Criminal Justice (Psychoactive Substances) Bill 2010 [Seanad]: Committee and Remaining Stages

Tuesday, 6 July 2010

Dáil Éireann Debate
Vol. 714 No. 4

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An Ceann Comhairle: Information on Seamus Kirk  Zoom on Seamus Kirk  Amendments Nos. 1 to 4, inclusive, and 7 to 9, inclusive, are related and may be discussed together.

Deputy Aengus Ó Snodaigh: Information on Aengus O Snodaigh  Zoom on Aengus O Snodaigh  I move amendment No. 1:

I have a number of amendments. With regard to amendments Nos. 1 and 2, I submitted two versions of amendments that in some ways have the same effect. This was in anticipation of one being ruled out of order for imposing a charge on the Exchequer. I am thankful that, on this occasion, this has not happened.

In legislation I put together earlier this year, I suggested that I do not believe the Minister’s approach to psychoactive substances will produce the desired result, that is, ensure the poisons currently being sold in head shops will no longer be on sale and that the profiteering of head shops will be put to an end.

I suggested in my legislation that we set up an authority, using expertise already available to the State, that would decide whether products on sale are poisonous and can be regulated and licensed in a specific format determined by the legislation. Some of my suggestions are replicated in amendment No. 7, which outlines the role and functions of a body I call the “Non-Medicinal Psychoactive Substances Regulatory Authority”. The amendment outlines what the functions of the authority should be.

I suggest this mechanism as the current mechanism of banning of substances has failed because it takes too long. One should bear in mind the rate at which new products are being produced. The European Monitoring Centre for Drugs and Drug Addiction has suggested and proven that new products are coming on the market at a rate of one per fortnight. The legislation the Minister has proposed is not capable of dealing with that. If one obliged the people who wish to sell the products to fund the proposed authority that would investigate those products, it would have the desired effect of taking the vast majority of the products currently sold in head shops off the shelves. They are poisonous and induce in those ingesting or injecting them a psychoactive experience. We have received communications from doctors, nurses and drugs workers throughout the country attesting to the products’ effects, particularly on young people. I refer to those presenting in hospitals with various psychoses and other medical problems caused by ingesting one or several of the substances in question or by mixing them with legal drugs such as alcohol or certain pharmaceuticals.

When approaching this matter, I considered how the Irish Medicines Board works and the degree to which products for human consumption are tested before being put on the market. In this case, the motive is profit, not medicinal. Since the products are supposedly for recreational purposes, the onus is on those who wish to sell them to pay for the research. This would have [766]the effect of limiting, if not totally removing, these products from public sale. It would also allow such a body to place restrictions on advertising and give it power over where shops can be located. It would be required to support An Garda Síochána and the Customs and Excise so that they could know what products are entering the market.

A flaw in the Bill is that it places an onus on Garda superintendents to have the expertise to identify products. Under the Bill, the Garda must use a civil procedure to force shop owners and those behind the counter to stop selling. In a system in which the products would be properly identified, calling on the requisite expertise would be easier than giving the work to the Forensic Science Laboratory, which is already under considerable pressure dealing with other illegal drugs. Taking the Minister’s route will add to the pressure, as a significant range of substances would need to be dealt with on a case-by-case basis. If head shop owners or others who are first served with a notice and subsequently with a prohibition order challenge them, the forensic lab will be called on to prove that the product being referred to as a psychoactive substance is just that.

Questions arise around the identification of products. They do not have the same consistency and their packaging is changed regularly. We know of warehouses and factories in this city that have repackaged some of this material. What was Snow one day might not be Snow the next. Major issues will arise in respect of whether a court can proceed with a prohibition order against a product that is not defined or licensed. Unless a superintendent purchases the product, identifies its consistencies and ingredients and repeats the exercise at a later date to have a prohibition order applied, the case will fail. However, it would be key if an authority comprising people from the Irish Medicines Board, the Food Safety Authority, the Pharmaceutical Society of Ireland, the Garda, the alcohol and drug research unit of the Health Research Board and the National Advisory Committee on Drugs, NACD, could be put in place and its collective expertise relied upon prior to the application of any prohibition, notice or order. In anticipation of my amendment being refused for incurring a cost on the State, even though what I have suggested would be self-funding, I have recommended that these functions could, at a minimum, be performed by the NACD.

