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Psychoactive Substances

Volume 570: debated on Monday 11 November 2013

[Relevant Document: 10th Report from the European Scrutiny Committee, HC 83-xviii.]

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.

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.

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.

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?

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.

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?

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.

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.

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.

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.

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.

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?

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.

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?

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.

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.

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?

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.

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.

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.

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).

Is the answer to the hon. Lady’s question that we are seeking to pass this measure today to demonstrate our expertise in and judgment on these various substances, those that are emerging and those that are well known such as khat—I have seen the devastation that causes right across north, west and east Africa—which is finding its way to these shores? Precisely for those reasons we want to rely on our expertise and judgment and get a system in place in time, rather than relying on the lowest common denominator from Europe.

If the right hon. Gentleman had been listening, he would know I was making the case for why I am questioning whether the procedure in this proposal would actually work. I want the Minister to respond to the Government’s advice on the point about the effect that such a proposal would have on any determination this country could make about its own classification.

The hon. Lady rightly raises the question of our making our own determinations, which I hope she will agree should be evidence based. Has she seen the advice from the Advisory Council on the Misuse of Drugs that khat should not be controlled under the Misuse of Drugs Act 1971, and will the official Opposition follow that evidence-based line when it comes to a vote in the Statutory Instrument Committee?

The hon. Gentleman should perhaps look to his own coalition Government, who decided not to follow the advice of the ACMD. As a Member of one of the two ruling coalition parties, perhaps he should question his own Ministers on that point.

I am going to move on because I do not want to get sidetracked into a debate on khat as that is not the purpose of this debate. Perhaps the hon. Gentleman could ask his Ministers about their position as they are part of the Government who are not using—[Interruption.] Well, I have made my position clear. He should look to his own Ministers. The Liberal Democrats cannot have it all ways—I know they try, but perhaps on this they should look to their Liberal Democrat Minister in the Home Office.

It would be helpful if the Minister set out clearly his position on classification. EU co-operation on drugs is not new, but previously the agreement was that drugs, as recognised by the UN agreement on narcotics, needed to be controlled and the trafficking of drugs tackled. The proposals we are discussing go far further than that. Drugs that would be deemed low risk will not be restricted; those deemed a moderate risk will be prohibited from the consumer market; and the most dangerous drugs will be prohibited altogether, with a possible exception for medical use. I should make it clear that the Opposition do not want to cede powers on drug classification to the EU, and I press the Minister on the Government’s legal advice on how the adoption of the directive could affect the UK Government’s position. The Home Office explanatory memorandum states:

“we do not consider that the measure complies with the principle of proportionality. In particular, the effect of Article 4 of the draft Regulation fetters the UK from adopting more stringent measures to control NPS. In our view, it is vital for the UK, guided as necessary by EU expertise in NPS but not bound by it, to have the final say when deciding whether to exceed any minimum standards mandated by the EU.”

Although the Opposition concur generally with that, it would be helpful if the Minister explained exactly what the Government mean by “fetters”. Do the Government believe that article 4 would prevent them from placing strong prohibitions on a substance?

When we turn to articles 3 and 4, we see that the Commission has placed a strong emphasis on free trade, as I have said. Article 3, on free movement, states:

“New psychoactive substances and mixtures shall move freely in the Union for commercial and industrial use”.

Article 4, on the prevention of barriers to free movement, states that, in so far as

“the Union has not adopted measures to subject a new psychoactive substance to market restriction under this Regulation, Member States may adopt…regulations”.

Is it the Government’s view that member states could impose restrictions only before the EU has classified a drug? Would the Commission classifying a drug as low risk, and therefore not restricting sale in any way, count as having adopted a measure, therefore precluding further action from member states? For its part, the Commission thinks not—it argues that in its impact assessment.

The hon. Lady makes a detailed and powerful argument. I am gathering that she supports generally what the Government are doing. Many Government Members would like to know that the Opposition will not vote against the motion tonight.

I have a few more pages of notes, and then all will be revealed. The hon. Gentleman will have picked up that the Opposition have a number of questions on whether the proposal would be helpful in dealing with the problem of legal highs.

The impact assessment states:

“Member States would be able to apply national measures before the introduction of any EU-level measure in…respect of the provisions of Directive 98/34/EC, and to go further than what is foreseen by EU measures in full respect of the provisions of Article 114”.

Will the Minister respond to that explanation on that point?

