Revised transcript of evidence taken before

The Select Committee on European Union

Home Affairs, Health and Education (Sub-Committee F)

Inquiry on

ENHANCED SCRUTINY: NEW PSYCHOACTIVE SUBSTANCES

Evidence Session No. 1 Heard in Public Questions 1 - 9

WEDNESDAY 16 OCTOBER 2013

10.00 am

Witnesses: Norman Baker MP, Daniel Greaves and Stephen Smith

USE OF THE TRANSCRIPT

1. This is an uncorrected transcript of evidence taken in public and webcast on www.parliamentlive.tv.

2. Any public use of, or reference to, the contents should make clear that neither Members nor witnesses have had the opportunity to correct the record. If in doubt as to the propriety of using the transcript, please contact the Clerk of the Committee.

3. Members and witnesses are asked to send corrections to the Clerk of the Committee within 7 days of receipt.

1

Members present

Lord Hannay of Chiswick (Chairman) Viscount Bridgeman Lord Faulkner of Worcester Lord Judd Lord Morris of Handsworth Lord Sharkey Earl of Stair Lord Wasserman ________________

Examination of Witnesses

Norman Baker MP, Minister of State for Crime Prevention, Home Office, Daniel

Greaves, Head of Drugs and Alcohol Unit, Home Office, and Stephen Smith, Senior

Lawyer, Home Office Legal Adviser’s Branch.

Q1 The Chairman: Minister, thank you for coming along to give evidence to us this

morning so soon in your tenure in this post. As you know, we were not insistent on that;

however, we do recognise that it is helpful that you yourself have come along this morning

to give the evidence.

Before I go into the formal preamble of these matters, could I explain the process this Sub-

Committee is involved in? I am sure you know this, but it is rather important for it to be on

the record. Under the provisions of the Lisbon Treaty, there is a procedure that enables

either House of our Parliament to submit a reasoned opinion to the European authorities if

it considers that the proposal the Commission has put forward is outside the parameters of

subsidiarity. That is the process we are in now. We are not in a process of saying, normally,

is this a good proposal? Does it do sensible things? Is its method of operation right? What

does the Government think about it? We want to cover all of those things too, but we have

to cover this, because we have an eight-week limit on doing so. It is eight weeks from

2

17 September, so we have to do it by mid-November and, since we have to get an opinion

from the House of Lords, it all takes a bit of time.

That is the nub of the matter. We understand the Government does not put in reasoned

opinions: we put in reasons opinions and the House of Commons puts in reasoned opinions.

However, we obviously want to know the Government’s views before we take a decision,

which we will take immediately after this meeting, on whether or not to go down the

reasoned-opinion route or whether, simply, to write to you about the points that have been

raised on the proposal.

I apologise for saying that, because I am sure you have been briefed on that already, but it is

fiendishly complex and it is important that we all address the issues that each of us has to

cover in our responsibilities. I will go on from that just to say, as usual, that the session is in

public; it will be broadcast; a transcript is being taken; and a copy of the transcript will be

sent to you to give you an opportunity to make any corrections to it, although it will be

published online in an uncorrected form first.

Any points you may wish to make following the session should be made in writing and they

will be very welcome and received, but, for the reasons I have already said, they will have to

be produced pretty fast, because we have to go ahead. If we do decide on the

reasoned-opinion route, we will be taking a paper on that at our meeting next Wednesday.

That will go to EU Select the following Tuesday, and it will go to the House before the

deadline of the 13th to enable the House—not the Government, but the House—to decide

whether to put in a reasoned opinion to Brussels.

Minister, if you would like to make any opening comments, that would be very welcome,

but, if you did not wish to do so, we would move on to questions.

Norman Baker: Thank you very much, Lord Hannay. I am very pleased to be here. I will

make some opening comments, if I may.

3

As you will appreciate, I have been in office for about a week. I do not profess to be a

complete expert in this area, though I have obviously done my best to get up to speed

quickly. I also have a meeting, to which I have to go, with the Home Secretary at 11 o'clock,

so I will have to disappear halfway through your session. Nevertheless, I wanted to attend in

person to recognise the importance of both the process you are involved in and the issue

involving new psychoactive substances, and also to recognise the importance of the

constitutional point that you are keen to pursue—namely, the issue of subsidiarity. That is

the reason why I wanted to attend today.

