I had rather naively thought that a central part of Conservative philosophy was that, unless there is strong evidence of harm that can be prevented or alleviated by Government action, it’s usually best to let people live their lives without interference from the state. Theresa May’s Home Office thinks rather differently. It proudly announced last month that since 2010 it has banned more than 500 new drugs, as though this were an end and a self-evident good in itself.
Well, we now know it was not an end, it was a beginning, and 500 banned substances were just a taster. In its Psychoactive Substances Bill the second reading of which is to take place in the House of Lords next week, it has made proposals to ban all “psychoactive substances” apart from a few defined exceptions.
Did you know that tea was a “psychoactive substance”? Well under this new law it will be, and you will be allowed to drink it only as a special exemption from the normal rule.
The supposed mischief at which the law is aimed is the trade in “legal highs”: synthetic chemicals, usually manufactured in Asia, which create psychotropic effects similar to those of controlled drugs such as opiates, ecstasy and so on.
What is the extent of the problem?
Figures are exceedingly hard to come by, and not very reliable when you find them. Furthermore it can be hard to disentangle the effect of any particular drug from the effects of other drugs or alcohol The most widely quoted figures are those of the St George’s International Centre for Drugs Policy’s National Programme for Substance Abuse Deaths which found that “Novel Psychoactive Substances” were responsible for 68 deaths in 2012.
However, this does not mean that “legal highs” were responsible for all these deaths, or even most of them. A Novel Psychoactive Substance (“NPS”) is not the same as a “legal high.” It simply refers to a drug which is not listed in the United Nations Convention on Narcotic Drugs, probably because it was not considered important at the time the Convention was drafted.
The NPSs most implicated in deaths in 2012 (with 24), for example, are the Methcathinones (the best known of which is Mephedrone), which have been Class B controlled drugs since 2010. Just behind these, said to be responsible for 23 deaths, were “amphetamine type substances,” most, if not all, of which have been illegal for well over 30 years.
To confuse matters further, some of the other deaths attributed to NPSs, were caused by dietary supplements or anabolic steroids which are not, at least under any sensible definition, psychoactive in effect anyway.
In short, most of the harm attributed to legal highs was in fact caused by drugs which were either not legal, or not high-inducing. In fact only 11, or less than 1%, of the total of 1,613 drug-related deaths in 2012 were even arguably attributable to anything that could sensibly be called a “legal high”.
In the face of this dearth of evidence, it was little wonder that the Government’s own panel of experts concluded in 2014:
“We have a very incomplete understanding of acute and longer term health harms and we know very little about any associated social harm. There is little evidence of NPS use driving crime and disorder, though organised crime groups are likely to become involved in supply if deemed profitable, as was seen in the case of mephedrone post-control.”
So the Government’s strategy is an odd one: after over forty years of a war on traditional controlled drugs, which seems to have benefited mainly an unsavoury criminal underworld, it has decided to open a second front against drugs, and as we shall see lots of other things, which may, in fact, not be harmful at all. It is especially odd to do so when one of the very few confident predictions from the Government’s own expert panel was that the criminalisation of “legal highs” will draw “organised crime” into their supply.
But whatever the wisdom of the approach, the Government seems to have decided that banning 500 substances is not enough. It must ban almost everything that gives pleasure.
And what a ban. Of all the many idiotic, ill thought out and pointless laws ever passed, this would be the one of the silliest. And its draftsmanship would make the asinine Dangerous Dogs Act look like the magisterial 1925 Law of Property Act.
The production, supply, offer to supply, import and export of any “psychoactive substances” will carry potential 7 year gaol sentences. Oddly enough, in the current draft, simple possession without any intent to supply will remain legal, although it may be that this rare flash of apparent common sense, like large swathes of the rest of the Bill, merely reflects the draftsman’s incompetence.
The heart of the Bill is S.3 which defines a “psychoactive substance” as a substance which:
(a) is capable of producing a psychoactive effect in a person who consumes it, and
(b) is not an exempted substance.
It is the definition of “psychoactive” which, rightly, has attracted the most comment.
“… a substance produces a psychoactive effect in a person if, by stimulating or depressing the person’s central nervous system, it affects the person’s mental functioning or emotional state. …”
Any substance which gives pleasure, of course, “affects a person’s emotional state.” The starting point of the Bill is that giving pleasure is sufficient justification for prohibition.
“Consuming” is defined as causing or allowing a substance, or “fumes given off by the substance,” to enter the body in any way.
