Legally and politically important
Cleared from scrutiny; further information requested; drawn to the attention of the Home Affairs Committee and the Committee on Exiting the European Union
(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
(c) Proposal for a Regulation amending Regulation (EC) No 1920/2006 as regards information exchange, early warning system and risk assessment procedure on new psychoactive substances
(a) Article 114 TFEU, ordinary legislative procedure, QMV
(b) Article 83(1) TFEU, ordinary legislative procedure, QMV
(c) Article 168(5) TFEU, ordinary legislative procedure, QMV
(a) (35324), 13857/13 + ADDs 1–2, COM(13) 619
(b) (35325), 13865/13 + ADDs 1–2, COM(13) 618
(c) (38033), 11520/16, COM(16) 547
21.1New psychoactive substances—often referred to as “legal highs”—present particular challenges for regulatory authorities across Europe. They constitute a rapidly growing market, are highly adaptable to changes in the regulatory framework and provoke differing views on the degree of risk they pose to health and society. Under existing EU rules set out in a 2005 Council Decision, EU-wide control measures and criminal penalties may be introduced for substances which pose unacceptable health and social risks, following a risk assessment prepared by the European Monitoring Centre for Drugs and Drug Addiction (EMCDDA). These EU-wide measures do not prevent Member States from introducing or maintaining their own national controls.
21.2In 2013, the Commission proposed a revision of the EU legal framework to make it more responsive to the emergence of new psychoactive substances and to introduce a broader range of options for EU-wide market restrictions, but maintaining an outright ban and criminal sanctions for all high risk substances. 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.
21.3Negotiations on both proposals have been protracted, largely because the UK and other Member States contested the Commission’s choice of an internal market legal base to regulate a trade which the Government describes as “overwhelmingly illicit”. The Government considered that the Regulation (like the Directive) should cite a Title V criminal law legal base. It also argued that both proposals build on provisions of the 1990 Schengen Implementing Convention and are therefore subject to the UK’s Schengen opt-out Protocol. In January 2014, the then Coalition Government confirmed that it had “decided to opt out of both of the new psychoactive substances proposals under the Schengen Protocol” and that it had “informed the EU Council Secretariat of our position”.
21.4To overcome the deadlock in negotiations, the Commission has published a new proposal for a Regulation—document (c)—which cites a public health legal base and focuses exclusively on the role of the EMCDDA in facilitating the exchange of information on newly emerging psychoactive substances, strengthening the early warning system, and preparing risk assessments. The Commission intends to withdraw its more far-reaching proposal—document (a)—as part of its 2017 Work Programme. The Commission’s latest proposal has to be read alongside its earlier proposed Directive, document (b). Both instruments—documents (b) and (c)—are intended to replace the 2005 Council Decision. This Decision no longer applies to the UK following the previous Government’s “block opt-out” of a range of EU police and criminal justice measures adopted before the Lisbon Treaty took effect on 1 December 2009.
21.5In earlier correspondence the Home Secretary (Amber Rudd) ruled out UK participation in the proposed Directive but confirmed that the proposed Regulation—document (c) would apply to the UK as it does not engage the UK’s Title V (justice and home affairs) opt-in Protocol or Schengen opt-out Protocol. She indicated that there was “substantial support” within the Council for the revised package.
21.6In her latest letter, the Home Secretary informs us that the Slovakian Presidency expects to seek agreement to a General Approach on documents (a) and (b) at the Justice and Home Affairs Council on 8–9 December and indicates that the Government “would be content to agree”. She invites us to clear these documents from scrutiny. She also seeks to clarify the Government’s position on:
21.7The Home Secretary invites us to clear from scrutiny documents (a) and (b) even though the General Approach which she expects the Council to agree on 8–9 December concerns documents (b) and (c), and only document (c) will apply to the UK once adopted. We treat this as an unfortunate oversight and agree to release all three documents from scrutiny for the following reasons: the Commission has made clear its intention to withdraw document (a); document (b) will not apply to the UK; and document (c) now cites a public health legal base which precludes any harmonisation of national laws. The enhanced role envisaged for the EMCDDA in monitoring the emergence of new psychoactive substances and assessing the risks they present will not undermine the UK’s ability to determine which substances should be controlled under domestic legislation.