It is worth saying something about the substances themselves to begin with, notwithstanding

that you obviously want to concentrate on the constitutional point. It is quite clear that the

number and diversity of these new psychoactive substances has changed in recent years with

the changing nature of the global drugs market. Of course, by their very nature, they are

able to appear without very much warning; therefore, there is more of a challenge for us as

a Government—and, indeed, for the international community—to respond to what are

often quite dangerous substances.

They have the unfortunate terminology “legal highs”, which implies to some members of the

public that they are safe, because they are legal. That is quite clearly not the case. In fact, in

some cases, these so-called legal highs are more dangerous than substances that are

controlled drugs under the Misuse of Drugs Act 1971. There is a need to be able to

respond quickly to the situation.

Here in the UK, we are in a position that is better than many other countries. We have a

comprehensive, well recognised response to these substances. It covers early-warning

legislation, demand reduction and treatment and we are taking the lead in galvanising

international opinion and co-operation as well. We have deployed generic definitions,

whereby entire families of drugs are brought under the Misuse of Drugs Act 1971. That has

4

put us in a stronger, more durable position, which in theory means that some substances can

appear that we have already caught, because we have dealt with the family of those

particular substances, rather than having to wait for individual tweaks to have to be dealt

with under these arrangements. I am keen that the time between identifying the problem

and instituting the appropriate measures should be as short as possible—consistent, of

course, with proper scientific, legal and technical analysis.

Your Committee may be interested to know that, through these mechanisms, we have

banned the majority of new psychoactive substances seen in the European Union since 2005.

Of the 280 such substances identified in Europe up to 2011, over 87% of the main groups

are already controlled. Out of the 73 reported in the EU in 2012, only 18 have been seen in

this country already, with eight already having been controlled. Since 2010, we have banned

in excess of 200 of these substances, including 15 under temporary bans. In the international

arena, we are taking steps to ensure we have more collaborative working to deal with

monitoring, research, analysis and forensic capability and to improve the intelligence around

the international trade and market in these substances.

In the UN Commission on Narcotic Drugs in March this year, we led a resolution that will

lead to the development of a global early-warning system, enabling monitoring on a global

level for the first time. This resolution received comprehensive international support with

41 co-sponsors from across every UN region.

In terms of the European Union’s role in this, which is of course the matter you are

primarily concerned about today, you will know that on 17 September the

European Commission published a draft Regulation and Directive aimed at strengthening the

European Union’s ability to respond to new psychoactive substances. The Regulation is

intended to replace an existing EU instrument, which dates from 2005. I agree with this

Committee’s previous assessment that the most useful aspect of the 2005 measure has been

5

its EU-wide identification and monitoring component, which has complemented our own

drug early-warning systems. It is arguably less useful to us, however, in terms of identifying,

risk-assessing and banning those substances, as the UK tends to be already ahead of the

curve in identifying such substances.

To date, the requirement for Member States to ban certain substances has had little impact

on the UK. Of the nine that the EU has already identified for such action under existing

arrangements, eight are already being controlled by UK; when we looked at the ninth one,

we agreed that it was sensible to take action on that one as well. There is, of course, a

potential in the future, if the new arrangements are adopted, that there could be substances

that the EU wishes to apply a certain categorisation to, which might be weaker than we

would seek to apply ourselves in this country, because we have identified a higher risk, or

even conceivably that they might want to control a substance which we regard as harmless

or not needing to be controlled in the same way. The new proposals do open up the

possibility of some dispute between Member States and the European Union in a way that I

personally think is not helpful.

The present instrument the EU uses is cumbersome and not very well equipped for dealing

with the fast-moving scene in which we find ourselves and the sudden appearance of

substances that ought to be controlled. To that extent, it is sensible that a better method is

approached. What the EU appears to be doing is picking up on good practice from this

country and then seeking to apply it at an EU level. There is an issue, frankly, as to whether

or not the imposition of an EU-wide decision-making process to supplement or supplant the

national arrangements is a sensible way forward if that then takes away Member State

jurisdiction. I should say that I say that as a Liberal Democrat, but it is important we have

subsidiarity where it is appropriate to do so and decisions are taken at the appropriate level.

I am not convinced that the EU ruling on those matters is necessarily the best way forward.

6

It may also be the case, for example, that there are particular circumstances and individual

Member States that vary. One substance may be, for example, something that is suddenly

picked up by schoolchildren in a particular Member State and therefore presents a particular

difficulty and challenge in that Member State, whereas in another Member State it may be

largely absent or confined to, say, a small group of people who are perhaps more capable of

taking decisions for themselves and, therefore, in societal terms there is less of a risk than

there would be in purely scientific terms. Of course, the EU arrangements that are being

proposed do not allow that level of sophistication in the same way as, perhaps, we ought to

see.

