Dermot Ahern (Louth, Fianna Fail)

There is no doubt we are in an era when increasingly we need to look for new approaches in tackling new problems. I decided some months ago that a new approach was necessary to deal with the problem of head shops which have been emerging in our society in the past year or more. The Bill before us is such a new approach. It is a robust, innovative and urgent approach. In it I am providing that it will be an offence to sell, import or export unregulated psychoactive substances for human consumption. In addition, and very importantly, I am providing powers for the gardaí and the courts to issue prohibition and closure orders in respect of persons or premises where the sale of such products continues despite notice to cease.

in the past year or so, we have seen head shops proliferate in our society. These shops appeared on the main streets and in the suburbs of our towns and cities. They sprang up in villages and towns throughout the country. They all had the same characteristic in common - the sale of a range of unregulated psychoactive substances. This trade operates behind a veil of technical legality with products marketed as "legal highs". This gives the impression that they are safe to use. People, in particular teenagers and young adults, who would not ordinarily take illegal drugs, are thus enticed into purchasing and consuming them. They also attract the drug-using population who consume these products as alternatives or in addition to controlled drugs such as cannabis, cocaine and heroin. The products are sold with no information on content and no directions for use. Needless to say, no standards of quality control or safety are applied. On the contrary, there is a deliberate attempt at circumventing the legal framework for control of medicinal products by labelling them as "bath salts" or "plant food".

There are serious medical concerns that these unregulated products may be as harmful as illegal drugs such as cocaine and ecstasy. Our already overburdened hospitals are unfortunately seeing the health consequences, with many young people presenting having abused these unregulated products. A coroner in Kildare recently warned of the dangers of head shop products following the tragic death of a 19 year old woman who had taken two head shop products, mephedrone and butylone, together with prescribed drugs, alcohol and heroin. I should mention that the two products in question have since been controlled under the Misuse of Drugs Acts by the Minister for Health and Children.

The health and safety concern is very important and it is the main motivating factor for this Bill, but it is not my only concern. I am seriously concerned that head shops are acting as an unprecedented gateway to illegal drug abuse and criminality, especially for our young people.

The House will not be surprised therefore to hear that I put little store by the argument that it is somehow wrong to criminalise the sale of these products because by so doing we increase the market potential for drug traffickers. These products can be equal to controlled drugs in the threat they present to public health and safety. I believe that those who trade in them should not be allowed to escape the application of the law. Nor should they be allowed to avail of any veneer of respectability. It is a dangerous trade which operates without regard to the consequences for its customers or for society in terms of health and safety, addiction and criminality.

This Bill is but one part of the Government's multi-pronged approach targeting the activities of head shops. The primary vehicles for regulating psychoactive substances are, and will remain, the Misuse of Drugs Acts 1977 to 2007. On foot of the Government order of 11 May, the Minister for Health and Children made the necessary statutory instruments to make the possession and sale of certain substances subject to criminal sanctions under the Misuse of Drugs Acts. The regulations covered the mainstream substances commonly being sold in head shops - cannabinoids, BZP derivatives, mephedrone, methylone and related cathinones.

I am advised that following the making of these orders, of the 102 head shops then open, many closed but about 36 re-opened shortly afterwards reportedly selling different substances. The tally of head shops re-opening has since risen and I understand the records of the Garda National Drugs Unit indicate that 48 head shops were trading nationwide on 10 June although this figure had reduced to 44 on 14 June.

