Documents considered by the Committee on 26 March 2014 - European Scrutiny Committee Contents


7 Regulation of new psychoactive substances

(a)

(35324)

13857/13

+ ADDs 1-2

COM(13) 619

(b)

(35325)

13865/13

+ ADDs 1-2

COM(13) 618


Draft Regulation on new psychoactive substances




Draft Directive amending Framework Decision 2004/575/JHA of 25 October 2004 laying down minimum provisions on the constituent elements of criminal acts and penalties in the field of illicit drug trafficking as regards the definition of drug

Legal base(a)  Article 114 TFEU; co-decision; QMV

(b)  Article 83(1) TFEU; co-decision; QMV

DepartmentHome Office
Basis of considerationMinister's letter of 19 March 2014
Previous Committee ReportsHC 83-xxviii (2013-14), chapter 7 (22 January 2014);

HC 83-xxiii (2013-14), chapter 11 (4 December 2013); HC 83-xviii (2013-14), chapter 8 (23 October 2013)

Discussion in CouncilNo date set
Committee's assessmentLegally and politically important
Committee's decisionNot cleared; further information requested

Background and previous scrutiny

7.1 An existing mechanism, set out in a 2005 Council Decision, provides for the exchange of information on new psychoactive substances, risk assessments, and the introduction of EU-wide control measures and criminal penalties. Document (a) — the draft Regulation — would repeal and replace the 2005 Council Decision and establish a new framework for EU-wide regulation of new psychoactive substances which present moderate or severe health, social and safety risks, whilst providing for the free circulation of those which present low, or no, risks. Document (b) — the draft Directive — is the instrument through which Member States would implement criminal sanctions for the highest risk substances. Our earlier Reports provide a detailed overview of the Commission's proposals and the Government's position.[30]

7.2 The draft Directive is a Title V (EU criminal law) measure and is subject to the UK's Title V opt-in Protocol. The draft Regulation cites an internal market legal base, largely on the strength of the Commission's assertion that there is a significant legitimate trade in new psychoactive substances for commercial, medicinal or research purposes. The Government disputes this, describing the trade as "overwhelmingly illicit". It considers that the draft Regulation (like the draft Directive) should cite a Title V criminal law legal base. It also argues that both proposals build on provisions of the 1990 Schengen Implementing Convention and are therefore subject to the UK's Schengen opt-out Protocol. The Government confirmed in January 2014 that it had notified the Council of its decision to opt out of the draft Regulation and the draft Directive.[31]

7.3 When we last considered the proposals, at our meeting on 22 January, we noted that the Government had sought to rely on the opt-out rights conferred on the UK under the Schengen Protocol. We suggested that this course of action was difficult to reconcile with the Minister's statement that:

    "at present we are the only Member State to consider the measures to be Schengen building"

and

    "we will of course continue to focus on the Title V nature of the measure [the draft Regulation] on which we share common ground with a number of other Member States."[32]

7.4 We reiterated our consistently-held view that the UK cannot rely on its Title V opt-in Protocol in relation to a measure, such as the draft Regulation, which does not cite a Title V legal base, and added:

    "It must also follow that the UK cannot rely on its Schengen opt-out Protocol in relation to a proposal which does not state that it is a Schengen-building measure or which is not accepted as such by other Member States."[33]

7.5 We noted that, under the terms of the Schengen Protocol, once the Government has formally notified the Council of its decision to opt out, the usual decision making procedures must be suspended until the Council has decided whether, and to what extent, the UK should remain bound by the existing regulatory framework for new psychoactive substances (set out in a 2005 Council Decision). We asked the Government to report back to us on whether and how these provisions of the Schengen Protocol were being applied, given that no other Member State so far accepts that the Schengen Protocol is in play. We also asked the Government whether it considered it to be desirable and/or feasible for the UK to remain bound by the 2005 Decision without also participating in the draft Regulation.

The Minister's letter of 19 March 2014

7.6 The Minister for Crime Prevention (Norman Baker) addresses the application of the Schengen Protocol procedures to the draft Regulation:

    "As the Council and Commission do not recognise this measure as building on the Schengen acquis, the provisions of the Protocol triggered by the UK's opt-out decision have not been followed. Nevertheless, we do not consider the Schengen Protocol to be deprived of effect simply by virtue of the draft Regulation's failure to recognise that it builds upon the Schengen acquis. Other Member States do, of course, share many of our concerns about the scope of the measure, legal basis, and its impact on national ability to control harmful drugs, and we expect the measure to evolve significantly before adoption. I am encouraged by the fact that the LIBE committee of the European Parliament has also expressed its view that Member States should be able to take measures of a calibre different to those decided by EU Commission."

7.7 The Minister adds that the 2005 Decision (which the draft Regulation would repeal and replace) is included in the list of pre-Lisbon police and criminal justice measures subject to the UK's 2014 block opt-out. As the Government does not propose to seek to rejoin the 2005 Decision, it will cease to apply to the UK with effect from 1 December 2014.

7.8 The Minister concludes:

    "Whilst the first analysis of the draft Regulation has nearly concluded in Brussels, it is clear that several Member States continue to have concerns on matters of principle."

7.9 He expects negotiations to continue in the Horizontal Drugs Group on the basis of a Greek Presidency discussion paper and undertakes to provide further progress reports.

Conclusion

7.10 We note the Minister's view that the Schengen Protocol is not "deprived of effect simply by virtue of the draft Regulation's failure to recognise that it builds upon the Schengen acquis". Given that the Council and the Commission do not accept that the Protocol applies, and are not applying the procedures set out in Article 5 following notification of the UK's "opt-out", we ask the Minister to explain what practical utility and effect the Protocol has in this case.

7.11 As matters stand, we assume that the UK will be automatically bound by the draft Regulation unless it is amended to cite a Title V legal base, thereby bringing the UK's Title V opt-in into play. The Minister indicated previously that the UK and other Member States were pressing the Council Legal Service to produce a written opinion. We would like to hear whether he has succeeded in obtaining one and, if so, to share with us the outcome of the legal assessment. We would also welcome further information on the main changes being sought by the European Parliament to the draft Regulation and draft Directive, once it has agreed its first reading position, and the Government's position on them. Meanwhile the proposals remain under scrutiny.


30   See headnote. Back

31   See letter of 13 January 2014 from the Minister for Crime Prevention (Norman Baker) to the Chair of the European Scrutiny Committee and his Written Ministerial Statement of the same date (HC Deb, col. 22WS). Back

32   See letter of 13 January 2014 from the Minister for Crime Prevention (Norman Baker) to the Chair of the European Scrutiny Committee. Back

33   See our Thirty-first Report of 22 January 2014, cited in the headnote. Back


 
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