One point made strongly by the European Scrutiny Committee in the other place was that national states are more competent than the EU to make decisions because specific factors might influence the dangers of each drug in different national contexts. The Opposition agree with that assessment. One particular issue is what substances are mixed with—one psychoactive substance could form part of a compound street drug that is far more dangerous. That is a problem for the UK, which, as I have said, has Europe’s largest legal highs market. That draws attention to a failing of the Government’s response to legal highs—the failure to address the emergence of regional drugs, meaning drugs going under a generic street name, but often containing a variety of different substances that become popular in a certain region. Sadly, we have seen repeatedly over a number of years that batches of such drugs can contain a dangerous substance, often with lethal consequences.

Because the Opposition believe that member states are best placed to determine the level of harm posed by a new psychoactive substance, we do not believe that the proposal from the EU Commission is either necessary or proportionate. Therefore, we agree with the reasoned opinion put by the European Scrutiny Committee and supported by the Government. However, even if the House and the other place were to reject the Commission’s proposals—the other place has, I believe, already rejected the proposals—it should not be taken as an excuse by this Eurosceptic Government to opt out of EU co-operation on investigating and assessing new psychoactive substances. The Opposition see a clear need for EU-wide co-operation on a laboratory to research new substances without giving it the power to classify substances.

Currently, hundreds of new substances arrive on the UK market. The Government’s temporary banning orders have been used on only three occasions. I therefore dispute what the Minister has said about taking swift action. There are two reasons for this: a failure by Ministers to refer substances to the Advisory Council on the Misuse of Drugs and the capabilities of the advisory council. It has said that it can assess only two or three substances a year. It is clear that it will never be able to keep up with the number of new drugs on the market, so the UK Drug Policy Commission and others called for a joint EU-wide laboratory to provide advice and information to relevant authorities. We support that. The European Monitoring Centre for Drugs and Drug Addiction has long produced lists of new substances that have always been far ahead of the Home Office’s forensic early warning system. I have repeatedly asked Ministers why substances that are identified by the EMCDDA as being on sale in the UK are not automatically added to the forensic early warning system. This goes back to the Minister’s intervention on the numbers. The EMCDDA numbers are far higher than the Home Office numbers, and that needs to be looked at. Perhaps the Minister will finally be able to explain why there is such a disparity between the two lists.

In conclusion, the Opposition are in agreement with both the European Scrutiny Committee and the Government that the EU Commission proposal is neither necessary nor desirable. We would like the Government to be more precise about the consequences of adopting the directive on the UK’s current system of drug regulation. We do not want the Government to use tonight’s debate as an excuse to avoid greater EU co-operation to assess the dangers posed by legal highs, particularly to our young people.

We have had an interesting exchange of views, resulting in the Government and the Opposition agreeing with the European Scrutiny Committee’s assessment that there is a breach of the principle of subsidiarity in these matters. There are two issues: the draft regulation and the draft directive, both of which have already been described, so there is no need for me to go into them in detail.

The draft regulation would fetter the flexibility that member states currently enjoy to determine the level of risk associated with a new psychoactive substance, and to implement appropriate national control measures. The draft directive, on the other hand, would require member states to introduce criminal sanctions for a new psychoactive substance deemed by the Commission to present a severe health, social and safety risk.

The draft reasoned opinion concludes that the proposed legislation breaches the principle of subsidiarity simply because it would fetter member states’ action to an unacceptable degree. It highlighted the following concerns: the absence of reliable market information on the volume of trade in new psychoactive substances for legitimate rather than recreational use; different cultural and societal attitudes towards the regulation of drugs and new psychoactive substances and the need to accommodate different regulatory approaches at national level; the limited scope for unilateral action by a member state when faced with evidence of social or health harms which exceed the level of risk identified by the Commission when implementing market restrictions; and insufficient evidence of disruption to legitimate trade, or displacement of the harmful effects of the new psychoactive substances, to warrant market intervention on the scale envisaged in the proposed measures or the imposition of additional constraints on members states’ freedom of action.

We have had a number of successes in the European Scrutiny Committee’s proposals for reasoned opinions: we debated the proposal for a European prosecutor’s office and last week it was withdrawn by the Commission, and the Monti II provision in relation to small and medium-sized businesses. We are making some progress. The reality, however, is that we still have to get a substantial number of member states to agree to our proposals on the reasoned opinion. We have a decent track record and will continue to argue the case on the basis of analysis, logic and common sense. Having said that, I do not think there is anything I need to do to repeat the remarks that have already been made, because the Government, the Opposition and the ESC all agree.

From experience, does my hon. Friend agree that it is usually the most dangerous state of affairs when there is a consensus between my hon. Friend, Her Majesty’s Government and Her Majesty’s loyal Opposition?