Given the versatile and changing nature of the trade in psychoactive substances, such fluctuation in numbers operating does not surprise me. I am not, however, prepared to sit back and resign myself to counting head shops. On the contrary, this Bill is an indication of my determination to stop this trade in its tracks. Experience has shown that new psychoactive substances can quickly emerge. There is now a big international market for these products and skilled chemists in places as far away as China are ready and eager to use their expertise to create new products in response to the lure of large profit associated with this market. We have seen how quickly products such as "Whack" and "Amplified" have come onto the Irish market following the banning of mephedrone and other such substances by the Minister for Health and Children. The National Poisons Information Centre has received reports of patients presenting to hospital emergency departments with symptoms of extreme agitation and anxiety having consumed these products. The Minister for Health and Children is monitoring the sale of new products as they emerge with a view to listing them as controlled drugs if that proves necessary. However, I understand some of the newer products such as "Whack" contain substances with anaesthetic effects and can be, and are being, removed from the market by the Irish Medicines Board. The speedy emergence of such substances is indicative of the need for a more general, catch-all approach in the criminal law to the sale of dangerous psychoactive substances. It is clear there always will be a time lag before such new substances can be made subject to control under the Misuse of Drugs Acts.

The approach taken in the Bill is necessary to criminalise the sale of psychoactive substances as they emerge. I am acting quickly to prevent the sale of unsafe products, especially to young people. I am also stepping in now to stymie any re-growth potential in the head shop industry. The focus of the Bill is on seeking to ensure the sale or supply of substances for human consumption, which may not be specifically proscribed under the Misuse of Drugs Act but which have psychoactive effect, will be a criminal offence. That offence can be prosecuted as an arrestable offence, attracting a penalty of up to five years imprisonment. This puts the offence into the serious category and, as such, it will be automatically subject to various powers such as the power of arrest. The main offences under this Act are also being included in the Schedule to the Bail Act which means they are being treated as serious offences for the purposes of that Act, that is, as offences for which bail can be refused.

Some criticism has been voiced that this Bill will not work because it does not incorporate a structure to bring together expertise to identify psychoactive substances. This criticism ignores the fact that under existing arrangements, when considering whether substances should be controlled under the Misuse of Drugs Act, the Minister for Health and Children already has access to expertise on drug misuse and harm. Controlling substances under the Misuse of Drugs Act is an ongoing process which involves national and international co-operation and engagement. Substances are scheduled under the Act in accordance with Ireland's obligations under international conventions and EU Council decisions or where there is evidence the substances are causing significant harm to public health. At a national level, the Department of Health and Children works closely with my Department, the Office of the Minister for Drugs, the National Advisory Committee on Drugs, the Garda Síochána, the customs service, the forensic science laboratory, the Irish Medicines Board, the Health Research Board and others to monitor emerging trends in the development of new psychoactive substances. At an international level, the Department engages with the European Monitoring Centre for Drugs and Drug Addiction and the United Nations Office of Drug Control and Crime Prevention regarding international trends in the emergence of new substances and drug control.

I will not, particularly given the current state of the public finances, contemplate the duplication of the extensive controls operated under the Misuse of Drugs Acts. This Bill is a recognition that while the specific identification and control of substances is invaluable as a long-term approach, it is not sufficient on its own to provide an instant response to the constantly evolving trade in unregulated psychoactive substances. No matter what expertise is available, the imposition of controls on specified psychoactive substances will be always left playing catch-up with the creative capacity of the head shop industry constantly to develop new products. It is for this reason that I am proposing in this Bill a more immediate catch-all approach to ensure the criminal law can deal with those who seek to undermine the controls operated by the Minister for Health and Children on the sale of dangerous psychoactive substances.

A particularly important aspect of the Bill is its provision of an immediate legal weapon to the Garda Síochána and to the courts. The Garda can apply to the courts for a prohibition order prohibiting any person from selling a psychoactive substance for human consumption where that person refuses to obey a Garda prohibition notice to cease such trade. The procedure in question, unlike a criminal prosecution, is a civil procedure. It is similar to procedures in other legislation, such as the Food Safety Authority of Ireland Act 1998, which provide for immediate action in circumstances where public health or safety may be at risk. Accordingly, the onus of proof is on the balance of probabilities which is less onerous than that applying to the prosecution of criminal offences. Breach of the order will be a criminal offence. In addition, I am providing that the court can order the closure of a premises where an order has been breached, in addition to any other penalty the court may impose.

