Psychoactive Substances

Norman Baker 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.

[Mr John Redwood (Wokingham) (Con)]

What is the prognosis, assuming that the House agrees with the Minister’s sensible view tonight, for getting the EU to drop this interference and let us do what we want?

[Norman Baker]

It would be helpful if this House passed a reasoned opinion, and there was certainly support in the other place in a debate earlier this evening. I know that other member states have similar views, whether or not they are in favour of the Commission’s proposals, on the justification for this particular legal base. I am hopeful that good sense will emerge as a consequence.

[Mr Andrew Tyrie (Chichester) (Con)]

Can the Minister say when in the past we have succeeded in winning an argument of this type on the basis of the subsidiarity case?

[Norman Baker]

I am not an expert on the history of EU legislation, fortunately, but this case seems to me to be somewhat blatant and rather clear-cut, so I am certainly hopeful that we will make progress on this occasion, not least because of the support from other member states.

[Steve Brine (Winchester) (Con)]

I thoroughly support what the Minister is saying. This is not only unwelcome interference in a member state’s affairs, but could be very dangerous. He knows of the case of a constituent of mine from Chandler’s Ford—I have raised it in questions recently—in which the Government were able to respond, although not as quickly as I would have liked. What is proposed here from an EU level is actually quite dangerous.

[Norman Baker]

So far there has not been great success with regard to the speed of activity from the European Union. The proposals it is putting forward would, in my view, be slower than the present UK proposals, so irrespective of the legal base, that is not a good message to send out to those who wish to deal with what are often quite dangerous substances.

[Mr William Cash (Stone) (Con)]

Would the Minister be kind enough to give way on a point of information, because I wish, through him, to answer the question from my hon. Friend the Member for Chichester (Mr Tyrie)? There have recently been a number of successful challenges in relation to reasoned opinions on subsidiarity, including on a European prosecutor’s office. We will continue in this House and in the European Scrutiny Committee to take the appropriate and necessary advice and get it right.

[Norman Baker]

I thank the hon. Gentleman for that information. Of course, his knowledge of European matters is second to none in this House—[Interruption.] I did not say whether or not I approved of it.

The proposed regulation has features that might be appropriate if harmonisation of a legitimate internal market was genuinely required, but when applied to the control of these substances by member states, the proposal greatly exceeds any action required at EU level and thus does not comply with the principle of subsidiarity. For those few psychoactive substances that have legitimate uses, which amount to fewer than 2% of the more than 300 substances identified by the European Monitoring Centre for Drugs and Drug Addiction since 2005, our framework is already flexible enough to place controls on those substances to restrict recreational use without hindering genuine use in industry.

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

Does the Minister believe that the European Commission’s impact assessment is mistaken? It states that member states would be able to apply national measures before the introduction of any EU-level measures and go further than what is foreseen by EU measures. It suggests that the UK would not be fettered. He clearly disagrees. Why?

[Norman Baker]

I do not think that is correct. Certainly, with regard to those substances classified as severe, with the top rank of measures, we would not be able to countermand the EU description applied to the substance unless the European Commission agreed to do so on application from the member state, so I do not think that is correct.

[John Mann (Bassetlaw) (Lab)]

I know that the Minister has his finger on the pulse when it comes to the use of drugs in this country. What percentage of legal highs that come into this country are ordered via the internet from other EU states?

[Norman Baker]

I am not sure whether I heard the question correctly, but the acquisition from the internet of legal highs is, fortunately, a minority activity at the moment, but we need to keep an eye on it. The majority of legal highs are sourced elsewhere.

[John Mann]

How does the Minister know that?

[Norman Baker]

The Government and law enforcement agencies have investigative resources, so we monitor these things very closely, which I hope is what the hon. Gentleman would expect us to do.

[Caroline Nokes (Romsey and Southampton North) (Con)]

One of the real problems with so-called legal highs is that they are available in shops on our high streets, so young people believe that they will not do them any harm. What action will the Government’s decision enable us to take to crack down on their sale on the high street?

[Norman Baker]

Law enforcement agencies take action against the sale of illegal substances. As I have said, some 19% of so-called legal highs contain controlled substances. Other steps are being taken through other legislation to deal with these matters and I assure my hon. Friend and others that the Government is looking actively at what other steps we can take to deal with this increasing problem.

Let me make some progress. On our reading of article 4 of the proposed regulation, member states would only be able to adopt their own measures—this is the point raised by the hon. Member for Barrow and Furness (John Woodcock)—in relation to substances that are not the subject of EU restrictions. Where the EU has acted, member states would not be free to impose their own standards. Given that the new regulation provides for a tiered scheme of restrictions, it is entirely possible that the EU may decide that a measure merits a moderate restriction, whereas our own scientific evidence and domestic concerns suggest that it should require a severe restriction, with the ensuing categorisation under domestic drug control legislation. The reverse, of course, equally applies. This scenario further demonstrates our belief that the proposals as they stand are incompatible with subsidiarity, as member states must have the flexibility to impose the appropriate level of controls as circumstances within their borders merit.