Other Deputies are eager to contribute and time is limited, so I will not speak for long. It is crazy that we have 80 amendments and only 80 minutes in which to deal with them. Psychoactive substances pose a significant issue, one we should have been addressing on a greater scale in recent years and months. We on this side of the House awaited the Minister’s legislation with baited breath. If we had a proper Committee Stage, we could have teased out the vast number of problems that will arise from the Bill.

The head shop industry is lucrative. One shop owner boasted to party members outside his premises that he had a turnover of €20,000 per week. We all know the case of one owner who just happened to have €500,000 in cash in a safe in his building when it burned down. Regrettably, the money did not burn with it and the owner managed to get it back. Some of the characters involved in the industry are unscrupulous and I guarantee the Minister that all of that money was pumped back into it and into the poor unfortunates purchasing Snow, Blow, mephedrone, WHACK and so on. While picketing outside some of those shops, I saw the unfortunate characters abusing these drugs. Some are long-term abusers of other illegal drugs like heroin and cocain and are supplementing therm with products purchased in head shops. No rules or regulations prevent these people from going into those shops.

People in the drug rehabilitation field have significant concerns about the industry’s effects. For this reason, I will not oppose the Bill. I welcome it, but I have problems with its formula[767]tion. In many ways, I wish it well because I will not have the opportunity to table a Bill of my own, but I have concerns and I do not want to tell people in one or two years’ time that I told them so because of legal challenges to the mechanism being introduced by the Minister. He and I received the legal opinion of Garrett Sheehan and Partners, which was supplied to us on behalf of the head shops. I do not agree with that office’s reasoning, but I agree that the offences cannot be vague. According to Garrett Sheehan and Partners, if what constitutes offending ingredients is vague and uncertain, the trial of an alleged offence based on these ingredients is not in due course of law. The legal opinion supplies a number of quotes on the question of vagueness. The definitions in the Bill are vague. Similarly, using civil remedies instead of criminal sanctions is as wrong now as it was in the case of ASBOs. The usage level of ASBOs since their introduction shows that gardaí shy away from using civil law in such a way because of uncertainty regarding the legal footing.

I have major concerns about the Bill.

  6 o’clock

As I said, amendments Nos. 1 to 4, inclusive, and 7 to 9, inclusive, outline a mechanism for ensuring we have a body in the State which can react quickly to new products and can give expert advice to members of An Garda Síochána and the Customs and Excise. It could give advice to the Government too, if there is need for additional legislation to close loopholes behind which the people behind head shops hide at the moment. Some of these people have successfully taken court cases to find loopholes in terms of other activities within the State. I do not want to come back to the Dáil in a couple of months after this Bill has failed the test of the courts.

Obviously, the Attorney General’s advice is to the effect that the Bill is constitutional and that it will stand the test of time in terms of dealing with the scourge that is in our society. I am concerned too that steps have not been taken by the State in the past four years to deal properly with educational aspects, to advise the public and young people in particular about the dangers of head shops and their products. I have had quite a number of replies from the Minister in terms of this, that and the other which were promised, but have not come to fruition, including the pledge of more support programmes in schools such as Walk Tall and others. He appears to forget regarding the Walk Tall programme in schools that the supports have been withdrawn. Another programme which he said he would rely on in the rolling out of advice to teachers, etc., the newly formed professional development for teachers, was to provide support on a regional basis. I have been informed that there is no drug-specific focus to that at all. It is a question of clutching at straws.

The same is true in relation to the special personnel involved in health education. Staff there have been reduced in 2009. Hopefully the Government’s promised rollout of an education and publicity campaign will happen within weeks, as I was told last week, and that not only will there be a legislative attack on head shops, but education and rehabilitation will also be addressed through various campaigns.