Under the terms of this Bill, those who sell unregulated potentially dangerous substances for their psychoactive effect will also risk criminal investigation and prosecution. The prosecution may take time to gather the necessary criminal evidence, but head shop traders should be under no illusion. Those who thought they were safe to peddle newly marketed substances may also find themselves in due course defending their position before the criminal courts. The legislation is designed in order to have no impact on legitimate trade and will not apply to products that can be legally sold for human consumption, such as medicines and food.

The Bill is intended to operate in conjunction with various other avenues being pursued, including regulations under the Misuse of Drugs Acts. Several such measures are already in train. The activities of head shops are being closely monitored on an ongoing basis by the Garda Síochána and Revenue's customs service with a view to ensuring no substances that are currently illegal are being sold. The Health Service Executive, in association with partner agencies under the drugs strategy, is finalising a national drugs awareness campaign that will focus on the dangers of psychoactive substances available through head shops. The National Advisory Committee on Drugs has been asked to carry out some targeted research in this area. In addition, as part of this multi-pronged approach, relevant Government agencies are reviewing existing legislative provisions in order to establish whether head shops are liable for prosecution under a range of legislation.

The general scheme of the Bill was notified to the European Commission under the technical standards directives. That notification invoked the emergency procedure which means the usual three-month stand-still period would not apply. On 18 June the Commission indicated its acceptance of the need for urgent legislation on this matter. Moreover, its letter indicated that the Commission itself is moving to introduce proposals for a directive in regard to head shops that will apply throughout the European Union. We are ahead of the posse in this respect.

I will now turn to the main provisions of the legislation. Section 1defines terms used in the Bill. Section 2excludes from the scope of the Bill products which are subject to licence, authorisation or other control. These include medicinal products, animal remedies, intoxicating liquor, tobacco and food. Controlled drugs, which are subject to the Misuse of Drugs Acts, are also excluded to avoid duplication. The section also provides that the Minister can, by order, exclude other products. This provision has been included in the unlikely event that a legitimate substance inadvertently comes within the scope of the legislation.

Section 3provides for the offences of selling, importing or exporting psychoactive substances for human consumption. Subsection (1) provides for the offence of selling a psychoactive substance, knowing or being reckless as to whether it is being acquired or supplied for human consumption. The definition of selling is broad and by means of section 1 includes supplying, distributing, offering for sale and being in possession for sale. It includes sale over the Internet or home delivery services within this jurisdiction. Subsection (2) provides that it will be an offence to import or export a psychoactive substance for human consumption. Subsection (3) provides that where it is proved a person has sold, imported or exported apsychoactive substance, a court can apply a rebuttable presumption that the accused knew or was reckless as to whether the substance was being supplied or acquired for human consumption. In reaching a decision on whether such a presumption should operate, the court can have regard to indications that the substance may have psychoactive effects, the presence of drugs paraphernalia at the place to which the proceedings for the offence relate and whether there is a reasonable alternative lawful purpose for the substance, taking into account its cost and quantity.

Subsection (4) provides that the court may be satisfied of the matters referred to in subsection (3) notwithstanding any oral or written statement or indication given on packaging and so on that the substance in question is not psychoactive or is not intended or fit for human consumption. Subsection (5) provides that it is a defence for a person accused of an offence under this section to prove that he or she is a person referred to in section 6(2), which ensures the lawful professional activities of doctors, pharmacists and so on will be outside the scope of the offence provisions.

Section 4creates the offence of selling an object knowing that it will be used for cultivation by hydroponic means in contravention of section 17 of the Misuse of Drugs Act 1977. Hydroponic cultivation is the cultivation of plants in liquid containing nutrients, without soil, and under controlled conditions of light, temperature and humidity. This method of cultivation is known to be used for the purpose of growing cannabis indoors. Hydroponic equipment is also known to be one of the products commonly sold in head shops. I am aware, however, that this type of equipment can be sold by garden centres for legitimate purposes. For this reason, I am providing that it is an offence to sell such products only when the person knows the product will be used for the cultivation of substances in contravention of the Misuse of Drugs Act.