Given the experience since 2005, it is difficult to see how enhancing the EU’s prerogative in controlling these substances would meet the second condition of subsidiarity, namely that objectives can be better achieved at EU rather than member state level. Under the current risk assessment and control framework, only 13 risk assessments on such substances have been carried out by the EU since 2005, with nine substances subsequently coming under EU-wide control. Of these, the UK had already controlled eight, and we have since controlled the ninth as well. The control of just nine substances in eight years is woefully insufficient to keep pace with the fast-moving marketplace. Although the current proposals would involve an accelerated risk assessment and control process, that would still be a reactive model in which it would take time for sufficient evidence of harms to emerge to trigger a risk assessment.

Furthermore, the vast majority of these substances seen in Europe in recent years have already been classed as illegal drugs in the UK. With many other member states also being well ahead of the EU-level response to this threat, we simply do not accept that the Commission’s proposals would add any material value at all to the domestic approaches already being taken.

We also believe both the regulation and the directive to be Schengen-building measures, a view which is not to date accepted by the Commission. Although we will be arguing that these proposals build on areas of the Schengen agreement in which the UK participates—and thus is able to opt out of—that does not necessarily mean we would exercise that power. The proposals as they currently stand, and as they develop through negotiation, will be judged on their merits, with the primary considerations being the subsidiarity and proportionality of the measures.

Having said all that, I readily acknowledge that we have benefited greatly from the EU-level monitoring and identification systems put in place for these substances, and support strongly a role for the EU in facilitating the sharing of information and best practice in responding to developments. Indeed, I suggest that an enhanced role for information exchange is where the true value of EU action lies. However, we do not believe that the current proposals for common standards in relation to controls on new psychoactive substances are consistent with the principle of subsidiarity, as sanctions in this area are best determined by member states responding flexibly to national circumstances. It is for that reason that I commend this motion to the House.

[Diana Johnson (Kingston upon Hull North) (Lab)]

I welcome the Minister to his post. The Opposition were particularly pleased about his appointment to the Home Office. I thank him for his explanation of the Government’s position on this proposal.

The European Commission’s proposals are technical but important. We should be thankful for the work undertaken by members of the European Scrutiny Committee to assist our deliberations. As the Minister explained, the measures are an attempt to take an EU-wide approach to the problem of legal highs. No one in this House should underestimate the scale of the problem. The UN estimates that the UK has the largest legal highs market in the world. It is estimated that 670,000 young Britons aged 16 to 24 have taken legal highs.

Many of the figures on the scale of the problem already come from the EU through the European Monitoring Centre for Drugs and Drug Addiction. That agency found 73 new synthetic drugs in 2012, which is up from 49 in 2011. The rate of proliferation is increasing. At times this year, about two new substances have been arriving in the UK market every week. Hundreds have been catalogued in the marketplace. There are more than 500 internet shops that supply the substances to the UK market. There are also an unknown but increasing number of head shops on the high street.

It is therefore clear that there is some truth in the Commission’s assessment that member states have not been able effectively to respond to the threat posed by legal highs and that collective action is needed. The Commission is perhaps being unfair on several other member states that have taken action. Countries such as Ireland have been more proactive in responding to the rapid proliferation of the new drugs. The UK Government have been singularly ineffective in tackling this problem. That is why the UK market is now the largest in Europe.

[Norman Baker]

I just want to put the record straight. The hon. Lady mentioned that there were 49 new drugs in 2011. Only 17 of those crossed the channel to the UK and 14 of them were already controlled by the UK Government. Of the 73 in 2012, only 18 have been seen in the UK and eight had already been controlled.

[Diana Johnson]

I will come on to the discrepancies between the Home Office figures and the figures of other bodies. The Home Office does not have access to the figures on all the new legal highs that are available on the internet and in head shops.

I want to return to the EU proposal to introduce a cross-European response. The Commission proposes to strengthen the existing monitoring centre, the EMCDDA, to enable it to undertake assessments of new substances and determine how dangerous they are. That determination will inform a classification that is decided on by the Commission with some input from member states.

The Commission wants to address two problems through the proposals. The first and, going by the Commission’s documents, possibly the foremost, is the impediment to the legitimate trade in new psychoactive substances caused by restrictions imposed by individual member states. Secondly, the Commission recognises the public health need. From the drafting of the proposals, it could be construed that the Commission is giving that secondary status.

I agree with the evidence of the Minister for Immigration to the European Scrutiny Committee in which he said that it was not entirely clear what “mischief” the Commission was attempting to tackle. In the regulations, free trade appears to be afforded equal status to prevention of harm. The Opposition share the Government’s surprise that the regulation is justified under the legal auspices of protecting free trade, rather than article 5 concerns relating to justice and home affairs. That focus is surprising given that even the Commission recognises that only a small, unquantifiable percentage of new psychoactive substances have a legitimate use.

