My Lords, I shall also speak to Amendments 109 and 114, which propose that the Bill should be implemented only if an impact assessment of a very similar ban introduced into the Irish Republic in 2011 is undertaken, and a report is issued setting out whether the assessment justifies the commencement of this Bill. The objective against which the Irish Act should be assessed must surely be a reduction in the use of dangerous psychoactive substances and the harms caused by them to the Irish population. I am sure that the Government’s aims in introducing this Bill are along those lines, or something similar, but perhaps the Minister could confirm that point. I hope that will not be a problem.
I certainly believe that the Government’s motives in proposing the Bill are entirely honourable. I have no doubt about that. Ministers want to see a reduction in deaths and injuries to young people resulting from the use of psychoactive substances. I am absolutely on the Government’s side in terms of these aims. I would support the Bill wholeheartedly if the evidence showed that the ban would work as intended. I therefore hope that this proposed new clause will be regarded as entirely uncontroversial, and I propose it as a helpful contribution and not as some wrecking amendment. We are very fortunate to have what must be regarded as a pilot for the Bill right next door in Ireland, where an Act has been in place and operational for four
years. They have had four years of experience since their Act became operational. I therefore propose this clause as a helpful contribution.
The BBC has produced firm evidence that the Irish ban is not working. The EMCDDA also has concerns about the situation in Ireland. It talks about the levels of use of legal highs among young people. The average across the EU for 15 to 24 year-olds increased from 5% to 8% from 2011 to 2014, but the figures for Ireland are 16% in 2011 and 22% in 2014—the highest rate in Europe, despite the blanket ban introduced in 2011. I understand that there is a degree of uncertainty about the precision of those figures, but it would be sensible to be absolutely clear what has happened to use of and damage from these psychoactive substances in Ireland before we move ahead.
The other point is what has happened to the levels or numbers of deaths and serious injuries in Ireland following the introduction of that Act. Whatever the figures, we need to take very seriously the comments of the deputy head of the Drugs and Organised Crime Bureau in Ireland who, as I understand it, has said that the ban has failed and that they have not been able to operationalise it because of definitional problems. They have not got off the starting blocks, let alone explored whether the ban might work in other respects. As I mentioned at Second Reading, the experience in Poland of a blanket ban on psychoactive substances has coincided with an increase, rather than a decrease, in the harm to young people. A concern in Ireland, identified by the BBC, has been about whether they can determine if a particular substance is psychoactive or not. The noble Baroness, Lady Bakewell, mentioned this earlier. As a result of that problem, it seems that Ireland is considering moving back to its Misuse of Drugs Act. I find that profoundly distressing because of my absolute lack of respect for our Misuse of Drugs Act, particularly in relation to consumption by children and young people and their criminalisation.
The Bill also seems to have definitional problems which could undermine it catastrophically. For example, Clause 2(1) defines a psychoactive substance as one that is “not an exempted substance”. For the latter, we turn to Clause 3 and Schedule 1. We see that alcohol, nicotine products and caffeine are exempted, but only if they do not contain a psychoactive substance. However, these are psychoactive substances; how can they not contain a psychoactive substance? Maybe the Bill intends to say that substances such as alcohol should not have any other psychoactive substance within them. If so, the Bill needs to make that clear. How on earth can we justify exempting a substance such as alcohol, which is profoundly psychoactive and dangerous, just because it might have some relatively marginal other psychoactive substance within it?
This confusion perhaps illustrates the utter nonsense—a word which I use very carefully, having thought about it for a long time first—which runs through our drug laws generally, of exempting dangerous psychoactive substances while banning much safer ones. Some noble Lords have referred to cannabis as a dangerous substance. I would completely agree that skunk, high THC cannabis, is dangerous but there are other forms which are
absolutely not. Professor Curran is clear about that and certain forms of cannabis can, indeed, be good for you.
Another definitional problem relates to food. Apparently, a food is a substance which is, “ordinarily consumed as food” and would be exempt. However, what about a food containing a psychoactive substance which is only consumed by rich people or an ethnic minority and not ordinarily consumed as food? Rudi Fortson QC raised this and many other issues with me and questioned how a court could decide on whether a food was a food or not, depending on who ate it. There is a genuine problem there. From paragraph 10 of Schedule 1, it seems that a food is exempt if it contains a psychoactive substance which occurs naturally in the product and which is authorised by an EU instrument. Have the Government thought through all the foods in which a psychoactive substance—using the Government’s sweeping definition—naturally subsists but which might not be covered by an EU instrument? There may well be eastern, or other different, foods which would not be covered. For example, do flavourings and spices, which are obtained by a process of extraction and widely used in food, satisfy the expression “naturally occurring” in the substance?
5.45 pm
Mr Fortson argues that the definition of a psychoactive substance in Clause 2(2) is far too wide. It includes all substances which affect the person’s mental functioning or emotional state. We know that Ireland has been unable to apply its blanket ban because of definitional problems. Will the Minister take this issue back and explore the potential for problems in the Bill? Mr Fortson provides other examples of such problems but I do not want to test the patience of the House too much so I will send some of them to the Minister for his consideration. I have, perhaps, said enough to justify asking the Minister whether he will revisit the issue of the definition of a psychoactive substance.
On a separate issue, we have evidence that banning substances does not generally lead to a drop in their use. I am grateful to Release and Transform for their briefing which pointed out that, in the year following the ban on the NPS mephedrone, use of the drug increased from 27% to 41%. Use of mephedrone only began to decrease once the availability and purity of cocaine and ecstasy were restored. In other words, the overall use of comparable drugs is not, apparently, affected by bans and changes in circumstances. Young people simply switched from one to another depending on purity and availability.
There is no reason to believe that this ban will lead to an overall drop in the use of dangerous psychoactive substances. I am sure the Minister and noble Lords would agree that is the essence of what we are trying to drive at. The Home Affairs Select Committee concluded, following their review of the drug policies of 11 countries, including pretty severe ones such as Sweden and more relaxed ones such as the Netherlands, that the toughness of drug policy does not appear to have a significant influence over the use of controlled drugs. Policy needs to be guided by this fundamental, evidence-based truth.
The EMCDDA has warned that a blanket ban will push NPS into the grey marketplace, that is, online and on to the darknet—whatever that is; I do not fully appreciate these things. The ban will also drive young people back to the drug dealers where they will buy traditional controlled drugs. I am sure the Minister will agree that both drug dealers and the darknet are even more dangerous sources of drugs than head shops. I would be grateful if the Minister will comment on this point in his response. He referred earlier to the dangers of people going to head shops to get drugs. We will talk about this later, but I want to make the point that head shops are businesses which want to make profits. Therefore, they are going to sell psychoactive substances but not dangerous ones. The web and back-street dealers are where the dangerous stuff is purchased. Much as we do not like head shops, they can be licensed and controlled by trading standards and the police. If that is done, and done well, I hope the Minister might think about whether there is some way to retain the market which exists in visible premises rather than driving it into the back streets and on to the web. I sincerely believe that would be a very dangerous move.
I end by referring to the European Commission’s regulation on new psychoactive substances, which was proposed on 17 September 2013 and passed by the European Parliament on 17 April. We need to learn from the work done by the European Commission in producing that regulation. In proposing this new clause, I am not suggesting we should have no legislative response to new psychoactive substances—I would not take that view at all—but we need evidence-based policy designed to reduce the harms caused by the risk-taking behaviour of too many young people. After all, as I say, these young people do not want to kill themselves or harm themselves. If we give them the right environment and the right information, we can keep them a lot safer than we are doing today or than we will do under the Bill. I beg to move.