New Psychoactive Substances: EUC Report — Motion to Take Note

– in the House of Lords at 7:30 pm on 11th November 2013.

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Moved by 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).

Photo of Lord Hannay of Chiswick Lord Hannay of Chiswick Chair, EU Sub Committee F - Home Affairs, Health and Education 7:36 pm, 11th November 2013

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.

Photo of Lord Sharkey Lord Sharkey Liberal Democrat 7:45 pm, 11th November 2013

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.

Photo of Baroness Meacher Baroness Meacher Crossbench

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.

Photo of Viscount Bridgeman Viscount Bridgeman Conservative 8:00 pm, 11th November 2013

My Lords, I thank the noble Lord, Lord Hannay, for his excellent exposition of this report. My noble friend Lord Sharkey has given the background in some detail. The noble Baroness, Lady Meacher, has given more qualified support.

As a relatively new member of this committee I am struck that this is a classic case of subsidiarity: where there is a clash of joint competences between the

Commission and a member state, the member state should prevail. I hope that I do not put that too simply. It is also an example of proportionality. We found that the Commission’s concern that legal transmission of these substances was disproportionate. Insufficient data were produced. We therefore disagreed with the Commission on that point. My third point is that this report makes it clear, if our views are taken into account, that the member states will be dependent on the two central bodies referred to by the noble Lord, Lord Hannay, and other back-up services from the Commission.

I conclude by reminding your Lordships that my honourable friend Norman Baker, my Liberal Democrat colleague in the Commons, was fully supportive of the view at which the committee has arrived.

Photo of Lord Rosser Lord Rosser Shadow Spokesperson (Defence), Shadow Spokesperson (Home Affairs), Shadow Spokesperson (Transport)

My Lords, I extend our thanks to the noble Lord, Lord Hannay, and his committee for their report. It contains a clear recommendation that there should be a reasoned opinion concluding that the proposed regulation and directive do not comply with the principle of subsidiarity.

As has been said, psychoactive substances are natural or synthetic substances that affect the central nervous system, and induce a stimulating or depressing effect in the same way that illicit drugs such as cocaine or ecstasy do. They are often marketed as legal alternatives to illicit drugs, which is why they are called “legal highs”. Like illicit drugs they can cause considerable harm to those who use them, including severe physical or psychological harm, or even death.

Many new psychoactive substances have or could have other uses in, for example, the medical, chemical or high-tech industries. Around a fifth of the substances notified through the EU-level mechanism of exchange of information have some other legitimate uses. New psychoactive substances are not, however, subjected to control measures under the UN conventions on drugs and are not therefore covered by a Council framework decision of 2004 on the approach to the fight against illicit drug trafficking.

However, the number of new psychoactive substances emerging and spreading increasingly quickly in the European Union is rising fast, and more than 300 new substances have been detected in Europe since 1997, with the number of substances identified between 2009 and 2012 tripling from 24 to 73 a year. The rise in the availability of such substances has led to an increase in consumption across the EU, and 80% of new psychoactive substances are reported in more than one member state.

As we have heard, the European Commission considers that the current EU instrument of 2005 on the information exchange, risk assessment and control of new psychoactive substances is unable to provide an adequate response to this growing challenge, because it does not enable harmful substances to be withdrawn from the market quickly enough, or provide a response proportionate to the level of risk involved. The Commission’s new proposals that are the subject of this report seek to establish rules for restrictions to the free movement of new psychoactive substances, and are also intended to enable quicker and more proportionate measures to be taken on such substances.

The measures proposed would be introduced within weeks in case of an immediate risk and would restrict the sale of new psychoactive substances to consumers across the EU for one year. Alternatively, they could be introduced within 10 months and would restrict the sale of a substance to consumers across the EU and, in cases of severe risk, even their use in industry. They would be directly applicable in the member states and would not need to be transposed into national law. According to the Commission, under the current system the entry into force of restriction measures takes up to 24 months.

The Commission proposal also seeks to provide for the most harmful new psychoactive substances to be covered by the same criminal law provisions as substances controlled by the UN conventions. The proposed regulation is also intended to improve the functioning of the internal market in respect of legal uses of new psychoactive substances by reducing obstacles to trade and increasing legal certainty to economic operators.

Under the Commission’s proposals the European Monitoring Centre for Drugs and Drug Addiction—the EMCDDA—would be advising the Commission to take no further action in respect of a substance assessed as low risk. We would have concerns about this, because it is not clear by which means or form of testing the EMCDDA would come to this conclusion, and how it would assess long-term and psychological harms. We do not agree with ceding to the EU powers to classify drugs, but we certainly agree with EU-wide co-operation on a laboratory with power to give advice and information, as has been pressed for by the United Kingdom Drug Policy Commission and others.