In the general scheme of this Bill, I provided for an offence of selling any pipe or other object made or adapted for use in connection with the consumption of a controlled drug or psychoactive substance. However, in view of the urgency of the Bill, I have decided not to proceed with this provision as there are difficulties to be overcome in dealing with the fact that such objects can have legitimate uses.

Section 5provides for the offence of advertising a psychoactive substance or object to which section 4 applies. Section 5(1) provides that it will be an offence for a person to publish or display any advertisement knowing or being reckless as to whether the advertisement indicates an intention to sell, import or export a psychoactive substance for human consumption or to sell any object for use in cultivation by hydroponic means in contravention of section 17 of the Act of 1977. It also will be an offence to publish an advertisement promoting the consumption of a substance for its psychoactive effect and providing information on how or where a psychoactive substance may be obtained. It also will be an offence to publish an advertisement providing information on how to cultivate by hydroponic means in contravention of section 17 of the Act of 1977. Section 5(2) provides that it is a defence for a person accused of an offence under this section to prove that he or she is a person referred in section 6.

Section 6provides that certain categories of persons, such as doctors, dentists, etc. who sell or advertise psychoactive substances will not commit an offence if their actions are lawful for the purpose of their profession.

Section 7 provides that a garda superintendent, or higher, may serve a prohibition notice on a person where he or she believes the person is selling, importing or exporting psychoactive substances for human consumption, selling hydroponic equipment or advertising psychoactive substances. A prohibition notice will specify the activities in respect of which the garda opinion is held and the reasons for it. It will direct the person to cease immediately the activities specified in the notice and will set out the possible consequences of failure to comply with the direction specified in the notice.

Section 8 provides that where a garda superintendent, or higher, is of the opinion that a person is not in compliance with a direction contained in a prohibition notice, he or she may apply to the District Court for an order prohibiting the person from engaging in specified activities. The application must be on notice to the person concerned. The court may make a prohibition order if it is satisfied that the person concerned has engaged in an activity specified in the prohibition notice and it is necessary to prevent the person from continuing to engage in such activity. The circumstances which the court may take into account include indications that the substance may have psychoactive effects, the presence of drugs paraphernalia at the place to which the application relates and whether there is a reasonable alternative lawful purpose for the substance or object, taking into account its cost and quantity. The court may decide not to make a prohibition order where it considers that making the order would be unjust in all the circumstances of the case.

This is a civil rather than criminal procedure so the proof required will be on the balance of probabilities rather than beyond reasonable doubt. A person who fails to comply with a prohibition order will be guilty of an offence and a person who is the subject of a prohibition order may appeal the order to the Circuit Court.

Section 9 makes provision for the variation of prohibition orders by the District Court.

Section 10provides that where a person is convicted of any of the main offences under the Act, including the offence under section 8(6) of failing to comply with a prohibition order, the court may make a closure order in relation to a specified place. A person who fails to comply with a closure order will be guilty of an offence.

Section 11 provides that the District Court may vary or discharge a closure order on application by the occupier or owner of the place concerned or a garda superintendent and sets out the procedure for such applications. Sections 12, 13 and 16 provide for Garda powers to search suspects and search and seize places, vehicles, etc. Section 14 extends those powers to officers of Customs and Excise in cases of unlawful importation or exportation of psychoactive substances. I will table amendments to this section to fully ensure that there is no gap in the necessary powers available to officers of Customs and Excise to deal with this trade. Section 15provides for an offence of obstructing a garda or customs officer in the exercise of his or her functions under the Bill.

