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unable to provide an adequate response to this growing challenge, because it does not enable harmful substances to be withdrawn from the market quickly enough, or provide a response proportionate to the level of risk involved.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.