Minister for Justice and Law Reform (Deputy Dermot Ahern): Information on Dermot Ahern  Zoom on Dermot Ahern  I fully understand that we are all singing from the same hymn sheet on this issue and I appreciate the work the Deputy has carried out on this particular amendment. However, there are two aspects to this, the first of which is the setting up of another regulatory authority. There has been criticism to the effect that there are too many regulatory authorities in this State. While the Deputy says it would be self-financing, what he proposes in his series of amendments is, in effect, a replication of what already is being carried out by the Department of Health and Children regarding the identification and classification of specified psychoactive substances under the Misuse of Drugs Act. I [768]do not see the merit of setting up another body to do what is already being done by the Department of Health and Children.

As I said in my Second Stage speech, the whole idea of this legislation is designed to be as simple as possible from a criminal viewpoint, while being drafted in such a way that it is fair and acknowledges due process for the people who may be affected by it. We have the criminal sanction, as laid out in the relevant section, as well as the civil procedure in sections 7, 8 and 10, the prohibition notice and closure order. They are calibrated in such a way as to give people involved notice, while taking due account of the rights of those involved who are transacting business.

I cannot accept it. I have not seen a copy of the letter from Sheehan and Company, and I understand it was forwarded directly to the Attorney General’s office. For some reason we cannot locate a copy in the Department but I understand that, having seen the letter, the Attorney General is happy the legislation is constitutional and that the procedures laid down in the Bill in relation to the criminal offence of selling, distributing, importing and exporting of specified psychoactive substances are correct.

That is one aspect, and the other is the civil procedure which ultimately could become a criminal procedure in that a breach of the order of the court would become an offence of itself. I entirely agree with the sentiments expressed by the Deputy about the scourge of the illegal business that is transacted out of head shops. That is the very reason the Government has acted expeditiously in that the Minister for Health and Children brought to Cabinet a month or two ago the proposal to ban specified substances. That is why, in conjunction with An Garda Síochána, the issue of head shops was addressed, where significant raids were carried out on such premises around the country. Out of 102 known to the Garda Síochána, virtually every one was closed. A number, about 40 or so, have either re-opened or are still open. They may very well be selling non-psychoactive substances, but I understand they are being kept under significant review by the Garda.

As a result of the firm view the Government reached in its discussions in relation to this matter, the Minister, Deputy Pat Carey, the Minister for Health and Children and I met on a regular basis over the last couple of months, as did our officials, to see how we might deal with this once and for all, learning from experience in other countries. In those jurisdictions, they had been using misuse of drug-type legislation, but to a certain extent, as soon as they banned one substance, another was introduced. I saw this in the North some time back, when I met with David Ford, MLA, for the first time since he became Minister of Justice. On that day in particular, the UK Government announced it was banning specific substances, including mephedrone. It immediately occurred to me that if Britain and Northern Ireland were banning this, there might be a new aspect to cross-Border shopping if we did not do something quickly in relation to it. I subsequently found out that the UK had announced it was banning these, but had not gone through the procedure of notification under the technical directive required. It had to give three months notice or else use the emergency procedure.

As the House knows, we used the emergency procedure in relation to the banning of the specified substances under the Misuse of Drugs Act, and we also looked at the possibility then of bringing in separate criminal law legislation and using the civil procedure. We referred that to the European Commission when the heads of the Bill were finalised by Government, and the emergency procedure laid down in the directive gave us the approval to proceed. We also referred this to the European Commission when the heads of the Bill were finalised by the Government. The emergency procedure laid down in the directive gave us approval to proceed. As I stated on Second Stage, the Commission also indicated it would bring forward European-wide proposals on the banning of psychoactive substances.

[769]I believe we are ahead of the posse on this. Recently, when I met with my UK counterpart, Theresa May, the UK authorities were very interested in the belt-and-braces approach we adopted in this matter. The UK authorities were having the same difficulty in that when a substance was banned, almost immediately another came on-stream. We saw that already when the Government made the order against specified substances under the Misuse of Drugs Act. We were under no illusion at the time that this would the end of the issue. We were proved correct in that as soon as these substances were banned, new substances such as Whack came on the market. Allied to what we are doing in this legislation, the Minister for Health and Children is proceeding to have the banning of such substances examined under the Misuse of Drugs Act.