In terms of the negotiations on this matter, to come to the nub of where you want to get to,

we are in the early stages of negotiation. The first meeting of the Horizontal Drugs Group is

in fact taking place in Brussels as we speak. We are looking to have the measure recognised

as a Schengen-building measure and are considering whether the measure should cite a

Title V legal base.

One of the reasons we consider this should be a Title V measure is because our evidence

suggests the trade is overwhelmingly illicit and therefore it is difficult to argue that this is a

trade measure, when there is very little legal trade taking place on this basis. We are certain

that the Schengen opt-out applies to both measures: the Directive and the Regulation. On

this basis, we are taking a decision on UK participation under that protocol. We are taking

this approach not only to ensure our treaty rights under Protocol 19 are respected, but also

to ensure the proposal is categorised correctly. We will be looking to build alliances with

other Member States who have similar concerns—notably Ireland, but not only Ireland.

It is important for me to emphasise that this does not necessarily mean we will opt out. We

will need to look at the proposals on their merits. Key factors for us will be points about

subsidiarity, as I mentioned, and the proportionality of the proposed measures. There are a

7

number of issues I have initial concerns about, including how this will affect national

competence in this area, but we can no doubt pursue those matters.

I hope that was a helpful introduction. It is not my normal practice to have officials with

me—I have never done it before—but, given the technical nature of this issue and the legal

matters involved, I thought, rather than commit the Government to a policy that will

surprise my colleagues, I would have officials here to help me on those technical and legal

matters as we progress.

It may be, Lord Hannay, that I will defer questions to officials if I am not 100% sure of the

answer.

Q2 The Chairman: Thank you very much, Minister. I will give the floor to my colleagues

on your opening statement, but, for my own part, that was a very helpful opening statement

indeed. It was very full, it was pretty clear, and it has moved us into the question period

very effortlessly. As for your colleagues, we often have Civil Service colleagues with

Ministers, but sometimes we do not. It is entirely a matter for Ministers and we are

delighted to see well qualified officials with you, who can help if some of the discussion gets

very technical. As for 11 o'clock, I still have a heroic desire to get through most of it by then,

so let us get going.

The Explanatory Memorandum that the Home Office submitted under the name of your

predecessor indicates that the legal trade in new psychoactive substances is “very small”.

You repeated that this morning. Could you elaborate? Is that the case right across the EU?

Is there a potential for a more substantial trade to build up in the future?

Norman Baker: Clearly, there are people out there who will seek to find existing products,

to find out whether they have applications that are inappropriate and whether they can be

misused. This will perhaps be a line of inquiry for those who want to pursue it. Obviously,

it is unhelpful for us if they do; it is easier to deal with substances that are manufactured

8

entirely for an illicit purpose, in a sense, than trying to deal with substances that have a

legitimate purpose and also a potential for misuse. We do think there are very few such

substances: GBL is an example of such a new psychoactive substance.

The Chairman: Could you possibly explain to us what that is?

Norman Baker: I am going to try to pronounce it. I have been told by officials that I will

have to get used to pronouncing long words.

The Chairman: Yes, this is just so that we get it into the record in the right way.

Norman Baker: I hope officials will tell me if I have this wrong: gamma-butyrolactone is the

substance.

The Chairman: You can help our Hansard writer correct that in due course, so we get

that right.

Norman Baker: That is an example of an existing substance that has a legitimate industrial

use, where the supply or misuse would be controlled under the Misuse of Drugs Act 1971.

There are also, of course, naturally occurring substances—magic mushrooms, most

notably—that will grow in places perhaps in ignorance of the person who owns the land.

There are those complications, but it seems to me, overwhelmingly, that the substances

involved are going to be manufactured deliberately for illicit purposes. Therefore, illicit

trade is going to be predominant and licit uses few and far between, so far as we can tell. As

regards the legitimate trade across Europe, that will be difficult to measure, but it should be

the exception rather than the rule. Let me ask officials if they want to add anything to that.

Daniel Greaves: That is absolutely right. Our own experience shows there is a very small

legitimate trade in new psychoactive substances—namely commercial and industrial uses.

The example the Minister gave was a good one. GBL, gamma-butyrolactone, is an industrial

cleaner, but is also used for intoxication, as is 1,4- Butanediol. The only other substances we

9

are aware of are a small number of piperazines, which are used in the manufacture of

medicines.

