Dermot Ahern (Louth, Fianna Fail)

I am grateful for the general welcome from all sides of the House for this legislation and thank Deputies for their comments on it. There was criticism in some of the comments regarding the alleged lack of action by the Government in this respect but I reject that criticism. As I said earlier, when we contacted the EU Commission on this issue it indicated that it was at the preparation stage of having a European-wide proposal for a directive in regard to this area; therefore, we are ahead of it in that regard. Equally, when I travelled to the United Kingdom recently where I met my ministerial counterpart, Theresa May, one of the questions the people there specifically asked was to see what we were doing and they were intrigued with the novel way in which we were addressing this issue both, as they were, in dealing with it in a specific way from the point of view of the Misuse of Drugs Act but also by adopting a belt and braces or the catch-all approach with the introduction of criminal legislation. A considerable part of the discussion I had with my counterpart, Theresa May, which was my first meeting with her, was focused on the authorities in the UK wanting to have contact with our officials subsequently to go through the type of legislation we are bringing in.

There was also some criticism on the issue of gangland crime. I do not think there has been any person who has been as active as me as Minister in addressing this issue in recent times. While Deputies in Fine Gael approved and welcomed the legislation I brought through, particularly the gangland crime legislation, the Criminal Justice (Amendment) Act 2009, known also as the surveillance Act, this time last year they wanted its introduction deferred until after the summer months when the Dáil was not in session. I was adamant that it should proceed quickly to ensure it would be on the Statute Book in view of the fact that criminal law is not retrospective. If anything had happened over the summer months, the criticism of the Government, and of politicians generally, would have been that we would have been on our holidays while some awful event had happened and this legislation was not in place.

The Labour Party, as usual, spoke out of both sides of its mouth in that it called for action but then when it got action - I put on the record at that time quotes from people such as Deputies Rabbitte and Gilmore who called for action on tackling gangland crime - it, in effect, opposed it although ultimately it approved it but again it found fault with it. Even just last week, Deputy Rabbitte seemed to suggest that we did not require the renewal of the gangland legislation, as we are required under the legislation to renew it every year.

However, we on this side of the House do not have the luxury of simply proposing provisions without examining them thoroughly. The Office of the Attorney General has long experience in vetting legislation to ascertain its constitutionality, and every amendment proposed by the Opposition, from whichever party, must be reviewed by that office.

I would have liked to see the legislation going further in regard to the issue of prohibitions and closures, as Deputy Shatter proposed. However, as I said, we do not have the luxury of putting down amendments with no thought for the implications in terms of constitutionality. There are certainly constitutional issues in regard to the ability of the Garda Síochána to enter private property and take action on foot of that. Everything must be carefully calibrated, as we have done in this legislation. We on this side of the House would be delighted to allow the Garda to go in immediately and close these enterprises down but, as Deputy Ó Snodaigh pointed out, given the lucrative nature of this trade there will undoubtedly be people hell bent on testing the constitutionality and legality of the legislation. That is why, in the framing of the prohibition notice, prohibition order and closure order provisions, we had to be extremely careful not to tramp on the constitutional guarantees in regard to the right to private property and the assumption of innocence until proven guilty. However, I will give due consideration to any Opposition amendments in this regard. Deputy Shatter has indicated his intention to introduce such proposals.

Deputy Rabbitte raised concerns about the definition of psychoactive substances and the danger of inadvertently including harmless substances within the scope of this legislation. We were very careful about this issue in the drafting of the Bill, taking advice from the Department of Enterprise, Trade and Innovation and several other Departments on the types of substances that might inadvertently and erroneously come within its scope. That is why we inserted section 2 which excludes certain medicinal products and other items. The Bill also gives the Minister power, in the unlikely event that unintended consequences were to arise from the provisions of the Bill, to exclude the substance in question. The definition we have included is based on, and build upon, the definition contained in Article 24A1 of the 1971 United Nations Convention on Psychotropic Substances.

Deputy Costello raised the issue of products that may be licensed in other European Union member states and asked whether that would have implications for free trade. The Bill expressly provides for the exclusion of medicinal products as defined by the Irish Medicines Board. If a medicinal product is appropriately authorised elsewhere in the European Union it will be outside the scope of the Bill.

Deputy Ó Snodaigh referred to the absence of provision for expertise to determine whether a substance is psychoactive. The Bill does not operate on the basis of identifying particular substances; that is a matter for the courts to decide on a case-by-case basis. We have taken a more general approach in the Bill. We have had detailed discussions with the forensic science laboratory which in turn has had discussions with other experts. However, because new substances will continue to emerge form the product line, those experts will remain on a learning curve. They will have to acquaint themselves with best international information as to what is happening in China, for example, and other places where these types of substances are produced. They will have to learn from best international practice and be at the top of their game if they are to prove in court that a new substance is a psychoactive substance intended for human consumption, according to the definition in this legislation.

Deputies Catherine Byrne and Reilly raised the issue of the sale of products on the Internet. As I said, the Bill proposes to make it an offence to sell, import or export psychoactive substances for human consumption, including by means of electronic communication or via the Internet. The Customs and Excise will be responsible for monitoring the entry into the State of products through our airports and ports. Some of the websites in question are hosted from outside the State and it is virtually impossible to stop them. We can only have a significant impact from a legislative and legal point of view in terms of closing down websites that are hosted in Ireland, but it is a problem if they are hosted abroad. The best way to deal with the practice is to intercept the products as they enter the country. As I said, we will endeavour to stymie the growth in this form of trade. If necessary, we will come back to the Oireachtas if we conclude that further action is required. We are chasing a moving target.

Deputy Reilly suggested that the Minister for the Environment, Heritage and Local Government should amend planning laws to deal with head shops. The Minister of State, Deputy Curran, dealt with this issue in his contribution, and it is being reviewed by several Ministers. The Minister for Health and Children, for example, does not have only the Misuse of Drugs Act to deal with head shops; she also has a range of other legislation at her disposal, including the Poisons Act and health and safety legislation. These have been reviewed by the environmental health officers attached to the HSE who have been active in this area in conjunction with the Garda.

Deputy Kenneally asked why possession is not an offence under the Bill. There are difficulties in doing so as a consequence of the general nature of the Bill. For instance, a criminal offence of possession would criminalise the possession of certain industrial substances which may have a psychoactive effect. The intention of the Bill is not to criminalise legitimate business but rather to target the activities of those who sell unregulated psychoactive substances for human consumption. We are not targeting regulated psychoactive substances that are not for human consumption.

I look forward to the subsequent Stages of the Bill which will be taken next Tuesday. As I said, I will be as accommodating as possible in regard to amendments. Ultimately, however, I am obliged to accept the advice of the Attorney General as the constitutional lawyer attached to the Government who gives advice on the legislation we put through the House.

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