I would certainly agree that it is extremely dangerous when there is collusion between the two Front-Bench teams, but when the European Scrutiny Committee comes into the equation, I think it is a virtuous circle. I hope that that helps my hon. Friend.

Does the hon. Gentleman agree that when the Government, the Opposition and the European Scrutiny Committee agree, there should be no question but that this proposal will go absolutely nowhere in terms of being implemented at any time in this country, and that we can be absolutely assured of that?

We can be sure that our analysis will bear scrutiny and that the European Commission is getting used to the idea that when the UK Parliament is agreed about something, we are not going to give in. I think I will conclude my remarks on that rather important point.

It must be rather galling for the most European of all parliamentarians, the Minister, having to be dissing the EU and its great works in one of his first outings. I was surprised, however, that he did not take more credit for the work that he, his predecessor, the hon. Member for Taunton Deane (Mr Browne), and his Department have done in encouraging this EU proposal. Of course, it was a Liberal Democrat who predecessed him—

I am entirely unhappy about the use of the word “dissing”, but I think “predecessed” demands further investigation. I would be grateful if the hon. Gentleman could clarify both those terms.

It is a late hour and I have had no substances of any height during the day, but I have been building up my adrenalin, looking forward to this debate.

I have been monitoring what the Home Office has been doing in this field. Whenever I speak to people from other countries, they keep telling me how the British Government—this coalition Government—are out there seeking their views and trying to learn from them. Portugal is one of the leaders of the move towards drug legalisation across the world, but the Czech Republic is following—that makes two EU states—and the European monitoring body on drugs is based in Lisbon.

I would like to make my point first, so that the hon. Gentleman can understand it in its fullness.

It is this Government who have been going and listening to the legalisers. I suspect that the European Commission is making an attempt over time to pull together these strands, backed by several senior police officers in this country, so that they can evaporate the problem of drugs and say that crime will reduce, because if we legalise lots of things and do not criminalise others, we will not need to spend as much money on policing, because crime will be falling all the time. What is happening with this Government—it is why the Minister has encouraged this proposal from the EU and now wishes to demolish it—is an attempt to block legal highs being made into illegal highs so that crime does not go up, because they are not providing the police in areas like mine that are disproportionately impacted by the current legal highs.

I carried out my own public inquiry in Worksop town hall this January into the question of legal highs, asking the young people, the police, the health service and others what was going on. It was interesting to find out that it was not only young people who were taking these substances. It was also middle-aged people, although not perhaps elderly people. It was the people who participate in what the Government call the night-time economy and what I would call pubs with late licences. People are tanking up at home on cheap alcohol then going out to the pubs and nightclubs and taking these substances. The owners of the pubs and clubs complained to my inquiry that their biggest problem was that people were taking cheap pills and other highs instead of buying alcohol.

By the way, allowing pubs to have late licences was the worst error of the last Labour Government. My biggest error in this place was not to speak out and try to alter that policy as it was going through because applying a city solution to areas like mine was totally inappropriate. One pub in my area is open till 5 in the morning, but nobody is drinking beer or spirits; they are allegedly—according to all the information I have—taking all sorts of substances that the Government will not deem illegal because they do not want the police to arrest people, though the police are not there anyway, because the Government have cut their numbers; and there are not even any police cells left in my area to put people in, and the police community support officers are about to take over neighbourhood policing. But nobody is being arrested for using legal highs in the pubs, and of course they are not because the highs are legal. This is part of Home Office policy.

I continue to be dazzled by the hon. Gentleman’s linguistic dexterity, which is reaching almost Prescottian heights, but will he tell us whether this great experiment in constructing a parliamentary speech out of a single sentence has the possibility of reaching a full stop?

I would have hoped that the hon. Gentleman was listening.

For two days, I got together young people, the police and the health service in my area, along with my expert panel which 10 years ago looked at the problem of heroin and this time looked at legal highs, among other problems. We analysed more than 400 submissions to find out exactly what was happening. We went out and asked the users of the illegal drugs what was happening with the legal highs. I would have thought that the hon. Gentleman would like to be informed about this, because his close coalition ally the Minister, and the Minister’s predecessor, have not got a clue what is going on with legal highs in this country. Some of the chief constables are increasingly saying, “Let’s legalise drugs; let’s not go any further with legal highs, so that we can get crime down.”

The European Union is heading in exactly the same direction. That is why the Czech Republic has just backed the same approach as Portugal has taken. The European monitoring body’s research is nonsense, but it is quoted by the Minister and others in the Government all the time as the factual basis for what is happening around Europe. But the statistics on this—as on so many other things—that are compiled around Europe simply do not compare with what is going on here. They do not compare at all.

