Legally and politically important
Not cleared from scrutiny; further information requested; drawn to the attention of the Home Affairs Committee
(a) Proposal for a Regulation on new psychoactive substances; (b) Proposal for a Directive amending Framework Decision 2004/757/JHA 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
(a) Article 114 TFEU; co-decision; QMV
(b) Article 83(1) TFEU; co-decision; QMV
(a) (35324), 13857/13 + ADDs 1–2, COM(13) 619
(b) (35325), 13865/13 + ADDs 1–2, COM(13) 618
9.1A Council Decision adopted in 2005 (“the 2005 Council Decision”) established a mechanism 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 proposed 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 proposed Directive — is the instrument through which Member States would implement criminal sanctions for the highest risk substances.
9.2The proposed Directive is a Title V (EU criminal law) measure and is subject to the UK’s Title V opt-in Protocol. By contrast, the proposed 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 Regulation (like the 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.
9.3In the Committee’s earlier Reports (listed at the end of this chapter), our predecessors reviewed the proposed Regulation and Directive for compliance with the principle of subsidiarity and concluded that the regulatory framework proposed by the Commission would fetter Member State action to an unacceptable degree. The House of Commons debated and agreed a Reasoned Opinion on 11 November 2013. The previous Committee also sought further information from the Government on a number of issues, including the appropriate legal base for the proposed Regulation and the application of the Schengen Protocol which, if accepted by the Commission and other Member States, would allow the UK to opt out of both proposals.
9.4In April 2014, the European Parliament (EP) agreed its first reading position on the proposed Regulation. The Government considered that the changes proposed by the EP were “helpful, but not sufficient to mitigate our concerns that these proposals fetter the UK’s legislative freedom to respond to the complex challenges posed by new psychoactive substances. This is because the UK would still need to effectively seek approval from the EU to control such substances unilaterally”.
9.5Negotiations within the Council have continued at a slow pace. The Minister for Preventing Abuse, Exploitation and Crime (Karen Bradley) confirms that the Council has yet to agree the legal base for the proposed legislation but says that “we are making progress in securing an appropriate Justice and Home Affairs legal base for all elements of the legislation that contain criminal controls”. The Dutch Presidency has nevertheless called for “a strategic pause” whilst it holds bilateral talks with Member States to agree “a future approach”.
9.6The previous Coalition Government told our predecessors nearly a year ago that “a significant milestone” had been reached, with the UK amongst a majority of 15 Member States opposing action on an internal market legal base. Despite this, negotiations appear to have reached a stalemate. The Commission cannot be compelled to substitute a Title V (justice and home affairs) legal base for an internal market legal base unless all Member States agree that it should. We ask the Minister to provide a further update on the prospects for reaching an agreement on a Title V legal base for some or all elements of the proposed legislation once the Dutch Presidency has concluded its bilateral talks with Member States.
9.7We note that the Government is pressing the Dutch Presidency to continue negotiations on the basis of an alternative text produced by the previous Luxembourg Presidency which would incorporate both proposals (the Regulation and the Directive) in a single instrument citing a Title V legal base. We ask the Minister whether the Government’s negotiating position is intended to put beyond doubt that any new EU legislation on new psychoactive substances would not apply to the UK or to leave open the possibility of opting in post-adoption if the Government is able to secure a satisfactory text. We also ask her to provide a copy of any revised text on which the renewed negotiations will be based.
9.8The Minister indicates that the UK’s opt-in will only be “re-triggered” if the Commission formally amends its original proposal to include a Title V legal base or presents a new proposal with a Title V legal base. Our understanding is that the Government chose not to rely on the UK’s Title V opt-in Protocol but on its Schengen opt-out Protocol — in other words, the Government has not yet triggered the UK’s Title V opt-in since it considers both of the Commission proposals to be Schengen-building measures and has formally notified the Council that it does not wish to participate in them. We ask the Minister to confirm that this remains the Government’s position and to indicate whether the alternative text presented by the Luxembourg Presidency (which the Government favours) is also a Schengen-building measure.
9.9Pending further information, the proposals remain under scrutiny. We draw them to the attention of the Home Affairs Committee.
(a) Proposal for a Regulation on new psychoactive substances: (35324), + ADDs 1–2, COM(13) 619; (b) Proposal for a Directive amending Framework Decision 2004/757/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: (35325), + ADDs 1–2, COM(13) 618.
9.10Psychoactive substances — often referred to as “legal highs” — affect the central nervous system and functioning of the brain, inducing changes in mood, perception and behaviour similar to those associated with the consumption of illicit drugs. Whilst their composition and effects are often unclear, they can be toxic, addictive, damaging to health and carry longer-term social risks, not least because of the involvement of organised crime groups in their distribution. The market in new psychoactive substances is highly adaptable, responding rapidly to the imposition of new drug controls.