21.8We note that the Council does not accept the Government’s position that the UK’s Schengen opt-out Protocol applies to the proposed Directive—document (b). The recitals to the proposal make clear that, as a matter of EU law, the UK’s decision not to participate is based solely on the application of the UK’s Title V opt-in Protocol. As the Home Secretary indicates, this has “no practical impact”. We nevertheless reiterate our view that the basis for the UK’s non-participation in EU legislation is important in terms of transparency, legal certainty and accountability to Parliament. It is highly regrettable that the UK and the Council are unable to agree. We ask the Home Secretary whether she intends to enter a statement in the Council minutes recording the Government’s position and, if so, to provide us with a copy.
21.9We thank the Home Secretary for clarifying her understanding of the outcome of the COREPER meeting in April. Her interpretation of events again appears to place the UK at odds with the Council. Fortunately, the disagreement appears to have had no material effect on the compromise package to be agreed by the Council on 8–9 December.
21.10We are disappointed at the Home Secretary’s reticence to address the questions we have raised about the UK’s future relationship with the EMCDDA following its withdrawal from the EU. We did not ask her to “speculate” on what “future arrangements may look like” but to explain whether the Home Office is undertaking an assessment of the costs and benefits of continuing UK participation in the EMCDDA post-Brexit and whether she believes that it would be in the UK’s interest to establish a formal working relationship with the EMCDDA. We do not accept that information of this nature would in any way undermine the Government’s broader Brexit negotiating objectives. We ask her again to clarify the Government’s position and to share with us the findings of any assessment undertaken by the Government.
(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; (c) Proposal for a Regulation amending Regulation (EC) No. 1920/2006 as regards information exchange, early warning system and risk assessment procedure on new psychoactive substances: (38033), , COM(16) 547.
21.11Our earlier Reports listed at the end of this chapter provide a detailed overview of the documents, the Government’s position, and the twists and turns in the negotiations. Throughout our scrutiny of these proposals, we have expressed concern at apparent inconsistencies in the Government’s position on the application of the UK’s Title V (justice and home affairs) opt-in and Schengen opt-out Protocols, 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.”
21.12The Home Secretary explains that the Slovakian Presidency “unexpectedly” informed the Government on 17 November that it intended to seek approval for a General Approach on documents (a) and (b) at the Justice and Home Affairs Council on 8–9 December. She expects the Council to agree and continues:
“Pending final negotiations, the Government would be content to agree General Approach at this Council. As stated in my previous letter, the UK will not participate in the Directive, and the Government is content with the draft Regulation.”
21.13She invites us to clear documents (a) and (b) from scrutiny ahead of the Council and encloses, in confidence, the latest drafts of documents (b) and (c) on which she expects the General Approach to be based.
21.14In our earlier (Seventeenth) Report, we asked the Home Secretary to clarify whether the Government’s decision not to participate in the proposed Directive was based on the UK’s Schengen opt-out Protocol or its Title V opt-in Protocol and how the UK’s non-participation in the proposed Directive would be reflected in its recitals. Although we recognised that the outcome would be the same, whichever Protocol applied, we considered that the basis on which the Government acts was important in terms of transparency, legal certainty and accountability to Parliament. The Home Secretary responds:
“The Government considers the draft Directive is a Schengen-building measure and contains Justice and Home Affairs content. As you will be aware, the UK’s Schengen opt-out (Protocol 19) takes precedence over the Justice and Home Affairs opt-in (Protocol 21). The most recent draft Directive includes the following recital relating to Protocol 21:
‘In accordance with Articles 1 and 2 of Protocol No 21 on the position of the United Kingdom and Ireland in respect of the area of freedom, security and justice, annexed to the Treaty on European Union and to the Treaty on the Functioning of the European Union, and without prejudice to Article 4 of that Protocol, those Member States are not taking part in the adoption of this Directive and are not bound by or subject to its application.’
“The Government is seeking to include recital language which reflects the application of the Schengen opt-out Protocol (Protocol 19). Since other Member States do not share the Government’s view that the draft Directive is Schengen-building, we may not secure agreement to the inclusion of the Protocol 19 recital. This would have no practical impact as the current recital makes clear that the UK is not participating in and [is] not bound by this Directive.”
21.15The Home Secretary provides further information on the agreement reached in COREPER—the deliberative body on which each Member State is represented—in April which paved the way to the Commission’s latest proposal—document (c)—and reiterates her view that no fresh Title V opt-in decision was required as a result of those deliberations.
“The Commission’s explanatory memorandum to the new September 2016 draft Regulation reflects the position that the Council has agreed, which the UK disagrees with. This position is that the Permanent Representatives Committee meeting in April 2016 agreed to turn the original (2013) draft Regulation from a Regulation with an internal market legal base into a Regulation with a Justice and Home Affairs legal base. The Government questions this interpretation of the outcome of this meeting. It was not clear ahead of this meeting that this was the decision to be taken, and there was no discussion on this point before, during or after the meeting.
