Could Europe’s legal high power-grab be a Trojan Horse for drugs reform?

A largely ignored parliamentary debate this evening could herald a sea change in the way we treat drugs – and open the doors to a more liberal, evidence-based approach.

Or it might just be another Brussels power-grab. It's hard to tell.

Parliament will be issuing its response to the European Commission's attempt to secure control of legal highs regulations. The products are being created at a speed which has proved too much for lawmakers and Europe wants to take a joined-up approach.

Peers and MPs will debate the Lords' 'reasoned opinion', which, if they agree, will go off to Europe as the British parliament's response.

If it's a no, Britain will almost certainly opt-out of the measure.

I argued earlier that opting–out would be wise. I'm wary of any power being ceded to Europe and it seems to me that drug policy falls squarely within the remit of national sovereignty. It's unclear how this power-grab meets the principle of subsidiarity- that decisions should be made at the lowest appropriate level.

I'm also wary of detaching drug policy further from what it affects. I want MPs to see the damage of the drug law first-hand in a way the Commission will not. Admittedly, they have been impervious to the decades-old tragedy so far, but one can only hope they find a working backbone.

But there is another side to the policy which those who want drug reform might wish to listen to. It's made most convincingly by Baroness Meacher, who will speak in the Lords debate tonight.

Meacher points to something vital in the Commission proposals which could fundamentally alter the way we regulate drugs: they only want control of regulating supply, not demand.

Under the proposals, the Commission would intervene and capture (or try to – good luck with that) dangerous substances. They are not proposing having control over deciding criminal charges for possession and supply.

The proposal suggests the Commission is focusing on a risk-based approach to drug regulation. The regulation is not aiming for a blanket ban on legal highs, but for an effective, trans-continent system for preventing dangerous new substances reaching potential consumers.

There are caveats aplenty, not least that the UK government would almost certainly respond to a Commission ban on a drug by adding possession or supply of it to the Misuse of Drugs Act.

But if you were very optimistic, you might consider it a potential Trojan Horse for a more rational, humane drugs policy. Evidence-based risk assessments of substances without a consequent criminal penalty on the consumer is a mile away from the demented, fire-and-brimstone, 'Satan-be-gone' attitude of the Home Office.

It could even be a precursor for testing out a new Class D category of the sort just introduced in New Zealand, which requires suppliers to prove their substance is of low harm before making it available on a regulatory basis.

Campaigners are increasingly seeing the battle over legal highs as their best avenue for securing more wide-reaching changes to drug policy. Many – but not all of them – are quite positive about the European moves.

Probably they are being overly optimistic. But drug reformers have become so used to the unshakeable ignorance of successive governments that even a ray of light starts to look like a golden dawn.

Personally, I'd need more than that before I'd be able to happily tolerate handing Europe more powers, but it goes to show that today's debate on drug laws could potentially have far-reaching – and unpredictable – consequences.

Update: When the debate finally took place late on Monday night there was cross-party agreement against the plans to tranfer regulatory control to the European Commission. The Lords and Commons therefore agreed with the 'reasoned opinion' against the move, which will be sent to the European Commission.

During the debate, Lord Hannay of Chiswick, chair of the home affairs, health and education EU sub-committee, said:

The proliferation of new psychoactive substances is influenced by regional, national and international forces. These manifest themselves quite differently in different member states, depending on the speed at which the substances become available and the severity of their impact on public health. In any case, member states have different systems for dealing with harmful drugs in general, and for addressing new psychoactive substances. They require flexibility to respond rapidly to local situations. Therefore, member states are best placed to decide how to respond to the proliferation of these substances in the manner that best fits the circumstances in their jurisdictions.

The question that comes up under subsidiarity is: will action at the European Union level add value and be more effective? That is where these proposals fall down: we do not have a perfect system, but the one that is proposed could lead to quite difficult issues arising if, for example, great harm were found in the UK from one of these substances—if people died from it—and we were not able to take action. That would be damaging both to us in Britain and to the European Union.