As far as we are aware, none of the other approximately 300 new psychoactive substances

that have been reported to the European Monitoring Centre for Drugs and Drug Addiction

have commercial or industrial uses. You asked a question about likelihood in the future.

That is very difficult for us to know at this stage, but at present it seems like the industrial or

commercial use of new psychoactive substances does seem to be the exception, rather than

the rule. We are seeking to understand how the European Commission has come to a very

different view on that matter.

The Chairman: That is the basis on which you are arguing, or are going to argue in

Brussels today and elsewhere, that this is not really properly characterised as a single-market

measure, but is much more to do with other aspects, which are covered by different treaty

positions. That is the essence of the argument, is it? This is, in a way, a proportionality

argument: they are taking a sledgehammer, allegedly to preserve single-market trade, but

actually to take measures to ban certain substances, should the evidence lead in that

direction. Have I understood that correctly?

Norman Baker: It might be argued by those with suspicious minds that, by approaching it

on the basis of a single-market approach, it gives more leverage for control, rather than

using Title V.

The Chairman: Yes. However, in any case, your view is that because of the very small

amount of trade involved it is not really very well justified.

Norman Baker: It is difficult to justify, given the extent of the trade.

Q3 Lord Faulkner of Worcester: I would like to ask the Minister about the proposed

timescale the Commission have put forward in their plans. Do you think it is going to be

more effective than the current system or more effective than Member States taking action

10

at a national level? They are proposing a revised timescale for implementing temporary and

permanent consumer-market restrictions and criminalisations.

Norman Baker: The present EU provisions are very slow in responding to the appearance

of substances, which is sometimes almost overnight, which can in some cases be very

dangerous. In fact, it can take two years for action to be taken to control the substances at

EU level. Clearly, that instrument is, if not quite hopeless, certainly inadequate to the

challenge we have at the moment. The world has moved on from when this was produced

in 2005.

The temporary banning arrangements we have in this country are a useful mechanism, and

we are able to take the decisions in weeks, rather than months, to control substances. This

still allows for proper scientific analysis within that period of weeks. What the EU is

proposing is probably going to be—and I think it is—based on our system, and will have the

same turnaround period. They will be able, as I understand their proposals, to emulate what

we are doing in terms of the timescale to control substances. The issue for me is not

particularly a matter of how effective the mechanism will be; I think the mechanism they are

proposing will be effective. The issue is whether or not it is appropriate for the decision to

be taken at EU level or whether it is better dealt with at Member State level.

Lord Faulkner of Worcester: What is your view?

Norman Baker: My opinion is it is a matter of subsidiarity and it would be better dealt with

at a Member State level, by and large. That is not to say that the EU does not have a role; of

course it has. There is also a need for co-operation and a need to ensure we share

information and so on. There may be occasions, as there are at the present time, when

there are substances so dangerous that it is appropriate to take action across the

European Union, because that will help stop the trade across borders. Generally speaking,

however, the present system we have with nation-state controls in this country seems to

11

work reasonably well, and an alternative solution would be to build on that with other

Member States.

The Chairman: I found some difficulty in clarifying my own mind on this. If this proposal

went ahead in the precise terms that are now on the table, would it prevent the British

Government from, for example, banning a substance in advance of the decision being taken

at a European level, or would it risk bringing such matters before the European Court of

Justice? This is absolutely at the heart of the question about subsidiarity. It is not that we

feel that no action needs to be taken at the European level. After all, as you yourself have

said, the present instrument is not very effective. The question is: does this in some way

trammel the ability of the Government here in the circumstances where the evidence here is

very clear that a ban or some measures are justified against a particular substance? Is this

going to prevent you taking action? We, as a Committee, came to the conclusion in the

report we wrote on the EU drugs strategy that on the whole the action on psychoactive

substances ought to be taken at Member State level.

Norman Baker: I will wait for officials to correct me on this matter, but as I understand it

there are differences between the substances the EU has already taken a view on and the

substances on which it has not. If the EU, under the new arrangements, takes a view that a

particular classification or otherwise is appropriate, it then becomes very difficult in those

circumstances for the Member State to do anything about it, because they would have to

find environmental reasons or other narrow reasons to take action.

As I understand it, we are able to take action if the EU has not expressed an opinion on a

substance, but that leaves open the possibility that when it does take a view on matters, that

will be at variance with the view we have taken. I will just ask an official to confirm whether

that is right or not.