“In any event, I would not consider that such an agreement at a Permanent Representatives meeting could re-trigger an opt-in decision.
“No new text was presented by the Commission for consideration and there were no formal amendments by the Commission to existing texts. The Government considers that texts amended by the Council during negotiations do not re-trigger the UK’s opt-in, where the Government has previously taken an opt-in or Schengen opt-out decision on the basis of the content of the measure. It is only re-triggered when the Commission publish a new formal proposal or a formally amended proposal.
“Separately, the Permanent Representatives meeting requested that the Commission present a new, alternative (2016) draft Regulation with a public health legal base. This is the text that the Council is now working on, which will be submitted to the Justice and Home Affairs Council on 8–9 December. The Government and the Commission agree that there is no Justice and Home Affairs content in the new draft Regulation.
“To summarise, the only disagreement in relation to the application of the Justice and Home Affairs opt-in is in relation to the supposedly amended 2013 draft Regulation, which we expect to be formally withdrawn by the Commission once the 2016 Regulation and 2013 Directive as amended are adopted.”
21.16Turning to the substance of the Commission’s most recent proposed Regulation—document (c)—the Home Secretary confirms that the Government would have preferred the Council, as well as the Commission, to have the power to initiate a risk assessment on one or more new psychoactive substances of concern and pressed for this outcome during negotiations. She notes that there was “limited support for this from other Member States”—the majority accepted that this power should rest exclusively with the Commission.
21.17We previously reported the Home Secretary’s view that there would be “no interface” between the Regulation and Directive—documents (b) and (c)—once adopted, and the UK’s Advisory Council on the Misuse of Drugs. We asked whether she accepted, nevertheless, that the information collected by the EMCDDA on new psychoactive substances and its in-depth risk assessment reports would be of considerable interest to the Advisory Council in making its own assessment of the harmful effects of these substances and the need for domestic control measures. She responds:
“There will be no interface between these measures and the Advisory Council in terms of the measures having any legal impact on the Advisory Council’s work. The Committee is right to highlight that the information gathered by the European Monitoring Centre for Drugs and Drug Addiction will continue to inform the Advisory Council’s assessments of whether substances should be controlled under the Misuse of Drugs Act 1971.”
21.18Finally, we noted that under its founding Regulation, third (non-EU) countries which share an interest in the EMCDDA’s objectives are able to participate in its work on the basis of a bilateral agreement concluded with the EU. If the UK were to seek to conclude such an agreement, it would be entitled to a non-voting representative on the EMCDDA’s Management Board, the body responsible for establishing the EMCDDA’s work programme. The previous Coalition Government’s Command Paper evaluating a range of EU police and criminal justice measures which were within the scope of the UK’s “block opt-out” made the following observation:
“The UK’s participation in time-sensitive EU-wide information about prevalence and harms of new substances enables us to influence EU and Member States’ legal responses, supporting enforcement and judicial cooperation in a drugs market that does not respect borders, especially with the role of the internet and use of internal transit countries.”
21.19We asked the Home Secretary what assessment she had made of the costs and benefits of continuing UK participation in the EMCDDA following the UK’s withdrawal from the EU. We invited her to share the Government’s assessment with us and to indicate whether she believed that it would be in the UK’s interest to establish a formal working relationship with the EMCDDA. She responds:
“The Government recognises the value of the UK’s engagement with the European Monitoring Centre for Drugs and Drug Addiction. Officials are considering arrangements once the UK has left the EU but it is too early to speculate at this stage what future arrangements may look like. However, I want to assure you that effective data-sharing with international partners will remain a UK priority and an area where we continue to play a leading global role.”
Seventeenth Report HC 71-xvi (2016–17), (9 March 2016); 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).(16 November 2016); Third Report HC 71-ii (2016–17), (25 May 2016); Twenty-fifth Report HC 342-xxiv (2015–16),
40 See on the information exchange, risk assessment and control of new psychoactive substances.
41 See 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).
42 Document (a)—the Commission’s first proposal for a Regulation—is listed in of the Commission’s recently published Work Programme for 2017 as one of a number of pending legislative proposals it intends to withdraw within the next six months.
43 See our Thirty-seventh Report HC 219-xxxv (2014–15), (18 March 2015).
44 See our Seventeenth Report HC 71-xvi (2016–17), (16 November 2016).
45 See Article 21 of on the European Monitoring Centre for Drugs and Drug Addiction.
46 See p,51, para 110 of published in July 2013.
9 December 2016