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
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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
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| Legal base | (a) Article 114 TFEU; co-decision; QMV
(b) Article 83(1) TFEU; co-decision; QMV
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| Department | Home Office
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| Basis of consideration | Minister's letter of 19 March 2014
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| Previous Committee Reports | HC 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)
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| Discussion in Council | No date set
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| Committee's assessment | Legally and politically important
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| Committee's decision | Not cleared; further information requested
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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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