Section 17 makes provision for the designation of laboratories for the examination of substances for the purposes of the Bill. The Forensic Science Laboratory is specifically designated as such a laboratory. Section 18contains provisions relating to evidence in proceedings under the Bill. Section 19 provides for the disposal of things seized for use in evidence in criminal proceedings under the Bill. Section 20provides that a person guilty of an offence under the Bill is liable on summary conviction to a fine of €5,000 or imprisonment for up to 12 months or both, or on conviction on indictment to a fine or to imprisonment not exceeding five years or both. It also includes standard provisions regarding offences by bodies corporate and forfeiture of substances, etc. on conviction for an offence under the Bill.

Section 21is a technical jurisdiction clause. Section 22extends the powers of search and seizure of customs officers at ports and points of entry to the State for controlled drugs under section 2 of the Customs and Excise (Miscellaneous Provisions) Act 1988 to psychoactive substances.

Section 23will add the principal offences under the Bill to the Schedule to the Bail Act 1997. Section 2 of that Act permits a court to refuse bail to a person charged with a serious offence if such refusal is reasonably considered necessary to prevent the commission of a serious offence by that person. A serious offence means an offence listed in the Schedule to the Bail Act which is punishable by five years imprisonment or more.

Section 24 is a standard provision relating to the making of regulations and the laying of orders made by the Minister before each House of the Oireachtas, while section 25 is a standard provision regarding expenses incurred in the administration of the Bill and section 26 provides for the short title of the Bill and its commencement.

The House will appreciate that this is an important Bill which has community safety at its heart. It gives a strong message to those who seek to put that safety at risk and who seek to undermine the legal framework of this country for controlled drugs. In this Bill, I have sought to match the creative circumvention of the law by those who sell unregulated psychoactive substances with equally creative criminal and civil law provisions. These provisions not only make such trade a criminal offence, they also bestow strong powers on the gardaí and on the courts to use the less onerous civil law procedures to prohibit such sale and ultimately close down places selling such substances.

This Bill should not be seen to operate in isolation. It is a catch-all approach and, as such, a support to the more specific approach taken in the Misuse of Drugs Acts which identifies and controls specified substances. The Minister for Health and Children will continue to monitor unregulated psychoactive substances emerging on the market with a view to listing them as controlled substances, if necessary using the emergency procedure. I intend to ensure that the situation regarding head shops is proactively monitored. I will not hesitate to come back to this House with further provisions to deal with the problem if such action is deemed necessary.

I appreciate the level of cross-party support which has been expressed for this Bill. I thank the Opposition parties in anticipation of the speedy passage of this Bill before the summer recess. I accept the Bill was published only recently but we had a good debate on it in the Seanad, where it was broadly welcomed.

This is part of a multi-pronged approach. It was clear to the Government that the Misuse of Drugs Act is limited in its application when new products are coming onto the market constantly. When we signed the order on the Misuse of Drugs Act and the specified items under that order, we were under no illusion that the goalposts would be quickly shifted. While most shops closed, and in fairness to the gardaí, they were on the street within hours of the order being signed, there are clearly still shops operating. The gardaí are monitoring the 44 shops around the country to ensure they are not selling illegal products but we are under no illusion that while some have definitely closed, they are using other means to sell these illegal products. As far as we can, we have tried to stop that, particularly the sale of such products over the Internet and by home delivery.

I thank the Attorney General's office and my officials for working through the night on this. It was not easy legislation to put together, although it appears simple, to cover the criminal offence of sale, supply, exporting and importing a psychoactive substance. It will be up to the courts to determine and the prosecution to prove if such a product has psychoactive effects and that it is for human consumption.

I again thank this House for its co-operation in allowing me to bring forward this Bill as a matter of urgency and I now look forward to a full debate.

That is one aspect of the Bill. The other aspect of the Bill, which is the one that I particularly pushed in the discussions I had with the Attorney General, is the civil procedure of prohibition, notice prohibition order and closure order. This will be used more frequently than the criminal offence. As it is a civil procedure, the burden of proof is less onerous than beyond all reasonable doubt. I welcome the Bill and I thank the Deputies opposite in anticipation of support for it.

See this speech in context