The Commission considers that its proposal is consistent with the principle of subsidiarity, because member states alone cannot reduce the problems caused to the internal market due to their divergent responses to the new psychoactive substances, and because EU-level action is necessary to ensure that potentially harmful new substances can be identified, assessed and, if necessary, withdrawn quickly from the market across all member states. The EU committee report disagrees with the Commission’s assessment that its proposal satisfies the principle of subsidiarity, which provides that in policy areas that do not fall within the exclusive competence of the EU, but where competence is shared with the member states, the European Union can act only if and in so far as the objectives of the proposed action cannot be sufficiently achieved by the member states.

The EU committee, as the noble Lord, Lord Hannay, has set out, has given its reasons for believing that it is actually the member states that are best placed to decide how to respond to the proliferation of these substances in a manner that best fits the circumstances in their jurisdictions, and that it is of the utmost importance that member states retain their ability to decide what action should be taken in their jurisdictions regarding new psychoactive substances. On improving the functioning of the internal market in respect of their legal trade, the EU committee says, as once again the noble Lord, Lord Hannay, has said, that the UK Government’s evidence indicates that the legal trade in such substances is not sufficiently extensive to warrant the Commission’s proposed action that the committee thus regards as a disproportionate response.

We share the committee’s view, in respect of new psychoactive substances, that the case has not been made to justify transferring member states’ decision-making power to the Commission, and that the proposed regulation and directive do not comply with the principle of subsidiarity. But I have a couple of points to raise with the Minister.

The United Kingdom appears to have Europe’s largest legal highs market. At present it is not that far short of 100 new psychoactive substances arriving on the UK market per year. Yet the Government’s temporary banning order has been used just some three or four times. There appear to be two reasons. The first stage of the process is, I believe, a letter from a Minister to the Advisory Council on the Misuse of Drugs—the ACMD—but with the letter seeming to take some time to be sent. The second reason is the resource capability of the ACMD that apparently can assess only two or three new substances a year. Perhaps the Minister could comment on this situation and give us his view of the reasons for it.

The EMCDDA produces lists of new psychoactive substances. Despite requests, no explanation has been offered to date as to why there are substances on its list that have not made it on to any Home Office list. Perhaps the Minister could provide this explanation. As things stand, it seems that we will never be able to keep up with the number of new such drugs on the market, despite the apparent universal concern, including from the EU committee, about the risk of harm to the health and safety of citizens across Europe posed by the creation, availability and use of these new psychoactive substances.

In conclusion, I reiterate that we support the recommendation in the EU committee’s report.

Photo of Lord Ahmad of Wimbledon Lord Ahmad of Wimbledon Lords Spokesperson (Department of Business, Innovation and Skills), Lord in Waiting (HM Household) (Whip)

My Lords, I thank the noble Lord, Lord Hannay, for tabling this debate and through him, as chairman, thank the other members of the committee. The EU proposals published on 17 September on new psychoactive substances raise many issues around the principle of subsidiarity, and I think that warrants the attention of this House.

My noble friend pointed out that the Minister for Crime Prevention, Mr Norman Baker, gave evidence to the European Scrutiny Committee on 16 October. The reason for the debate today is to consider how the House wishes to respond and whether it wishes to issue a reasoned opinion to the EU institutions.

The European Commission’s draft regulation and directive aim to strengthen the European Union’s ability to respond to new psychoactive substances. The new regulation will replace the existing EU instrument, council decision 2005/387/JHA. The directive is a consequential instrument for member states to enforce the regulation through appropriate criminal penalties for new psychoactive substances categorised as severe risk.

In recent years, new psychoactive substances—NPS or, as already referred to in this debate, legal highs—have rapidly changed the nature of the global drugs market.

The noble Lord, Lord Rosser, made this point very well. Substances that are not under international control but mimic the effects of controlled substances are now widely available. They have the potential to pose serious risks to public health and safety. My noble friend Lord Sharkey highlighted recent cases and the tragic responses. The speed at which the market has developed, the wide availability and accessibility of NPS legal highs and the concern about their increasing use makes this a significant issue that is not just national or European but global in nature and requires collective action at all levels. We have a comprehensive and well recognised response to new psychoactive substances that covers early warning, legislation, demand reduction and treatment, as well as galvanising international co-operation and activity. I will come to that in a moment.

In our legislative approach, we have deployed generic definitions whereby entire families of drugs are brought under the Misuse of Drugs Act 1971. This approach has continued to place the UK in a much stronger and more durable position. Temporary class drug orders enable us to ban NPS in weeks rather than months where there is an immediate concern. Through these mechanisms, we have controlled the majority of NPS seen in the EU since 2005. Since 2010, we have controlled in excess of 200 new psychoactive substances including 15 currently under temporary control. That point was also made by the noble Lord, Lord Rosser.