It is true that alcohol (as long as it contains no other psychoactive substances), nicotine, tobacco and caffeine are “exempt substances” (“Thank you, thank you Mrs May”), as are medicinal products.
The position is less clear for pharmaceutical companies trying to develop new drugs. Whilst “investigational medicinal products” to be used in clinical trials are exempt, the bill appears to render the production of any new psychoactive drug for research purposes unlawful. The rationale for criminalising research into much needed new psychiatric drugs is obscure.
As if to highlight the Bill’s absurdity, whilst bona fide drugs researchers are turned into criminals, homoeopaths are left unaffected. A pointless exemption has been given to homoeopathic preparations, even though there is no chance whatever that the silly little pills of nothingness and quackery would have any effect on your brain anyway, except as a placebo.
Butane gas, glue, petrol and some cleaning fluids have all been used for their psychoactive properties. As a result, the law as currently drafted will render their sale illegal. Indeed the Bill’s artificial definition of the word “consumption” to include inhaling “fumes” could have been designed to criminalise petrol station operators and hardware stores. Nobody seems to have considered the point.
Beyond this, the Bill’s effects are astonishingly far reaching, banning things irrespective of any evidence or reason, simply because they “affect a person’s emotional state,” or – in ordinary language – because they give pleasure or make your life a little happier.
Amyl nitrite and its chemical relatives, for example. In the form of “poppers” they are widely used, especially by gay men, to enhance sexual pleasure. They are not controlled drugs at present, largely because nobody has ever made a convincing case that they are particularly dangerous. Now they are to be banned not because of the harm they do, but because one of their pleasant effects is to produce euphoria and disinhibition – they “affect your emotional state” – so they are caught by S.3.
Betel and areca nuts, popular amongst some South Asians, have a mildly stimulative effect, comparable perhaps to drinking coffee. They are not particularly good for you, and they turn your teeth an unattractive browny-red colour. But they are not being banned because they turn your teeth brown or because of any harm they do, but because of the pleasure they produce. No matter how mild, any stimulative effect is enough to criminalise their possession and supply under the proposed law.
Vapers may think that they are in the clear because the fumes they inhale contain nicotine, which – poisonous and dangerous though it may be – is exempted. However, many vapers add other substances for their soothing or stimulative effects. If anyone offers to supply a vaper with such substances, under this new law they could find themselves gaoled for seven years.
What about that nice soothing hop pillow that you use to help you sleep? If you let it go to the other side of the matrimonial bed, or worse still lend it to your child you’ll face a possible seven years imprisonment for supplying a psychoactive drug. You could argue that it was a “herbal medicinal product” but it probably isn’t, or you could argue that hops are a “food,” although they clearly aren’t (despite the Bill’s clumsy assertion that “food includes drink.”).
Pet owners might find themselves in trouble: some toads and salamanders secrete psychoactive substances on their skin. If you offer to sell them or even give them away you would be committing an offence.
It has even been suggested by the one of the country’s best known legal bloggers, David Allen Green, that the delight produced by the scent of flowers could be enough to engage the provisions of the Bill, and what’s more he is right. What stronger emotional response is there than that produced by the beautiful scent of roses delivered to the woman you love? Sorry, that very emotional response is enough to engage Section 3, and if you happen to hand them to her outside a school, or worse still arrange for someone under the age of 18 to deliver them, the Court is obliged by Section 6 to treat those facts as “aggravating features” for the purpose of sentencing. And don’t think you could avoid the law by giving her perfume instead of flowers: the esters and oils in perfume are designed to seduce, which is of course an emotional response.
Did I mention the vast array of new powers that the Bill gives to the police? Stop and search, powers to search buildings, prohibition notices and restrictions on your liberty that can be proved merely on the balance of probability? The Bill is absolutely overflowing with them.
Some of this, like the ban on toads, might seem trivial unless you’re a toad fancier. Others, such as the ban on scented flowers, so obviously absurd that of course no-one is likely to be prosecuted. Perhaps they are the sort of thing that can easily be sorted out by changes to the Bill’s lamentable wording as it wends its way through Parliament. But the Home Office thinking is revealing. Instead of banning things because there is evidence that they will do harm Theresa May now wants to ban things because they cause pleasure.
The Bill is a text-book example of bad legislation, It is unnecessary, incomprehensible, largely unenforceable, and, by encouraging professional criminals into a new area of business it is likely to prove entirely counter-productive.
(A slightly modified version of this article first appeared in the Daily Telegraph 2nd June 2015)