My Department and the Department of Health and Children have used the Forensic Science Laboratory to identify psychoactive substances. Under this legislation the laboratory will be designated with the power to use others. While I understand the Deputy’s intention to establish a regulatory agency, I do not have a great record for establishing such authorities. I may have set up a few but, by and large, I have tried to steer away from them. The Department of Health and Children is up to speed in banning specific substances as they come on the market.

This legislation which is relatively simple has been vetted by the Attorney General for its constitutionality. Since Second Stage, I had further discussions with the Attorney General on some of the amendments and he is still happy with the legislative procedures.

I cannot, therefore, accept these amendments.

Deputy Pat Rabbitte: Information on Pat Rabbitte  Zoom on Pat Rabbitte  No one can dispute the analysis set out by Deputy Ó Snodaigh. He put his finger on it when he spoke about the capacity of these products to re-invent themselves. At the same time, I have sympathy with the Minister in saying we do not want to create a new regulatory body unnecessarily which may duplicate an existing one. However, the treatment of this subject by the Minister for Health and Children and her Department is not exactly encouraging, given the length of time it took them to take the simple step of adding certain products to the list of products disallowed under the Misuse of Drugs Act. One would have thought that would have been a relatively simple straightforward exercise compared to the task this Bill sets out to do.

I am somewhat discomfited by the remarks by the Minister that the submission from Garrett Sheehan & Partners, solicitors on behalf of the head shop owners, went AWOL.

Deputy Dermot Ahern: Information on Dermot Ahern  Zoom on Dermot Ahern  It did not go AWOL; it just did not come to the Department.

Deputy Pat Rabbitte: Information on Pat Rabbitte  Zoom on Pat Rabbitte  I am a bit surprised the Minister did not ask the Attorney General to supply him with a copy of it.

Deputy Dermot Ahern: Information on Dermot Ahern  Zoom on Dermot Ahern  I only heard about it.

Deputy Pat Rabbitte: Information on Pat Rabbitte  Zoom on Pat Rabbitte  The Minister did not only hear about it. I told him about it and quoted from it on Second Stage. The Minister should not shake his head on this. I know he believes he has never been wrong about anything but I did raise this on Second Stage.

I would have thought it would have been essential for him to look at it to see how those representing the head shops view the legislation.

Deputy Ó Snodaigh touched on one main issue concerning the apparent vagueness of definitions used in the legislation. The Minister is not doing what his opposite number in the Britain is doing, namely identifying the characteristics that make up a particular product. Rather the [770]Minister is defining it by its capacity to have mind-altering effects. On Second Stage, I described that as the most innovative part of the Bill. I commend it and hope it works. The point, however, I was drawing to the Minister’s attention was that the lawyers advising the head shop owners believe it is too vague and open to challenge, instancing the jurisprudence that supports their contention. The Minister, meanwhile, is relying on messages transferred to him that the Attorney General is happy with the provision. There were arguments raised in the lawyers’ document which merit an examination by the Minister and his faithful servants.

Deputy Dermot Ahern: Information on Dermot Ahern  Zoom on Dermot Ahern  While the Attorney General would agree with the necessity to ensure that offences specified in the criminal aspect are not vague, and having seen the submission from the group lobbying on this, he is still happy with the procedures teased out between our officials. While it is a relatively simple Bill, there are complexities in ensuring it does not have unintended consequences.

As I said on Second Stage, it endeavours to deal with unregulated psychoactive substances while, at the same time, ensuring we do not ban regulated psychoactive substances. The legislation already gives the Minister the power to exclude further products that might find themselves subject to the legislation unintentionally.

Deputy Aengus Ó Snodaigh: Information on Aengus O Snodaigh  Zoom on Aengus O Snodaigh  Amendments Nos. 1, 3, 7 and 8 propose the setting up of a new authority, the non-medicinal psychoactive substances regulatory authority. I am loath to set up new authorities, mindful of the criticism that they are just quangos that very often end up looking after themselves rather than specific interests. In this case, I do not want to add a major cost to the State which is why I propose it would comprise people working in other related public sector bodies.

