive substances that are coming on to the market and causing such damage, particularly to young people.

I do not suggest that the Minister will be able to give a full response to that example, but it is worthy of consideration, not least because it comes from near neighbours with issues similar to ours. We may be able to learn from their example.