At the invitation of the noble Lord, Lord Howarth, I will tell him why we disagree with him. He is right to say that in the previous groups we explored certain elements of common ground and were willing to look at them. But here, in essence, we go to the heart of the difference—a philosophical difference—between the two sides. On the one hand, does one go down the line of leaving the door open—in the right reverend Prelate’s helpful phrase, the “yes, but” approach? Or, do you say, “No. We have tried that. It is a blanket ban. We have been very clear about that”. Do you go down that route?
The expert panel wrestled with this. It was not an easy call. It set out opportunities for creating a regulatory model and looked at the New Zealand model very carefully indeed. The panel saw that there were some opportunities and good standards could be achieved—all of the points the noble Lord mentioned. But the panel said that the problem with creating a regulatory model is that it does nothing about the availability of new psychoactive substances, and use of “approved” NPS may increase, with “low risk” considered “safe” by the public. There could be the possibility that approved NPS may act as a gateway to illicit drugs. There may be a risk that unregulated drugs could be passed off as being regulated. The model could be costly and timely to implement, including establishing a regulatory body. It would not be a simple system to enforce, including the need for substance testing and test purchases. It could be difficult to prove the long-term safety of a product before it is authorised. It would be a challenge to define “low risk” and it could be a legal risk if “low-risk” products actually caused long-term harms.
Having weighed up all those points, the panel came down on the side of a blanket ban, saying that a regulatory model would not provide a proportionate response, as the infrastructure required to support the approach following primary legislation would take 12 to 18 months to develop, based on New Zealand estimates, and a mechanism for controlling NPS that were not “low risk” would still be needed, which could lead to confusing messages about NPS overall.
The regulatory power in Clause 3 has been designed to provide clarity so that there is no doubt as to our position on new psychoactive substances—they are banned—and to future-proof the list of exempted substances and ensure that substances such as medicinal products are not inadvertently caught by a blanket ban provided for in the Bill.
Schedule 1 contains broad categories of established substances and products that we want to exclude from this regime—mostly because they are already regulated by other legislation, not because the Government consider them harm free, as is the case with smoking and alcohol. Certainly the Government do not go around with a cavalier attitude. They spend a great deal of time and employ various taxation and duty regimes to dissuade people from consuming either in excess. The Home Office expert panel considered the merits of a regulatory regime as part of their examination of how best to enhance our legislative response to new psychoactive substances. In looking at the opportunities and risks presented by such an approach, the panel considered the regulatory regime adopted in New Zealand. I will not deny that the expert panel identified some opportunities inherent in such an approach. I have touched on some of those.
Effectively, these amendments challenge what I would call an essential principle of the Bill before us and undermine the essence of the Government’s approach, which has been to listen to the views of the expert panel, consider the evidence and come forward with legislation. That is what we have done. These amendments would challenge the very heart of that principle. For that reason, I am afraid, the Government cannot support them. I ask the noble Lord to consider withdrawing them.