Amendments Nos. 2, 4 and 9 propose that the roles and functions of the authority should be to identify the substances that it considers to be psychoactive substances for the purposes of the Act, to establish, update and maintain a register of the substances it identifies as being psychoactive substances for the purposes of the Act, and to provide guidance and support to An Garda Síochána and to Customs and Excise. These functions could be added to the remit of an existing committee within the Department, the National Advisory Committee on Drugs, part of whose role is to advise. The reason I suggest this is that the committee has been quite effective, although we have sometimes been critical of the Government’s role in combating the illegal drugs market. The people on the advisory committee have built up an expertise in illegal drugs, which is important in dealing with the issue of head shops. So far, the Department of Health and Children has been slow to react because of the way in which the Misuse of Drugs Acts work and because we must always refer issues upwards to Europe. We must obtain permission from Europe to protect public health, which is ludicrous and should be changed. If the Minister is talking to the Minister for Health and Children or other European Justice Ministers, he should advocate the enabling of faster reactions so that we in Ireland are not prevented from reacting to public health issues.

In addition, there should be some sort of reaction from the EU as a whole. I am a member of the Oireachtas Joint Committee on European Scrutiny. Every fortnight when we have our committee meeting we are given a list of products that have been banned or un-banned under anti-dumping legislation. It seems that China, in particular, is dumping many of these products on the European Union, and I find it strange that steps have not been taken to protect the European Union by the implementation of anti-dumping measures against such companies, as has been done for Chinese steel and a range of other products.

[771]If the Minister is not happy to set up a regulatory authority to deal with this issue without any major cost to the State — and he does not seem to be — would he be willing to consider giving the role of identifying substances to the National Advisory Committee on Drugs? This would not deal with all of my concerns as it would not have all the powers I suggested the regulatory authority should have, but it would help any prosecution under the Minister’s legislation.

It looks as though we will support this Bill. Members of the Garda Síochána require some type of expertise when they go to serve prohibition notices and orders. They need to know they can rely on a source of expertise when they go to court at an early stage for a prohibition order and, later, a closure order. This expertise must be able to stand the test of a court hearing.

Even though the burden of proof is lower under this Bill because it is an aspect of civil rather than criminal law, such expert backup should be available through the National Advisory Committee on Drugs. The Garda must also be able to rely on the Forensic Science Laboratory or, if necessary, a private facility, although I am loath to agree to this. If the forensic laboratory was properly resourced it would be able to deal with such things. That is why I encourage the Minister to consider this again. The problem is that we do not really have time to ask the Minister to consider this again because we have, at this stage, only 35 minutes left to discuss the Bill. However, I ask him to consider in particular amendments Nos. 2, 4 and 9.

I have tabled all these amendments with the aim of being helpful because, ultimately, everyone in the House has the same intention — to get rid of the scourge which is affecting many young people and also older people who should have more sense. These people are clogging up accident and emergency units around the country, and the products being sold here have resulted in the deaths of a number of people, as has been attested to by a coroner recently in one particular case.

Deputy Dermot Ahern: Information on Dermot Ahern  Zoom on Dermot Ahern  I do not want to denigrate the work of the National Advisory Committee on Drugs, which I understand is currently conducting research on head shop products. Obviously its expertise is and will continue to be used by the Department of Health and Children in banning substances under the Misuse of Drugs Act. However, with regard to criminal prosecution, as the Deputy can see from section 3, proof is based on a certificate of analysis from a laboratory that shows the presence of a specific product. The effects of substances on the people involved must obviously be proved by evidence, particularly from medical personnel.

As new psychoactive substances are coming on the market on a daily basis from places as far away as China, we have included in the legislation provisions I feel will be used much more often, including the procedure under which the Garda may serve a prohibition notice which, if not complied with, can be the subject of a court order the breaching of which is a criminal offence. The court can subsequently impose a closure order on a premises. Having considered this, we believe these provisions, which are based on legislation in other areas, particularly that of food safety, will work properly.

