Pat Rabbitte (Dublin South West, Labour)

I propose to share time with Deputies Joe Costello and Aengus Ó Snodaigh.

The Labour Party will support the Criminal Justice (Psychoactive Substances) Bill 2010. The pity is that it took so long for Government to respond to the rash of so-called head shops that have spread across the country. I say this because terrible damage has been done. Some of the young people seduced by what are known as "legal highs" into a drugs abuse lifestyle by seemingly legitimate shops on the high street will now seek to satisfy their newly acquired habit by other means. In the eyes of many young people, the proliferation of these retail outlets on the high street seemed to confer a kind of official approval of the products on sale.

It is disappointing it took more than 12 months for the Minister for Health and Children to produce a statutory instrument to add certain drugs to the list of banned substances under the Misuse of Drugs Act 1997. It was always the case that such a statutory instrument would never be adequate in itself to deal with this phenomenon given the ability of producers or traffickers to adjust the chemical compound. However, in the 12 months hiatus head shops spread like a bushfire and young people became hooked on legal highs. The Government is now playing catch-up. It was because of this need for a speedy response that my Labour Party colleagues, Deputies Joe Costello and Jan O'Sullivan, published the Planning and Development (Amendment) Bill 2010, which was designed to arrest the easy proliferation of these retail outlets and control the easy change of use of conventional shops.

It was always the case that it would be necessary to legally stop new products coming on sale and replacing those that have been banned. It is a feature of the head shop phenomenon that producers have the capacity to reinvent products so as to circumvent the law on controlled drugs. I hope this Bill, designed as it is to outlaw all substances on the market which have psychoactive properties, will finally kill off this growing menace.

As colleagues on all sides of the House will testify, head shops are a menace. Advancing anecdotal evidence from medical sources shows that these unregulated products may be as harmful as cocaine or ecstasy. A number of young people have died as a result of their use of head shop products and the Minister instanced one such recent case.

In this regard, it is interesting to note that lawyers for head shop owners have focused on the definition of the term "psychoactive substance" that is expressed in terms of a "capacity" to cause certain effects, rather than by reference to any immediately identifiable characteristic. They ask "whether there is any substance which might not be regarded as having the capacity to produce one of the effects described (in Section 1) on the human body" and argue that the prospective exclusions envisaged in section 2(2) "implicitly acknowledge that a great deal of substances will be caught by the extremely broad and vague terms of the definition of a psychoactive substance under Section 1 and that it will be necessary to exclude such substances on a piecemeal basis as and when issues arise in relation to them."

It seems that the real innovation in this Bill is this very definition of the term "psychoactive substances". For this reason, I ask the Minister to reassure the House that this broader classification is not vulnerable to constitutional challenge on the basis that it is not possible for a member of the public "to ascertain fairly readily whether or not a given substance actually comes within the definition."

I refer the Minister to the 2008 case of the DPP v. Cagney where the offence of reckless endangerment contrary to the section 13 of the Non-Fatal Offences Against the Person Act of 1997 was considered in detail. Hardiman J. appeared at one point to suggest that offences that were based on recklessness might well be the subject of some form of constitutional challenge in so far as they may be regarded as giving rise to offences that were impermissibly vague. He stated, "From a legal and constitutional point of view, it is a fundamental value that a citizen should know, or at least be able to find out, with some considerable measure of certainty, what precisely is prohibited and what is lawful." While I support the innovation in the description in section 1, I ask the Minister to give the reassurance I seek.

I refer the Minister to the summer edition of "Drugnet Ireland", which features an article commenting on the principle of legality which underpins the criminal law. The article notes that "following this principle, controlled psychoactive substances need to be clearly identified in any legislation that makes their possession or supply a criminal offence. Substances are generally defined individually or in tightly defined groups." The same article acknowledges that policymakers may need to bring new substances under control rapidly and acknowledges that, as a result, lawmakers face certain challenges.

In 1996 and 1997 I had the privilege of putting in place the national drugs strategy, including the local drugs task forces. Subsequent Governments have built on that strategy. The reality, however, is that opiates abuse, which was unknown outside of disadvantaged areas of Dublin in 1996, is now a fact of life in every city and town. I have no doubt the recent advent of a rash of so-called head shops across the country has assisted the spread of the drugs lifestyle.

This week, a double murder in my home area brought to 195 the number of gun murders since 1998, in respect of which there have been 23 convictions. Deputy Shatter noted that in 1997, the Fianna Fáil Party came to power on a platform of zero tolerance. That a double murder can take place in a quiet area, in broad daylight on a summer's evening, shows how far we are from achieving this objective.

Are the products on sale in head shops effectively gateway substances to more serious illegal drug abuse? Some users protest their horror at such a proposition. Nonetheless, of the surprisingly large number of people who flocked to these outlets, many are now hooked and will purchase their drugs from the criminal fraternity. This is not, however, an argument for not proceeding to criminalise a dangerous trade that has no regard for the harm inflicted on its clients or the danger it poses to public health. Nonetheless, the House needs to be reassured that the law we are enacting will be able to withstand challenge.

Central to the Minister's contribution and to the thrust of the Bill is his belief that he is "stepping in now to stymie any re-growth potential in the head shop industry." Clearly he believes that the definition in section 1 will enable him to do that. He believes the capacity for mind-altering or other effects that are described will be the catch-all and that he will manage in that fashion to surmount the difficulty the Minister for Health and Children had in simply adding a list of substances to those controlled under the Misuse of Drugs Act. The feature of these substances is their ability to reinvent themselves, the ability to alter the compound and the ability in very quick time, as has happened, to come up with new products that have new names. I hope the Minister is right and that the measures he is taking will "stymie any re-growth potential in the head shop industry". However, I would like him to address that issue in terms of the safety of the definition he has set out in section 1.

I presume this is the reason for the delay. I do not understand why the Minister for Health and Children took more than a year to make the order she made. On both sides of this House we acknowledge that the capacity under the Misuse of Drugs Act 1997 was limited. However, it would have had an impact nonetheless. All it required was to add to the list of proscribed drugs the ones that were best known on offer in the head shops and yet it took more than a year to do that. The Bill that Deputy Costello introduced was also capable of making a contribution in the discovery of the easy change of use whereby if it was florist's, tobacconist's or whatever one week, it could become a head shop the following week. Our Bill would have done something to help control that. Now that we have reached this point, I hope the Minister's Bill will do what he claims. It will certainly have the full support of the Labour Party.

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