9.11The Commission considers that the 2005 Council Decision establishing the existing EU regulatory framework for new psychoactive substances is inadequate on the grounds that: it is too reactive, following rather than anticipating developments in the market; it lacks the flexibility to respond quickly to changes in the chemical composition of new psychoactive substances; and it only provides for criminal sanctions, even though lighter risk management options might be beneficial in some cases. The Commission also highlights the risk that divergent national approaches to new psychoactive substances may impede their legitimate use (for example, for commercial, industrial or scientific research and development purposes) or divert trade in harmful substances from one Member State to another, thereby fragmenting the internal market.
9.12The Commission presented its proposals for a new regulatory framework for new psychoactive substances in September 2013. The previous Coalition Government argued that the proposed Regulation, like the proposed Directive, should cite a Title V (criminal law) legal base on the grounds that trade in new psychoactive substances is “overwhelmingly illicit” and that the aim and content of the proposal falls within the scope of Article 83(1) of the Treaty on the Functioning of the European Union (TFEU) because it concerns an area of “particularly serious crime with a cross-border dimension”. It also considered that both measures build on the Schengen rulebook and were therefore subject to the UK’s Schengen opt-out Protocol. The Government notified the Commission and Council in January 2014 that it had decided to opt out of both proposals.
9.13Our predecessors noted that the UK appeared to be alone in regarding the proposals as Schengen-building measures and questioned the practical utility and effect of the Schengen Protocol: if the Commission and other Member States were unwilling to accept that it applied, then the UK would be automatically bound by the proposed Regulation unless it was amended to cite a Title V legal base, thereby bringing the UK’s Title V opt-in into play, or the UK could establish in legal proceedings before the Court of Justice that the Regulation (once adopted) is, in fact, a Schengen-building measure.
9.14In its last update, in March 2015, the previous Coalition Government noted that “the final form and legal base of the draft measure has yet to be agreed” and that it was pressing for “all elements of the measure to have an appropriate Justice and Home Affairs legal base and for proportionate EU level action that enhances information sharing while protecting Member States’ national competence”. The Government indicated that 15 Member States, including the UK, had “delivered a coordinated message that we could not support action under an internal market legal base”, describing this to be “a significant milestone”.
9.15Our predecessors recognised the importance of resolving the legal base for the proposed Regulation, noting:
“We are unlikely to clear the proposals from scrutiny until a satisfactory outcome on the legal base has been achieved within the Council and the Government is able to tell us which of the UK’s Title V opt-in or Schengen opt-out Protocols apply and how this will be reflected in the recitals to the draft Regulation and the draft Directive.”
9.16The Minister confirms that the Council still has not reached an agreement on the appropriate legal base for both proposals, but adds:
“However, there are positive signs that we are making progress in securing an appropriate Justice and Home Affairs legal base for all elements of the legislation that contain criminal controls.
“Following sustained and coordinated lobbying from the United Kingdom and our like-minded partners, the Council Legal Service produced a legal opinion on the Commission’s proposals in May 2015. The opinion supports our shared analysis on the key elements of the dossier: that the Commission has not demonstrated sufficient evidence of a legitimate trade to meet the legal standard for an internal market legal base; the relative weakness of a safeguard clause in protecting Member States’ national legislation from harmonisation; that geographic scope is an irrelevant factor in selecting a legal base; and that a Justice and Home Affairs legal base would be an appropriate alternative.
“The United Kingdom and fourteen other Member States used the legal opinion to reinforce and highlight our strong collective opposition to the use of an internal market legal base. In response, the Latvian Presidency directed the Horizontal Drugs Group to stop work on an internal market legal base and to explore alternatives. This included a specific request to test a Justice and Home Affairs legal base.
“The Luxembourgish Presidency presented an alternative text under a Justice and Home Affairs legal base in late August 2015. The text envisioned a single Directive containing all elements of the legislation, including: enhanced information sharing, a revised risk assessment mechanism, and EU wide minimum criminal controls. The text removed the previous three tier risk model, but did include time-limited emergency controls for high risk new psychoactive substances.
“Negotiations on the Luxembourgish text were difficult. We outlined our support for a change in legal base; however the Commission and a small number of Member States strongly opposed the change to a Justice and Home Affairs legal base. This effectively blocked adoption of the new text, and unanimity will be required in the Council to unlock the Commission’s opposition.”
9.17Given these difficulties, the Minister explains that the current Dutch Presidency has called for “a strategic pause” and is “engaging bilaterally with Member States on a future approach”. The Government intends to use this opportunity to reinforce its position and press for continued work on the basis of the alternative text put forward during the Luxembourg Presidency. This text would modify the Commission’s original proposal for a Directive which “the Government exerted its decision not to opt into in December 2013”. The Minister continues:
“This is not a new proposal, nor has the Commission formally amended its proposal: the only circumstances under which we consider that our opt-in would be retriggered. The United Kingdom will not get a second opportunity to opt-in to this Directive prior to adoption unless the Commission formally amends its proposal.”