Deputy Aengus Ó Snodaigh: Information on Aengus O Snodaigh  Zoom on Aengus O Snodaigh  Given the range of substances we are dealing with and what the Minister has just said about it changing on a daily basis, one body should be in charge of ensuring there is a proper register of such substances and their alternatives. I will be pressing some of these amendments because I believe there is a role for a regulatory authority, although I am willing to compromise in favour of giving some of these functions to the National Advisory Committee on Drugs. As the Minister admitted, the committee is already doing work in this field and should probably be further resourced to ensure this work can continue.

[772]A prohibition notice can be served on a person, which could be somebody working behind the counter in a shop. It is not specified that this should be the owner or manager of the shop or any other particular person. Thus, the Garda might have to serve 20 or 30 notices before the shop eventually closes down.

Amendment put and declared lost.

Deputy Aengus Ó Snodaigh: Information on Aengus O Snodaigh  Zoom on Aengus O Snodaigh  I move amendment No. 2:

Amendment put.

The Committee divided: Tá, 23; Níl, 72.

Information on Thomas P. Broughan  Zoom on Thomas P. Broughan  Broughan, Thomas P. Information on Joan Burton  Zoom on Joan Burton  Burton, Joan.
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Níl
Information on Dermot Ahern  Zoom on Dermot Ahern  Ahern, Dermot. Information on Michael Ahern  Zoom on Michael Ahern  Ahern, Michael.
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Tellers: Tá, Deputies Aengus Ó Snodaigh and Emmet Stagg; Níl, Deputies John Curran and Niall Blaney.

Amendment declared lost.

An Leas-Cheann Comhairle: Information on Brendan Howlin  Zoom on Brendan Howlin  Amendments Nos. 2a and 2b are related and may be taken together by agreement.

Deputy Alan Shatter: Information on Alan Shatter  Zoom on Alan Shatter  I move amendment No. 2a:

This amendment applies to the definition of “psychoactive substance”. That definition would be amended by the insertion of both these amendments to read as follows: “psychoactive substance” means a substance, product, preparation, plant, fungus or natural organism which has, when consumed, inhaled or ingested by a person or applied to the body of any person” the capacity to produce certain effects as detailed in the subsection. This is an appropriate amendment to make in the context of some of the products that are available, and I urge the Minister to accept it. I do not propose to speak to the amendment at length because I am conscious of the limited time available to discuss the Bill.

However, as I have not yet contributed, I wish to make a particular point. In his contribution on Deputy Ó Snodaigh’s amendments, the Minister made reference to the bringing of criminal prosecutions and the making of prohibition orders under the Bill in regard to the products concerned, and to the possibility of making a closure order. I wish to put down a marker in regard to an amendment we are unlikely to reach in the context of the products encompassed within this definition. There is an urgent necessity to close down head shops in order to bring to an end the open sale of these products and to do it as swiftly as possible. In that context, I am concerned about the procedure provided for in the Bill. While Fine Gael fully supports the taking of criminal prosecutions and we can see to some extent the benefit of prohibition orders — although the provision contained in the Bill as drafted is defective in that area — it is our view that we should short-circuit the route provided in the Bill in order to allow the courts to make closure orders in respect of premises providing the psychoactive substances we are dealing with under the terms of this definition.

An Leas-Cheann Comhairle: Information on Brendan Howlin  Zoom on Brendan Howlin  The Deputy has done a good job of expanding beyond the scope of his amendments.

[774]Deputy Alan Shatter: Information on Alan Shatter  Zoom on Alan Shatter  I am about to conclude. I am concerned not only that will we not get an opportunity to discuss this issue in detail but that the definition of “psychoactive substance” is not as far-ranging as it should be, which is why we have proposed these amendments. The central objective of this Bill should not only be to prosecute those who sell these substances that are so dangerous to vulnerable young people but also to close the shops in which they are sold. I hope the Minister will indicate a willingness to take on board at least some of the Opposition amendments which we may not reach because the Bill is being foreclosed by guillotine, particularly the amendment tabled to allow for the making of closure orders with swiftness by the courts in the terms proposed by Fine Gael.