12

Daniel Greaves: That is absolutely right: it fetters the discretion of a Member State in the

way the Minister indicated. Let us assume the European Commission has scheduled

something as “moderate”. The UK could not go further and control that as “severe” unless

it seeks a derogation. If the UK has controlled something as criminal and the

European Commission then controls it on a moderate basis, we would need to seek a

derogation. Those derogations are quite narrow, and we think this fettering of our

discretion is something we would seek to challenge through the course of the negotiations.

Stephen Smith: To add to that, Lord Hannay, in Article 114 of the Treaty on the

Functioning of the European Union, paragraphs 4 and 5 provide certain derogations for

Member States. The regime is different for substances that were controlled prior to

introduction of the Union measures. Article 114(4) provides that where there are existing

domestic measures that need to be maintained, then on certain grounds of public security

and public health, which are under Article 36 of the treaty, a Member Statemay apply to the

Commission to adopt different standards. The final say in those circumstances remains with

the Commission. Where, after the adoption of a harmonisation measure, a Member State

wants to adopt different standards, the criteria on which a Member State may do so are

much narrower; they relate to the protection of the environment or the working

environment on the grounds of a problem specific to the Member State arising after the

adoption of the harmonisation measure.

That caveat in Article 114(5) is really aimed at single-market measures and it is expressed in

single-market terms. It does appear to be quite difficult to place control of new

psychoactive substances within that paragraph, and that is part of what we will be arguing in

Brussels.

13

Lord Wasserman: Can I ask a simple question? Speaking for the Commission, if you can,

for a moment, what is the argument for this measure? What are the advantages of going

down this route? Why do they want to do it?

Norman Baker: There are two issues to be considered. The argument for reviewing EU

legislation is quite clear: it does not work properly, because it has not taken account of the

movement, development and creation of these substances on a vast and diverse basis with

quick speed. We are all clear that the EU measurement, as presently existing, does not

work properly.

What is the argument for having it at European Union level? It is only that some people at

the European Union level believe that it is always better to decide these matters across the

European Union, rather than at nation-state level. That is a heart argument, rather than a

head argument. I am quite clear that the free-market arrangements are not engaged or only

marginally engaged, because of the absence of a licit trade.

Lord Wasserman: Is there an operational reason for upgrading to this level? Will it make

it more effective at controlling these? Is there any kind of straightforward crime-fighting

operational reason?

Norman Baker: It could be argued that, if you have EU-level harmonisation across all of the

nation states, it prevents a situation where the transfer of material from one nation state to

another could occur because a substance was controlled in one state and not another

state—particularly, of course, on mainland Europe, where the border arrangements are

different to how they are in this country. You could argue that it would help with law

enforcement.

Q4 Lord Sharkey: Minister, can you tell us whether you are aware of any examples of

localised uses of new psychoactive substances in the UK or in other Member States that

14

could best be dealt with at a local level? Are you aware of any examples where local

measures have resulted in the displacement of harmful substances?

Norman Baker: We have seen quite a number of synthetic cannabinoids in this country,

which mimic the effect of cannabis and were first controlled under the definition in 2010.

We have also seen a number of different variations of cathinone derivatives and

methoxetamine analogues, which were controlled under a generic definition. That is

particular to this country as opposed to other countries. We have seen the need to take

local measures here.

It is also worth pointing out that there are a number of substances that have been reported

to the European Monitoring Centre for Drugs and Drug Addiction by other Member States

that have not been encountered in the UK. The practice does seem to vary across EU

Member States. For example, only 74 out of 270 substances reported by the

European Monitoring Centre for Drugs and Drug Addiction up until 2012 have actually been

encountered by the Home Office forensic early warning system in this country, which is only

27%. I would ask officials to give me information on this, but it may be that some of the

other substances would in fact be caught by the approach we have adopted here, because

we have banned families, and therefore some substances that we are unaware of would

nevertheless be deemed to be banned by the nature of their relationship with other

substances that have already been identified.

However, the fact we have seen only a fraction—around about one quarter—of those

substances in the EU suggests there is quite a lot of localised generation occurring.

Daniel Greaves: To cover that point, Minister, of the drugs that have been encountered in

Europe but not in the UK, the vast majority—around two-thirds—are already covered by

generic controls.

15

Q5 Viscount Bridgeman: Keep your eye on the clock, Minister. In your Explanatory

Memorandum on the Commission’s proposal for a resolution, you say that Article 4 of the

draft Regulation fetters the UK from adopting more stringent measures to control NPS.