In this country, we have a growing problem with legal highs. The problem is that people are taking cheap pills instead of spending money on alcohol, and the real problem with that is that they do not know what the pills are. People are taking things that give them a stimulus when they go out, but the compounds could contain anything, and on rare occasions there are tragic consequences. The bigger problem is that this is building up an atmosphere of semi-legality. People are taking things that ought to be illegal because they are dangerous, and they have no idea what they contain. They take them presuming and hoping that they are fine, and the Government are not prepared to put a system in place to deal with—

Order. I am struggling to understand how the hon. Gentleman is going to relate all this to subsidiarity. [Interruption.] Thank you; I do not need prompting. We are not having a general debate here. He has referred to Europe, and I hope that he is going to refer to the question of subsidiarity mentioned in the reasoned opinion.

Thank you for your guidance, Madam Deputy Speaker. I am constructing an argument to demonstrate precisely how the European Union has got itself into this absurd situation of what might be called a caterpillar race between the European Commission and the British Government over who can be the slowest to deal with the problem of legal highs. Frankly, my constituents’ problem is that this Government are doing nothing—

I dare not digress.

Like the Government, the European Union is doing nothing other than create an excuse for allowing the growth of legal highs without criminal sanctions. Some European Union countries think exactly the same way as this Government think. They are saying, “The more we create illegal drugs, the more criminality there will be; the less we spend on police, the more that criminality will grow, and the public will not like that.” That is the problem that the Minister should be addressing. I put it to him that he should go back to look at the origins of this proposal and withdraw the Government’s policy of going around these legalising countries to see what we can learn from them. Instead, he should be looking at the problems in areas like mine.

I tried to intervene earlier on this point. The hon. Gentleman keeps talking about countries like Portugal as though they are legalising drugs. Does he not realise that Portugal has not legalised drugs and has no plans to legalise them? What it has done is to decriminalise them—a huge difference, which the hon. Gentleman should try to understand.

I am familiar with the system in Portugal, having met the Portuguese and seen the myths created by their policy. Yes, the nuances of language are important for the law, but I am talking about the objective of allowing police cuts in areas like mine, which are the areas with the biggest problem with legal highs. This is part of a deliberate Government strategy. I put it to the Minister that as well as taking this back to the European Union, he should tell it that it has no remit in this area, no expertise to give and no valid data. He should stop relying on EU statistics and the EU agenda in setting Government policy. He should listen to the good people of Bassetlaw who say, “We don’t want legal highs in our clubs, pubs and streets; we want systems to make them illegal, and then we want the police in place to prosecute on the basis of them.”

Has the hon. Gentleman not dissed himself by his previous argument? He suggests that we need to go much faster to get the impact that he seeks in order to respond to his Bassetlaw constituents who have given him all this evidence, but this is the only method by which we can do it at any pace that is going to meet the need.

The right hon. Gentleman is half right. If we cede it to the European Union, its caterpillar will go even more slowly in reaching the lettuce than our caterpillar. My concern is that our caterpillar is spending so much time in the European Union debating these matters that the lettuce always avoids him.

I am so grateful to the hon. Gentleman for giving way in his brilliant speech, but I have a worry that he is confusing caterpillars with snails. It is snails that are notorious for their slowness, not caterpillars.

I implore the Minister to reject this European Union attempt further to weaken our approach and to resist what his predecessor did, which was to go around these EU countries looking for ways to weaken our drug laws—precisely what this Government are sneakily doing in order to justify cuts in policing and the closing of police cells in areas like Bassetlaw.

I shall try to be relatively brief and to resist the temptation to discuss the speech of the hon. Member for Bassetlaw (John Mann). I think that it was the first speech that I have heard in which someone has objected to the concept of talking to other people to identify good practice, which is surely something that most of us would want to do.

It is clear that a huge problem is posed by new psychoactive substances. As that has been reiterated so many times, I shall not go into it in detail now, but I will say that the rise in the number of such substances is partly our fault, because our prohibition-led policy has made it possible to be sentenced to years in jail for possessing one tablet of known harm, but to receive no penalty for possessing something else of unknown harm, which could be far more serious.

We know that some of the new substances are more harmful than substances that we have already controlled. Our use of the term “legal highs” suggests to the public that it is all right to take such substances, because it implies that they are safer than others. If ecstasy is a class A drug and another substance is legal, that suggests that we have made an assessment of the risk, which is deeply misleading. It flies in the face of any evidence-based policy, but it also flies in the face of what we all want to do, which is to reduce the harms from drug use. All substances of this kind, whether legal or illegal, have harms, and we must try to reduce those harms.