Deputy Aengus Ó Snodaigh: Information on Aengus O Snodaigh  Zoom on Aengus O Snodaigh  I support Deputy Shatter’s amendments and propose that a reference to “injected” would further enhance the definition of “psychoactive substance”. I am aware of cases where methadrone, for example, is being injected by users causing horrendous abscesses. I would be satisfied if the Minister could show that “consumed” covers all those eventualities, but for clarity of law, Deputy Shatter’s amendments are reasonable and the Minister might also consider further amending the definition to include a reference to “injected”.

Deputy Pat Rabbitte: Information on Pat Rabbitte  Zoom on Pat Rabbitte  I am not always sure what one does with these products, but apparently extraordinary things can be done with them. I am told that Deputy Shatter’s proposed inclusion of “applied to the body of any person” and the reference to “ingested” are appropriate, so I am pleased to support the amendments. This is the definitions sections and the definition of “psychoactive substance” is central to that; it is what the Bill is all about.

The document that is somewhere in the Attorney General’s office and which the Minister did not get to see raises a question that concerns me and which I have raised before. In referring to the definition of “psychoactive substance” in the Bill, that document states:

This begs the question as to whether there is any substance which might not be regarded as having the capacity to produce one of the effects described on the human body. I sincerely hope that the Minster’s approach to this is beyond challenge or, if not, that it would be capable of resisting any challenge. Since we have this definition for which the Minister has opted, the amendments from Deputy Shatter which refer to “ingest” or “rub on the body” are appropriate additions.

Deputy Dermot Ahern: Information on Dermot Ahern  Zoom on Dermot Ahern  I do not believe we are very far from each other in this regard because section 3 contains a definition of consumption which already explicitly includes orally, injecting and inhaling. I am unsure how an addition elsewhere would add to what we have in place already. My advice is that the amendment is unnecessary.

I refer to the issue raised by Deputy Shatter concerning the closure order. I noted the remarks of Deputy Kenny on the Order of Business. We examined closely what the Deputy suggested with regard to the closure order. Indeed, we examined the matter before we published the Bill. However, the strong advice of the Attorney General is that we must ensure we are compliant with matters of constitutionality related to interfering with someone’s right to [775]trade. Therefore, the calibrated procedure of prohibition notice, prohibition order and, ultimately, a closure order is preferable. In the interests of proportionality, due process and fair procedure, the strong advice from the Attorney General is that were we to proceed other than as suggested in the Bill the civil procedure could be open to challenge. While I am inclined to agree with the procedure, I have been obliged to take the advice provided the Attorney General not only before the Bill was drafted but subsequently. This is a point on which there was some discussion. Obviously, we wish to have them closed down quickly. I do not suggest they would not be closed down quickly otherwise. I refer to the procedure of serving a prohibition notice, specifying a period, which could be a relatively short time, and going to court to get a prohibition order. Any subsequent breach of that order and the possibility of a closure order is a matter for the court. We believe this procedure and the way in which it is set out and calibrated in this way does not breach the constitutional rights of those involved and is as speedy as possible.

An Leas-Cheann Comhairle: Information on Brendan Howlin  Zoom on Brendan Howlin  I wish to keep the debate on track and on this particular amendment.

Deputy Dermot Ahern: Information on Dermot Ahern  Zoom on Dermot Ahern  I refer again to amendments Nos. 2a and 2b. I do not believe the proposed measures are necessary and I respectfully suggest the measures already in the Bill cover all methods involving consumption.

Deputy Pat Rabbitte: Information on Pat Rabbitte  Zoom on Pat Rabbitte  Where is consumption spelled out in section 3?

Deputy Dermot Ahern: Information on Dermot Ahern  Zoom on Dermot Ahern  It is in section 1.

Deputy Pat Rabbitte: Information on Pat Rabbitte  Zoom on Pat Rabbitte  The Minister said it was section 3.

Deputy Dermot Ahern: Information on Dermot Ahern  Zoom on Dermot Ahern  It is on page 3. I understood that was what I said.

An Leas-Cheann Comhairle: Information on Brendan Howlin  Zoom on Brendan Howlin  I am keen to make some progress. How stands the amendment?

