We have had an interesting exchange of views, resulting in the Government and the Opposition agreeing with the European Scrutiny Committee’s assessment that there is a breach of the principle of subsidiarity in these matters. There are two issues: the draft regulation and the draft directive, both of which have already been described, so there is no need for me to go into them in detail.
The draft regulation would fetter the flexibility that member states currently enjoy to determine the level of risk associated with a new psychoactive substance, and to implement appropriate national control measures. The draft directive, on the other hand, would require member states to introduce criminal sanctions for a new psychoactive substance deemed by the Commission to present a severe health, social and safety risk.
The draft reasoned opinion concludes that the proposed legislation breaches the principle of subsidiarity simply because it would fetter member states’ action to an unacceptable degree. It highlighted the following concerns: the absence of reliable market information on the volume
of trade in new psychoactive substances for legitimate rather than recreational use; different cultural and societal attitudes towards the regulation of drugs and new psychoactive substances and the need to accommodate different regulatory approaches at national level; the limited scope for unilateral action by a member state when faced with evidence of social or health harms which exceed the level of risk identified by the Commission when implementing market restrictions; and insufficient evidence of disruption to legitimate trade, or displacement of the harmful effects of the new psychoactive substances, to warrant market intervention on the scale envisaged in the proposed measures or the imposition of additional constraints on members states’ freedom of action.
We have had a number of successes in the European Scrutiny Committee’s proposals for reasoned opinions: we debated the proposal for a European prosecutor’s office and last week it was withdrawn by the Commission, and the Monti II provision in relation to small and medium-sized businesses. We are making some progress. The reality, however, is that we still have to get a substantial number of member states to agree to our proposals on the reasoned opinion. We have a decent track record and will continue to argue the case on the basis of analysis, logic and common sense. Having said that, I do not think there is anything I need to do to repeat the remarks that have already been made, because the Government, the Opposition and the ESC all agree.