You very helpfully stated your position in your opening remarks and in the course of this

meeting. It is also worth noting that the executive summary of the impact assessment

accompanying the Regulation says that the proposal “respects the principle of subsidiarity

because it only addresses those substances that raise problems across the EU and leaves to

the Member States the responsibility to tackle those that are a local problem”. I do not

know where you have anything to add to that.

Norman Baker: I have made my initial thoughts clear, but clearly it is a matter of some

dispute as to whether or not that is a valid argument or not. Those are the sorts of issues

we will be taking forward in our negotiations with other Member States and with the

Commission.

The Chairman: Do you have any indication yet of the reaction of other Member States to

this proposal?

Norman Baker: There are some Member States who share our concern. I mentioned

Ireland in my opening remarks. I do not know whether or not it is appropriate to list them

or whether that would hamper our negotiating.

The Chairman: I have assumed—and perhaps I have been a little naive in assuming this—

that countries at the opposite ends of the toughness spectrum on dealing with illegal drugs—

that is to say countries like Sweden, which criminalises pretty much anything, and countries

like Portugal, which has decriminalised possession and use of a lot of things—would find this

proposal quite difficult, because it would contain within it the possibility that their

completely different approaches would be undermined. Is that a correct assumption?

16

Norman Baker: That is a reasonable assumption to make, yes. The question that follows

from that is this: is there a justification for action at a European Union-level to trump the

approach that Member States themselves have decided on and which they believe suit their

circumstances? I am yet to be persuaded there is an EU reason for pursuing the course they

are taking.

The Earl of Stair: Would the United Kingdom face sanctions or penalties from the

European Commission and/or European Court of Justice if it breached an EU-wide ban on a

particular new psychoactive substance or decided to unilaterally ban a substance not banned

at EU level?

Norman Baker: Yes. As I and my officials have indicated, that would be the result of the

Regulation and the Directive as we understand it is presently proposed. If the EU is going to

occupy the field, as it were, they will set the rules and Member States will have to comply.

The Earl of Stair: You may be aware that this Committee has been considering the Lisbon

block opt-out and the 35 proposals that are coming back in again. Have you given any

consideration to whether this proposal might come into conflict with any of the 35 that you

are opting back into?

Norman Baker: Let me just ask officials to deal with that point, if I may.

Daniel Greaves: In relation to the predecessor of the current Regulation, the Government

have indicated that they do not intend to opt back into that predecessor measure.

Norman Baker: Does that answer your point?

The Earl of Stair: Yes.

The Chairman: I think that is a very useful and important point; that is a very clear answer.

Q6 Lord Morris of Handsworth: Minister, from your opening statement I certainly

formed the view that perhaps the use of these substances is more widespread than is

recognised in their application, whether that is the chemical industry, the building industry or

17

other industries. That said, do you think the Commission’s proposals sufficiently reflect the

efforts to tackle the spread of these new psychoactive substances at other regional levels—

for example, the G8—and at the international level?

Norman Baker: The EU clearly has a role in helping to galvanise international opinion. It is

important that we have a global approach to this as far as possible. The more we can share

information—not just across the European Union but across the world—it is going to be

useful. For example, I know officials have been engaged with China and India on matters to

do with their new psychoactive substances, and it is right that they do so.

This, however, is a world issue. It does not help any particular country if they have citizens

who are becoming ill or dying as a consequence of ingesting or taking substances that are

damaging to health. Every nation state has an interest in sharing information, understanding

the scientific base and working out what can be done by co-operation. There is naturally a

tension between that and the wish of individual nation states to decide their own affairs; I

imagine that is the real nub of where we are.

The Chairman: Presumably, those aspects of the proposals that relate to getting more

rapid and fuller analysis from the EMCDDA and from Europol are ones you would support.

Norman Baker: Yes, indeed.

The Chairman: They make sense and they will presumably help the European Union and

its Member States in wider discussions like in Vienna, in the UN system, to provide evidence

on which of these substances is really dangerous, where they are appearing and so on.

Certainly, that was the initial view of this Committee when we looked at it. The proposals

that the EMCDDA should be given a bigger role and Europol should be brought more into

the consideration of these matters make perfectly good sense. We are talking not so much

about that this morning, but about the decision-making process for actually banning. Is that

correct?

18

Norman Baker: I entirely agree. The opportunity for specialists in the centre of Europe, if I

can put it in those terms, to undertake work and to provide or help form a scientific

consensus is entirely welcome and it will help nation states to make their own decisions. It

will perhaps lead to less variation between Member States as to what decisions they take. It

will help inform Member States. That is an entirely different proposition, of course, from

dictating to Member States what they should and should not do in their own territory.