The European Scrutiny Committee states that the

“trade in new psychoactive substances for legitimate purposes is difficult to quantify”.

I agree with its conclusion:

“Given that uncertainty, as well as the known risks associated with their recreational use, we do not consider that new psychoactive substances should necessarily be treated in the same way as other tradable commodities… Divergent national rules cited by the Commission as an obstacle to legitimate trade, in our view, often reflect differing cultural and societal attitudes towards the regulation of drugs”.

Although the Opposition have some reservations about the Commission’s motivations, we are willing to engage in addressing the health harms posed by legal highs. We also give the Commission some credit for recognising that harm.

Reading the Commission’s proposal, however, it is not clear how it would determine harm. Article 7 lays out the procedure for risk assessment connected with the substance, and article 10 states the conditions for the determination of levels of health, social and safety risks, following the risk assessment. Article 9 deals with urgent public health requirements, while articles 11, 12 and 13 lay out three levels of control, depending on the level of risk identified. It is important to note for article 11 and substances deemed a low risk that that would mean no restrictions at all.

That does not give an entirely satisfactory account of how the EMCDDA would determine the level of harm associated with each drug. The articles I have mentioned lay out a process, but it is not entirely clear that the EMCDDA will have the evidence available to make classifications that correspond to the level of harm outlined. EMCDDA assessments would not extend to clinical trials, and it is therefore not clear how it would be in a position to rule out addictiveness, long-term psychological harm, or the effect of combining the drugs with alcohol.

It is important to remember that most deaths associated with legal highs come about accidentally, and I am not convinced that the Commission’s proposals adequately explain how the EMCDDA would account for such dangers. Perhaps the Minister will set out the Government’s position on that point, and say what representations the UK Government have made to the Commission. It is also not clear how such proposals will impact on the UK’s capacity to determine our own classification system—a point raised by my hon. Friend the Member for Barrow and Furness (John Woodcock).

--- Later in debate ---

[Norman Baker]

I thank the shadow Minister, the hon. Member for Kingston upon Hull North (Diana Johnson), for welcoming me to the Front Bench on this matter, and I agree that the key issue is that the EU basis, suggesting there is an impediment to legitimate trade, is completely wrong. That is why the EU proposals are unacceptable.

The early-warning system does work. In fact, I referred AMT to it only a week or so ago, when my hon. Friend the Member for Winchester (Steve Brine) prompted me to do so. The early-warning system is also activated in terms of Exodus Damnation, so that we can see what can be done about that. What we have done successfully in this country is ban families of substances, and even substances that do not exist, in anticipation of what might come next.

[Mr Julian Brazier (Canterbury) (Con)]

I strongly support the Minister’s stance against Europe on this issue and thank him for his detailed letter on the point that he has just made. As two of my constituents have died from legal highs, however, may I urge him to be open to testimony from the police that the generic ban to which he refers is not yet covering everything that it needs to cover?

--- Later in debate ---

[Norman Baker]

It is certainly true that new substances appear all the time, and how we deal with that presents a real challenge. I am looking at that, and it is a very high priority for the Home Office.

I can assure the hon. Member for Kingston upon Hull North that the Government recognises the need for EU-wide co-operation. We strongly support that and recognise its value in tackling this menace. She need have no worries on that front.

The hon. Lady talked about the numbers and asked for clarification about what the EU had said, as opposed to what the UK had said. Only 74 out of 270 substances identified by the EMCDDA have been found in this country—only 27%. That may account for the different figures. She asked whether it can make an adequate assessment. The answer in my view is no, which I think is her answer as well. That is one of the points that we will make in our discussions with the EU. Negotiations are at an early stage, but we will raise the points made both by the Committee and in the House tonight.

I can assure the hon. Member for Bassetlaw (John Mann) that it is not galling for me to diss the EU, as he put it. I have always believed in subsidiarity. I believe that decisions should be taken at the lowest possible level. This is an appropriate decision for the member states to take, not the EU. It is as simple as that.

We have a very good way of approaching these matters that works. It is not true to say that we are not seeking to ban substances to reduce police activity. We have banned 200 such substances in recent times, compared with just the nine banned by the EU in eight years. So we have been very active in banning substances in this country. The hon. Gentleman talks about cuts in the police, but he might reflect on the fact that crime is down by 10% under this Government since 2010, so that was also a nonsensical point to make in justifying his case. I agree with him, however, that people sometimes take legal highs instead of alcohol. That is a matter that we are dealing with, which is why we have banned 200 substances, or thereabouts, in recent times. Finally, I welcome his contribution about psychoactive substances, caterpillars, snails and lettuces. With that, I ask the House to support the motion.

Question put and agreed to.

Resolved,

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.