My Lords, the problems of new psychoactive substances are real and perilous. My noble friend Lord Rosser mentioned the number of recorded deaths. It is simple for an organic chemist to synthesise a new psychoactive substance to mimic the effect of a substance that has been banned. We understand that, across Europe, about 250 new psychoactive substances have been introduced in recent years. The Angelus Foundation, which originally proposed the new clause, has counted at least 250 head shops offering to provide such substances on the shopping streets of this country. There are other outlets, as has been mentioned, all of which succeed at the moment in evading existing regulation.
It follows that the buyers of those substances have no information about the composition, toxicity or purity of what they are buying. It is not only from the head shops that those substances can be obtained. Increasingly, they are being bought over the internet. Social networking spreads the news of the arrival of a new substance, and it is not at all uncommon for party invitations, distributed through social networking, to contain links to the suppliers of such substances.
The situation is very dangerous. The substances are cheap to produce and pretty cheap to buy. Sadly, young people are willing to take extraordinary risks with their own health and safety. A survey by Mixmag of club drug users found that no fewer than 25% of respondents said that they were willing to purchase and consume any white powder, unidentified.
The Angelus Foundation is right to have highlighted this issue and to have dedicated itself to improving the education available to people about new psychoactive substances. I pay tribute to Maryon Stewart, who created the Angelus Foundation following the tragic death of her daughter, who had consumed a new psychoactive substance. Maryon Stewart was impressive when she gave evidence to the inquiry which the noble Baroness, Lady Meacher, chaired on this issue.
However, with genuine great respect for the Angelus Foundation, and of course for my noble friends Lady Smith and Lord Rosser, I believe that this proposed new clause is not the right way to approach the problem. Attacking head shops in the way that it envisages might indeed succeed in driving them out of business, but my worry is that it would drive the people who are purchasing these substances into the arms of nastier criminals—into the danger and squalor of engaging
with gang-related street dealers in car parks and alleyways. If they are not already using the internet, and I suspect that most of them will be, it will of course drive them into its seductions and dangers, perhaps particularly those of the dark web. The European Monitoring Centre for Drugs and Drug Addiction reported in its 2013 annual statement that it has identified 693 different internet outlets offering new psychoactive substances for sales. Actually, what I think will happen is that the internet will drive the head shops out of business, just as it has driven record shops and book shops out of business. This is not a measure that would enable us to police the net.
The Angelus Foundation has been candid that its purpose in proposing this new clause is to ban the sale of new psychoactive substances but all the evidence from 50 years of prohibition is that banning substances does not stop trafficking in drugs or people using drugs. In fact, it drives innovation; as one avenue is closed, another is opened. Prohibition has been an engine of crime. It has been counterproductive and has produced appalling consequences.
There are also civil liberties implications in this proposed new clause. Since an earlier version was debated in another place, it has been revised to require a lower standard of proof. The proposition is now that if a court is satisfied merely on the balance of probabilities, and not beyond reasonable doubt, it may make an order against a head shop listing products which appear to trading standards officers to be psychoactive and synthetic, and to have been bought for the purpose of intoxication. If the proprietor is unable to demonstrate that that is not the case, he will be liable to a prison sentence of six months or a level 5 fine. It is inconceivable that in this country we should legislate to imprison people because it appears to an official of the state that such and such is the case and the accused is unable to disprove the allegation. We have not seen legislation like this since the days of the Warsaw Pact in eastern Europe. It would be wrong for us to lower our standard of justice.
I am also bemused to note that the expectation, according to the Angelus Foundation briefing, is that consultation should follow once the legislation is on the statute book. That would be Alice in Wonderland legislation. I had not hitherto seen my noble friend Lady Smith of Basildon as the Red Queen, or my noble friend Lord Rosser as the Red King.
The Intoxicating Substances (Supply) Act 1985 is, I suggest, a bad model for legislation to deal with the problem that we are addressing. It was designed to ban the sale of glue or lighter fluid for purposes of intoxication, but we know what glue and lighter fluid are. The very difficulty is that we do not know what these new psychoactive substances are, so how would the court establish the balance of probabilities? Would it be on the basis of guesswork or on the say-so of a trading standards officer? Justice, like policy, ought to be based on evidence. One of the great difficulties that we are facing is that the infrastructure for forensic testing in this country is entirely inadequate. We have not invested as we needed to do in it. That is a point that we made in the all-party group’s report. The result is that the Misuse of Drugs Act 1971, temporary
class drug orders and the whole apparatus of the Advisory Committee on the Misuse of Drugs are underresourced and unable to deal with a problem of the scale, complexity and pace of change that we have to deal with in respect of new psychoactive substances.
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Therefore, what should we do? I believe that the most promising approach to this very serious problem has been developed in New Zealand. In 2011, the New Zealand Law Commission made recommendations on how to deal with new psychoactive substances. It took the view that universal prohibition would be unacceptable on cultural grounds and inconsistent with the principles of a free society, as well as being impractical. It recommended that a would-be supplier of a new psychoactive substance should have the opportunity, paying for scientific research, to show that the substance would be of limited harm and to seek the approval of a regulatory body to introduce it to the market. They were very specific that no sale should be permitted to minors.
In 2012, the New Zealand Health Minister, Peter Dunne, accepted the recommendations of the New Zealand Law Commission and its Parliament has legislated to create a legally regulated market in synthetic drugs. Having considered the matter, they believed that this was safer than continuing with the dangers of an unregulated market. To date, I understand that 15 new psychoactive substances have been submitted for approval under this process.
I believe that we are driven to conclude that the way to protect our young people and our society as a whole from the dangers of new psychoactive substances is to legalise and regulate them: not the most dangerous of them, but a range of them. This is less dangerous than persisting with a policy of prohibition. The reality is that people are going to get hold of these substances; young people will always experiment, always take risks and always challenge authority. These drugs are dangerous, and it is for that very reason that they ought to be regulated. If a limited range of psychoactive substances—the safer ones—were legally available, with their purity controlled and with trustworthy advice as to their usage, people would be less attracted to taking risks with harder drugs or with unknown, new psychoactive substances. There would be less incentive for producers and retailers to introduce new drugs on to the market.
Of course, as the noble Baroness, Lady Meacher—who is my friend— emphasised, we would need to accompany any such policy with a wholly improved strategy for education and information. To me, it is sad and a real worry that the education department seems to be so largely disengaged from the whole issue of drugs. It lays minimal obligations on schools in respect of drugs education. It shrugs its institutional shoulders in saying that it does not monitor the programmes or resources used by schools in drugs education. We need to do very much better in schools, but the reality is that people who want to understand these drugs will go to websites such as the excellent one created by the Angelus Foundation, whynotfindout.org, or others created by people who are experienced in this field and want to protect people from the harms that drugs may cause, such as DrugScope.
I share the deep alarm that has motivated my noble friends in proposing this new clause and the deep concern of the Angelus Foundation, parents and all of us, but I do not think that this proposed new clause is the right way to go.