On that note, Lord Hannay, forgive me: I must not be late for the Home Secretary. I leave

you with my officials.

The Chairman: Yes, absolutely. Thank you very much for coming along so early in your

tenure, and thank you for being so frank with us. It has been extremely helpful. I think my

colleagues would agree that we have all learnt a good deal from your evidence. If we could,

we will continue and complete the last questions with your officials, so that we have a full

picture. Thank you very much.

Norman Baker: Thank you very much.

Q7 Lord Wasserman: Going back to the Schengen question, although the Minister has

to leave, I would like to get it on the record. In what way does the Commission’s proposal

build upon the Schengen convention and trigger the UK’s opt-out? He said that if the

Government succeed in securing recognition for the proposal on Schengen-building

measures, they will want to opt out. What are the consequences of doing that? I want to

get that on the record.

Stephen Smith: If I may, I will take that question in stages. I am sorry for getting into the

specifics of the Schengen agreement. Regarding the first part of the question, Article 76 of

the Schengen agreement says that the contracting parties—this of course includes the UK

and all Member States—shall adopt measures for the control of narcotic drugs and

psychoactive substances. It says that those controls should be adopted where there is a

19

difference in controls for the same substances across the contracting states. It is clear from

the wording of Article 76 that it is targeted at the licit trade.

The United Kingdom participates in that aspect of the Schengen agreement. It is on that

basis that we say that the measure, as drafted, is a Schengen-building measure. In relation to

whether the United Kingdom will opt out or not, to clarify what the Minister said, the

Minister has not reached a decision yet on that issue. We do not yet know what the

Government’s decision will be. Indeed, we want this Committee to have the opportunity to

consider the issues in the way that we have been discussing.

Turning to the second part of the question, may I clarify what the question was?

Lord Wasserman: What would the consequences be of opting out?

Stephen Smith: The consequences of opting out would be that we would not be bound by

the measure; we would not have to participate in it.

Lord Wasserman: Do you regard that as a serious problem?

Stephen Smith: Do I regard that as a serious problem?

Lord Wasserman: Do the Government regard that as a serious problem?

Stephen Smith: Of course, it is difficult to say with any great clarity whether, at this stage,

we regard it as a serious problem. The Minister has not yet reached a view and we have

not yet had cross-government agreement. As to whether we will opt out, it is right to say

that it is the duty of the Commission to secure the widest possible participation in the

Schengen agreement. At the moment, this measure is not recognised as a Schengen-building

measure. On one view, it is unlikely that if it is recognised as a Schengen-building measure,

there will be any great consequence to the UK’s non-participation, given that at this stage it

has not been recognised as a Schengen-building measure. I merely outline some of the

considerations and the framework for our thinking.

Lord Wasserman: There are a number of steps for this to be recognised.

20

The Chairman: I would follow that up to try to understand it a bit better. Because the

Commission has proposed a non-Schengen treaty base and that is the basis on which the

discussion is starting in Brussels today in the Horizontal Drugs Group, if you were unable to

enlist any support for the view that it is a Schengen-building measure, presumably this will go

forward on the present basis, on which it has been put forward by the Commission, and an

attempt will be made to reach a common position, which will then go to the

European Parliament and so on. Have I correctly understood that that is the case and that

therefore in those circumstances, where you are unable to persuade anyone that this is a

Schengen-building measure, the Government’s view of that is a bit academic because it will

not affect the process that goes on in Brussels? Have I got that wrong?

Stephen Smith: The logical conclusion of us wanting the measure recognised as a

Schengen-building measure, taken to its most extreme point, would involve a challenge to

the measure in the Court of Justice. We say it does not recognise that it is a

Schengen-building measure. It is likely that depending on our analysis of the evidence base,

arguments would also be made that it should be a Title V measure, given the illicit rather

than licit nature of the trade. We would not be focusing solely on the Schengen side of

things.

The Chairman: If I have understood the situation rightly, the Government could only

challenge this after the measure was adopted by the Council and the Parliament on a

different basis.

Stephen Smith: Yes, that is absolutely right.

The Chairman: You could not do it ahead of time.

Stephen Smith: No. On adoption, we would have to consider our position and take a

decision at that stage as to whether to challenge the matter before the Court.

21

Q8 Lord Wasserman: Here is a tricky one. Is there any significant practical difference

between opting out under Article 19 of the Schengen agreement and opting in under Title V?

You just mentioned Title V, Protocol 21.