Deputy Alan Shatter: Information on Alan Shatter  Zoom on Alan Shatter  I might reply very briefly to what the Minister has said.

An Leas-Cheann Comhairle: Information on Brendan Howlin  Zoom on Brendan Howlin  I would be obliged if Deputies would not debate an amendment we have not reached. I have allowed the Deputy to raise the point in his contribution.

Deputy Alan Shatter: Information on Alan Shatter  Zoom on Alan Shatter  I might respond in one sentence to that but I wish to deal with this amendment. In the context of the definition, this is the only time we are going to get to discuss it. I believe the amendment we propose is of some additional assistance in addressing the issue of being more specific as to the nature of the substance. I was hoping the Minister would support it but I will not delay the House by putting it to a formal vote because I want us to move on. As this is the only opportunity we will get to discuss this particular definition, like Deputy Rabbitte, I hope the advice the Minister is getting is correct. I want this Bill to succeed. I refer to the difference between the Minister and myself on the issue. He mentioned a more calibrated approach as he goes through criminal prosecutions and prohibition orders. I do not believe that approach will result in the closure of a single head shop this side of next Christmas. That is the problem and it is something we must deal with more urgently. I have urged the Minister to adopt the approach we have proposed.

The font of all wisdom in these areas does not rest in the Attorney General’s office. There has been many a court case in which that has been established. I hope the definition of psychoactive substance is linked into the definition of consumption in a way that works. However, [776]I wish to draw the Minister’s attention to a reality with regard to the definition. This is where I hold concerns about the broad nature of it, not as a consequence of any briefing I have had from the offices of Sheehan & Co. Solicitors or anyone else, because I have had no such briefing from them, but in the context of the definition.

If we take the partial definition, “psychoactive substance” means a substance product or preparation that has the capacity to produce stimulation of the central nervous system or cause a state of dependence. Could alcohol not fall within that definition? Is that not the problem with that definition? I point this out in the context of my hope that the legislation is successful in achieving the Minister’s objective but I have a concern in the context of this definition that it is unduly broad and that there is a need to make it more specific. In the short time we had available to us, we sought to do so by producing the amendment tabled. I have a concern that the definition is too broad, that this will give rise to legal difficulties and that the legislation contains so many calibrated avenues and road maps to be travelled that it will not achieve the Minister’s objective. The objective should be to close down head shops that are selling products dangerous to young people.

Deputy Dermot Ahern: Information on Dermot Ahern  Zoom on Dermot Ahern  Deputy Shatter raised the issue about the definition of a psychoactive substance in section 1. He maintains the reference to the capacity to produce stimulation or depression or to cause a state of dependence could include alcohol. However, alcohol is specifically excluded in section 2(1)(c) which refers to intoxicating liquor within the meaning of section 77 of the Licensing Act 1872. I suggest alcohol cannot be taken to be a psychoactive substance based on the legislation as drafted.

  7 o’clock

I refer to what I have termed the calibrated response in respect of the civil procedure. I am unsure whether I took up the Deputy’s point correctly. There are two aspects to this approach. First, the criminal offence of selling a psychoactive substance and being reckless in respect of whether that substance is being acquired or supplied for human consumption. The legislation indicates those involved shall be guilty of an offence. Reference is also made to importation etc. That is a criminal offence under the Bill. Second, there is a civil procedure. It is not the case that one begins with a criminal offence and then proceeds to a civil procedure. The Deputy is probably aware of this but I make the point in case anyone examining the Deputy’s last comments might believe the measures were based on a criminal conviction initially.

Deputy Alan Shatter: Information on Alan Shatter  Zoom on Alan Shatter  It is possible to do either.

Deputy Dermot Ahern: Information on Dermot Ahern  Zoom on Dermot Ahern  We are trying to deal with the civil procedure, which involves the lesser burden of proof. It involves serving a notice, proving that notice has not been complied with and the failure to comply with that notice then becomes a criminal offence.

An Leas-Cheann Comhairle: Information on Brendan Howlin  Zoom on Brendan Howlin  As it is now 7 p.m., I am required to put the following question in accordance with the order of the Dáil of this day:

Question put and agreed to.


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