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.
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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.