I agree with the Minister that the European proposal is not the right one to adopt, but what is the correct way in which to deal with all these substances? On the general subject, I follow the Portuguese line. I think that decriminalisation has worked very well there. Only those on the far right in politics opposed it originally, and now it is supported by people throughout the political spectrum and by the police themselves. The Home Affairs Committee conducted a detailed study of all the issues, and that was our very clear finding.

What is the solution? What is not the solution is simply to ban everything that is psychoactive. I suspect that that is what the hon. Member for Bassetlaw is proposing, and it is certainly what the hon. Member for Kingston upon Hull North (Diana Johnson) proposed in a new clause to the Anti-social Behaviour, Crime and Policing Bill, which would have included making the sale of caffeine, including coffee, illegal. I do not think that that was the intention of the new clause, but it illustrates the problems that arise when we try to ban things. Coffee is a psychoactive substance. I will not ask how many Members who are present have consumed some of that psychoactive substance today, but quite a number will have done so. That illustrates the danger of being extremist and banning everything.

What we should do is adopt an alternative to the European proposal, and emulate, for example, what has been done in New Zealand. When the New Zealand Government asked the New Zealand Law Commission to look at their drug laws—the Select Committee report goes into this in much more detail—the commission proposed the establishment of an independent regulatory authority to test substances, so that manufacturers and importers would have to demonstrate their safety. I am pleased to see that other members of the Select Committee are present. We proposed that urgent action should be taken, based on existing trading standards and consumer protection legislation, to deal with the sale of untested substances. The onus should be on the person selling a substance to check that it is safe. That is the right way to tackle the huge number of new psychoactive substances.

Perhaps I could correct the record. The new clause to which the hon. Gentleman referred would have dealt with exactly the problem that he has raised by building on the work that had already been done in relation to young people who were sniffing glue. I believe that it was a Conservative Government who had previously legislated to put the onus on shopkeepers who sold substances that could be used for that purpose, and the new clause was intended to put the onus on the seller in the same way. I take exception to the way in which he has described its aims.

New clause 2 stated:

“It is an offence for a person to supply, or offer to supply, a psychoactive substance, including but not restricted to…a powder…a pill…a liquid; or…a herbal substance with the appearance of cannabis which he knows, or has reasonable cause to believe, to be so acting, that the substance is likely to be consumed by a person for the purpose of causing intoxication.”

That would make it illegal to sell coffee. It is perfectly possible to be intoxicated by caffeine, which is an addictive substance. The hon. Lady is right to say that the new clause deals only with the supply of substances, but, although some of us may have concerns about Starbucks paying taxes or otherwise, I think that making the company illegal would be going too far.

Roughly one in five of the notified new psychoactive substances are used for legitimate purposes in industry or research, or as active substances in medicines. We must be extremely careful about how we proceed, because a global ban would give rise to all sorts of problems.

We have touched on the Home Secretary’s decision to ban khat. She has tabled a statutory instrument to do so. That was her decision; it was not a jointly signed off one, and I was very disappointed by it.

I was also very disappointed and surprised that the shadow Minister had no idea what her own policy was. [Interruption.] If she would like to say what it is, I will be happy to take an intervention. Apparently, she does not wish to do so.

The Government have twice asked the Advisory Council on the Misuse of Drugs what to do about khat. This is a classic example of a legal high that exists and would be covered by this provision, and where we have to work out what to do. The ACMD said that

“the evidence of harms associated with the use of khat is insufficient to justify control and it would be inappropriate and disproportionate to classify khat under the Misuse of Drugs Act 1971.”

It also said that

“the evidence shows that khat has no direct causal links to adverse medical effects”.

It went on to say there is no robust evidence of a causal link between khat consumption and any of the social harms indicated, and no evidence of it being connected with organised criminal behaviour.

I suspect I will be one of the briefest speakers in this debate, not counting interventions. That will have to do as a working definition, and I have almost concluded.

Not only is it clear from the evidence that banning khat will be harmful and will not solve the problem, but it would also cost this country £12.8 million a year in the loss of the VAT that is currently being paid on the legal import of khat, with a total cost of £150 million, according to the Government’s own estimates. This is an example of a legal high that the Home Secretary is proposing to ban, and I intend to vote against that when we have the opportunity to do so, and it would be fantastic if the Labour party decided to join us. That example shows why this is such a hard issue.

I agree with the Minister that we should make it clear to the EU that we should make our own decisions, but it is also important that those decisions are the right ones.

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.

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?

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.


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.