Stephen Smith: As a matter of law, if it is a Schengen-building measure, pursuant to

Title V—

Lord Wasserman: This is assuming that they accept that.

Stephen Smith: If they accept that, as a matter of law, the Schengen opt-out takes

precedence. We would be duty bound; if we wanted to assert an opt-out, it would be the

Schengen opt-out we would assert, rather than the Title V opt-in. To some extent it is

academic, because we are not in either way, but it is a question of both making sure that the

correct legal basis for the measure is identified and making sure that it correctly recognises

whether it is a Schengen-building measure or not.

Lord Wasserman: We are not sure how to get out, but, one way or another, we are

going to try.

Stephen Smith: It is not so much of a case of us being not sure how to get out, although it

appears that there are two options available to us. The Minister would want me to say that

we are not primarily doing this—the recognition of the legal base and whether or not it is a

Schengen-building measure—because we want to get out of it; we have not taken that

decision yet. It is an issue as to whether or not the measure correctly identifies the

appropriate legal base and that it is a Schengen-building measure.

The Chairman: Yes, I thought he was very clear on that point. I was very interested by

that point. It is reflected in the further evidence he gave that there are large parts of this

draft Regulation with which the British Government have no quarrel at all. Quite on the

contrary, it thinks they are quite sensible. The decision is all focused around the

decision-making process to categorise and ban certain substances and who does that, but

22

not the idea that there should be the possibility to make such bans. The question is who

does it. We have a good understanding of that.

Fortunately, we do not have to go to the bottom of this legal basis at this stage, because we

are compelled to address ourselves in the reasoned-opinion context to the legal base that

the Commission has proposed. We are probably likely to pass on that one at this stage,

though we may come back to it in later correspondence with the department.

Q9 Lord Judd: My question very much follows on from what we have been discussing; it

is a supplementary, in a way. If the Government are not opting back in to

Framework Decision 757 and Decision 2005 under Protocol 36, how would that affect their

participation in both proposals? Could you say something about how far you believe the

Regulation could operate satisfactorily without a Directive?

Stephen Smith: Yes. Again, I will break the question down. In relation to the first part of

the question as to how the decision under the 2014 block opt-out affects whether or not to

participate in this measure, we have not reached a final view yet as to whether or not we

are going to participate in this measure. I do not think it is possible to go into a great deal

more detail than that, save to say this: it does not automatically follow that, because we are

opting out, we will not participate in it. By the same token, however, we may. They are

two separate decisions.

Turning to the second part of the question, if we do not participate in the Directive that

imposes the penalties, and let us say we were to participate in the Regulation, we would be

able to impose criminal sanctions pursuant to our own domestic legal framework and we

would not be prohibited from doing that. We do not need to be compelled by the

European Union to adopt criminal penalties; we already have the Misuse of Drugs Act legal

framework, which could be used, as, indeed, it is used at the moment.

23

The Chairman: I am still trying to work out in my mind the possible options that are

available. On this proposal that is on the table now—we are starting to negotiate it in

Brussels and you are not yet decided whether, if it were recognised as a Schengen-building

measure, we would opt in—even if we did not opt in at the opening stage of the negotiation,

would we lose our ability to opt in at the adoption stage? To take an example, if the rather

unattractive options for decision-making in the proposal were changed by the Council and

the Parliament acting together, and the thing then became quite clearly not transferring the

responsibility from Member States but did have some of the other provisions for making

more rapid decisions at an EU level if the Member States could collectively agree, would we

be able to opt in?

Stephen Smith: Yes, we would say we would be able to. Article 4 of Protocol 19 to the

treaties provides that Great Britain and Northern Ireland may at any time request to take

part in all or some of the provisions of the Schengen acquis, so we would say that, to the

extent this measure builds on the Schengen acquis, we are able to participate in those

provisions at any time and we would be able to do so.

The Chairman: Would the other Member States have to agree to that?

Stephen Smith: It would require unanimity of the Council, yes.

The Chairman: They could stop us opting in, but would be unlikely to do so.

Stephen Smith: Yes.

The Chairman: It is the same problem we have come up against in the Protocol 36 issue.

Thank you very much indeed for continuing the evidence session after the Minister’s

departure. We have climbed some way up the learning curve in the process of this, although

I never like to make over-optimistic assertions about understanding all aspects of these

opt-ins, because, at that moment, a black hole tends to open under your feet and you

discover something you had not thought about. Anyway, thank you very much indeed.

24

Stephen Smith: Thank you.