The House of Commons decided, yesterday, pursuant to Article
6 of Protocol (No 2) on the Application of the Principles of Subsidiarity and
Proportionality, to send to the Presidents of the Council, the European
Parliament and the Commission a Reasoned Opinion stating that the draft
Regulation and draft Directive on the regulation of new psychoactive substances
does 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. During the debate Bill Cash made the following interventions:

 

The Minister for Crime Prevention (Norman Baker): 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.

(…)

Norman Baker: 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, in my view, would 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.

Mr William Cash (Stone) (Con): 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.

Norman Baker: 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.

(…)

Mr William Cash (Stone) (Con): 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.

Jacob Rees-Mogg (North East Somerset) (Con): 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?

Mr Cash: 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.

Mr Nigel Dodds (Belfast North) (DUP): 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?

Mr Cash: 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.

(…)

Question put and agreed to.

Resolved,

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.