I welcome the opportunity to speak. As members will be aware, new psychoactive substances are harmful, both psychologically and physically, and present problems that range from kidney failure to psychosis. NPS were implicated in 132 deaths in Scotland from 2009 to 2013.
I heard what John Finnie said about the term “legal high”, but I am with the minister. The term is best avoided, because in my view it certainly implies that the associated substances are safe. However, we know that they are not safe.
NPS are widely accessible. They can be purchased online or at head shops. As Graeme Pearson said, there are 650 head shops in Europe. They are institutions that show no sign of disappearing from our high streets. As we have heard, there is no law preventing the sale of the goods, which are often labelled and sold as plant food or bath salts, or marked as not fit for human consumption. In addition, NPS are readily available in convenience stores and at music festivals across Scotland and the UK. Nevertheless, we must avoid treating all head shops and music festivals as places that necessarily harbour criminal activity. We need to approach matters on an evidence basis.
Concern in our communities is real. The Courier today reports on a Perth pensioner’s concerns about two local shops and what she perceives as a lack of interest in doing anything about the problem. As members will be aware, NPS are risky and have unpredictable side effects, with many people ending up in hospital.
It is impossible for someone to tell what is in many of the drugs before consumption. In 2013, NPS were stated to be the drugs implicated in five deaths in Scotland but, when mixed with other drugs and alcohol, NPS can be even more fatal. There were 60 deaths in 2013 in which NPS were implicated at least to some extent.
There has been growth in the demand for and supply of NPS. Countries have responded to that trend in three main ways. The first is enforcement. A variety of measures can be used to place NPS under legal control. Those measures include using the European early warning system to identify NPS and place them under control. They also include adding substances to the 1961 UN Single Convention on Narcotic Drugs or the 1971 UN Convention on Psychotropic Substances.
In the UK, the British Government can use the Misuse of Drugs Act 1971 to control substances by issuing a temporary class drug order for up to 12 months. It can then investigate and recommend a classification if there is sufficient evidence to do so. However, a clear problem with that is that drug manufacturers have exploited legal loopholes in control legislation.
The second approach is education, to which Mr Finnie referred. Evidence shows that young people are the most likely to experiment with NPS. In Europe, an estimated 5 per cent of people aged 15 to 25 have done so. In 2012-13, it was estimated that 2.1 per cent of people in Scotland aged between 16 and 24 had used NPS. Therefore, it is crucial that we focus on educating our young people about the health risks that are associated with the substances.
In Scotland, we must continue to support the choices for life initiative and websites such as know the score, to which Graeme Dey referred. Education must underpin any future legislation on NPS and, indeed, NPS policy.
A third approach that some countries have taken is treatment. However, there is very limited information on what constitutes appropriate psychosocial treatment.
The number of new drugs that are available on the market is constantly changing and growing, with more than 300 NPS identified in Europe in 2013. We must seriously consider what we are dealing with and how to approach it, because there is simply no silver-bullet solution.
As members are aware, the UK Government introduced the Psychoactive Substances Bill in the Westminster Parliament in May. As the minister mentioned, the maximum sentence under that bill for people who produce, supply, offer to supply, possess with intent to supply, import or export psychoactive substances will be seven years’ imprisonment. According to the bill, a psychoactive substance is any substance intended for human consumption that
“is capable of producing a psychoactive effect”.
However, there are concerns about the bill, as Alison McInnes mentioned.
The Advisory Council on the Misuse of Drugs has raised concerns about the use of the term “psychoactive substances” in the bill, as it believes that it will have a disproportionately broad scope. Furthermore, the ACMD deemed the bill’s impact assessment to be inappropriate. The assessment was of the impact of new psychoactive substances rather than all psychoactive substances, as laid out in the bill. That makes it problematic to list all possible desirable exemptions under the bill.
Psychoactivity cannot be defined through a biochemical test, so there are clear legal difficulties in proving it in a court of law. The only definitive way of determining psychoactivity is via human experience, which is usually not documented. The UK Government needs to continue to work with the ACMD and others to formulate advice on how to predict that a substance is likely to be psychoactive.
Christine Grahame referred to the use of the common law in Scotland. As a member of the Faculty of Advocates, I commend that—I refer to my entry in the register of interests in that respect. The expert review group’s report referred to the fact that the common law could be used to control NPS, but it also referred to three main areas in which it poses problems. The group said that, to succeed in a prosecution
“for culpable and reckless conduct, evidence must be presented to show that the seller knew, or was reckless as to the fact, that the product was being purchased for human consumption.”
We are well aware of attempts being made to label products as unfit for consumption.
Another issue is that harm, or potential harm, to health requires to be proved. That will require analysis of the substance and expert evidence to establish its harmful effects.
Another matter that the report refers to is that
“it should be noted that the person prosecuted … is likely to be the shop assistant who carries out the sale”
rather than the person who takes the key decisions further up the chain of supply.