While the EU-wide NPS identification and monitoring component has been very useful to us in complementing our own drug early warnings systems, it is harder to see the benefit of the risk assessment and banning process. To date, the requirement for member states to ban certain NPS has had little impact for the UK. Just 13 risk assessments have been conducted, and only nine NPS have been subject to this requirement, of which eight had already been controlled in the UK, including mephedrone.

As my noble friend Lord Bridgeman pointed out, the principle of subsidiarity is that decisions should be taken as close as possible to the citizen. As such, the EU should act only where it would add value. The Government are concerned that, as drafted, Article 4 of the regulation would fetter our discretion to respond flexibly to national issues with NPS as they arise. All noble Lords have made this point. The proposals are currently drafted under the Article 114 legal base, which is about internal markets and makes this a harmonisation measure, rather than setting out minimum standards under Title V.

Given that only 13 risk assessments have been conducted under the existing NPS instrument since 2005, it is difficult to see how, without significant additional resources in the early warning and risk assessment processes, the proposals will impact in any notable way on the NPS market. With many member states over the past four or so years bringing in extensive domestic measures to control such substances, the value of the potential control measures under the new proposals is unclear.

Beyond the concept that there is a legitimate trade in NPS that needs to be accepted and, indeed, protected, the fact that the UK has placed restrictions on the majority of NPS seen in the EU undermines the suggestion that the proposals would add value to the UK’s current approach. The noble Lord, Lord Hannay, pointed this out.

The Commission’s argument is that one in five NPS has a legitimate purpose, for example, in industry. However, the UK’s experience is that such substances are the exception rather than the rule. In fact, out of more than 300 substances, we can identify only a handful: two as industrial cleaners and a few others, called piperazines, used in the preparation of medicines. Our current legislation has the flexibility to accommodate these substances by enabling their legitimate use in industry to continue while restricting wider availability. We are looking to challenge the Commission’s evidence base to understand how it came to its conclusion that there is a substantial legal use for NPS.

Given the lack of evidence for a legal trade in NPS, the Government believe there are strong arguments that the regulation, as well as the directive, should cite a JHA legal base. We also take the view that both of the proposals build on the police and judicial co-operation elements of the Schengen acquis and that our opt-out therefore applies. That said, it is important for me to emphasise that this does not necessarily mean we will opt out. We will need to look at the proposals on their merits. Key factors will be points about subsidiarity and the proportionality of the proposed measures.

I should like to pick up on one or two points made during this debate. As my noble friend Lord Sharkey pointed out, the UK has a strong position in dealing with these issues of NPS. For example, the Misuse of Drugs Act provides a flexible legislative framework to tackle immediate or potential health risks. Of the three main groups, more than 80% are banned in the UK. The latest annual report of the European Monitoring Centre on Drugs and Drug Addiction said that in 2011, there were 49 new drugs, but only 17 were reported more than once in the UK, out of which 14 were already controlled. In 2012, as the noble Lord, Lord Rosser, said, there were 73 new drugs, but only 18 were seen in the UK, all already controlled.

There are a couple of other measures. From 2011, the Home Office set up a response to legal highs, known as the forensic early-warning system. It detects new drugs in the UK through test purchasing and forensic work. It also informs the considerations of the Advisory Council on the Misuse of Drugs and our wider responses. We also have the drugs early-warning system.

Photo of Baroness Meacher Baroness Meacher Crossbench 8:15 pm, 11th November 2013

Will the Minister accept that the UK Border Agency, leading ACPO officers and many other officials and experts in the field will say that even if a new psychoactive substance is banned, that does not mean that children and young people all over the country are not getting it? They are. The UK Border Agency, for example, talked about its great big warehouse with mountains of little packages; it has no idea what is in those packages—just lots and lots of white powders. Those packages are seized from the post, but the UKBA says that it is a drop in the ocean: it is not touching it or scraping at the edge of the thing at all. Will the Minister accept that we do not and cannot control these new psychoactive substances because they are purchased on the web and delivered direct to children’s and young people’s homes? Therefore, we need a more sophisticated approach to this, which is why the European Union has come to the conclusion that we need to think about the low-risk substances—to differentiate, have a proportionate response and so on. It is just not good enough to say, “We have a system; it works”. The fact is that it does not; the Government’s people recognise that it is not working.

Photo of Lord Ahmad of Wimbledon Lord Ahmad of Wimbledon Lords Spokesperson (Department of Business, Innovation and Skills), Lord in Waiting (HM Household) (Whip)

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.

Photo of Lord Hannay of Chiswick Lord Hannay of Chiswick Chair, EU Sub Committee F - Home Affairs, Health and Education

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.

Motion agreed.