9.18Since negotiations have continued to focus on the appropriate legal base for EU action, the Minister notes that limited progress has been made on the detail of the proposed legislation. She reiterates the Government’s concern that the approach advocated by the European Parliament — using the Technical Standards Directive (an internal market measure) to notify the Commission when a Member State proposes to introduce controls on a new psychoactive substance — would be inappropriate since it would “impose a stand still period in order to allow the Commission and Member States to challenge potential impediments to free trade”. She continues:
“We judge that the risk of the Technical Standards Directive being included within the Council’s final text has now reduced. This follows clear advice that the Technical Standards Directive would only have been appropriate under an internal market legal base, and the deletion of the clause from the Luxembourgish text. As an alternative, we have advocated the value of Council Members using the European Monitoring Centre for Drugs and Drug Addiction’s (EMCDDA) existing information sharing network (the REITOX network) to notify Member States when they control further new psychoactive substances.
“There is broad support in the Council for strengthening information sharing and streamlining the EMCDDA’s evidence based risk assessment process, but no specific proposals have yet been agreed. We broadly support the proposals within the Luxembourgish text, and will seek to ensure that amendments strengthen the existing EMCDDA REITOX network and do not establish a parallel network.
“We judge it unlikely that the Article on emergency controls within the Luxembourgish text will be included in the final Council text as there is significant opposition from a wide range of Member States.
“There has been no agreement on permanent criminal controls, and agreement on these is unlikely until the measures’ legal bases have been resolved.”
9.19The remainder of the Minister’s letter addresses questions raised by the European Union Committee in the House of Lords on a separate Commission report on the progress made in implementing the EU Drugs Strategy for 2013–20 and Action Plan on Drugs (2013–16). The Committee asked whether the Government would support further EU action on “the misuse of and dependence on prescribed medicines and the increasing danger posed by the internet as a market place”. The Minister comments:
“The Government recognises the significant harms caused by the misuse of prescribed controlled medicines and the role of the internet in facilitating the sale of some illegal drugs. We will review specific proposals for EU action on both of these issues on an individual case by case basis, and will continue to press for subsidiarity to be the primary factor.
“There may be some value in targeted EU action to support information sharing on prescribed controlled medicines in addition to that which takes place in the context of medicines regulation. However, the Government does not judge EU action on this issue to be an immediate priority and any action to support health care professionals should be led by the Directorate General for Health and Food Safety. Any EU action would need to be under an Article 168 public health legal base, and would be limited to complementing national level action.
“The Government has opted out of all EU criminal legislation on illicit drugs, but supports robust and proportionate EU level action within existing legislation to restrict the supply of drugs. We do not judge that further legislative proposals, beyond the draft dossiers on new psychoactive substances, are necessary, as the definitions of supply cover the sale of drugs over the internet.
“The Government will contribute to the Commission’s 2016 evaluation of the Action Plan on Drugs. We see this as a key opportunity to outline the importance of focused, prioritised and proportionate EU action that strictly adheres to the principle of subsidiarity.”
Thirty-seventh Report HC 219-xxxv (2014–15), (18 March 2015); Second Report HC 219-ii (2014–15), (11 June 2014); First Report HC 219-i (2014–15), (4 June 2014); Forty-fourth Report HC 83-xxxix (2013–14), (26 March 2014); Thirty-first Report HC 83-xxviii (2013–14), (22 January 2014); Twenty-sixth Report HC 83-xxiii (2013–14), (4 December 2013); Nineteenth Report HC 83-xviii (2013–14), (23 October 2013).
53 Council Decision 2005/387/JHA, OJ No. L 127, 20.05.2005.
54 See letter of 13 January 2014 from the then Minister for Crime Prevention (Norman Baker) to the Chair of the European Scrutiny Committee and his of the same date (HC Deb, col. 22WS).
55 Letter of 3 June 2014 from the then Minister for Crime Prevention (Norman Lamb) to the Chair of the European Scrutiny Committee.
56 See letter of 10 March 2015 from the then Minister for Crime Prevention (Lynne Featherstone) to the Chair of the European Scrutiny Committee.
57 See letter of 10 March 2015 from the then Minister for Crime Prevention (Lynne Featherstone) to the Chair of the European Scrutiny Committee.
58 See letter of 14 January 2016 from the Chair of the European Union Committee (Lord Boswell) to the Minister of State for Policing, Crime, Criminal Justice and Victims (Mike Penning).
Prepared 16 March 2016