The Psychoactive Substances Bill 2015-16 – legal highs, how low can you go?

10 June 2015

The Psychoactive Substances Bill 2015-16 is one of the first pieces of legislation published in this Parliament and is due for its second reading in the House of Lords on 9 June. Whilst, albeit belatedly, the law of unintended consequences has stalled the repeal of the Human Rights Act, sadly such foresight has not been adopted in relation to the all-too-human – and often entirely harmless – desire to seek pleasure. Unsurprisingly given its content, the Bill has been widely commented upon including an article by leading legal blogger Carl Gardner, which suggests that some of the criticism may be overblown but genuine concerns remain.

The Conservative Party’s election manifesto contained a commitment to create a "blanket ban on all new psychoactive substances”, with the intention being to protect “young people from exposure to so‐called legal highs”. The explanatory notes to the Bill set out how the Misuse of Drugs Act 1971 is unfit to tackle the growth of legal highs (substances intended to replicate the effects of controlled drugs). Up to now, the Act has been amended piecemeal to criminalise individual legal highs as and when they are identified as harmful. Because it is felt that such reactive prohibition cannot keep pace with the rapid release of new forms of legal high onto the market, the evidence-based regime targeting particular substances only once their harm has been assessed is to be jetissoned in favour of a broad prohibition to which exemptions must be granted.  Aside from the problems with this approach outlined below, the proposed legislation signals a very clear and disappointing rebuke to those arguing that the government should move towards decriminalisation of drugs.

“Psychoactive effect”

Clause 2 of the Bill provides that a substance is prohibited if it produces a “psychoactive effect”. Specifically, if it “affects the person’s mental functioning or emotional state…by stimulating or depressing the person’s central nervous system”. The problem is a glaring one: pleasure is an emotional state originating in the brain, part of the central nervous system. Therefore any pleasure-creating substance is potentially prohibited. Alcohol, nicotine and caffeine are exempted by the Bill, but it is not hard to think of myriad other substances that might be rendered illegal. Because inhalation equates to consumption (clause 2(3)), anything inducing happiness because it smells nice may be caught. Can we really be facing the prospect of prosecutions for the sale of something as mundane and inoffensive as air freshener?

Products with a less aesthetic but entirely legal primary purpose - lighter fuel, glue, nitrous oxide - can be ingested for their psychoactive properties and so their sale may constitute illegal supply. Though the fact that nitrous oxide when used as a propellant in whipped cream cans is exempt illustrates that the draftspeople did not completely ignore the potential pitfalls.

A misguided approach?

Of course the Bill may be subject to extensive amendment during its passage, or if enacted in its current state the courts may choose to interpret the legislation in such a way as to avoid some of the consequences set out above, or it may simply not be enforced (though this is hardly to be welcomed). But bigger issues go unaddressed: is it wise to abandon an evidence-based approach to prohibition? Can such blanket bans ever be effective? Is it desirable to have yet more criminal legislation, with attendant extensive coercive powers of search, seizure, forfeiture and closure?

More fundamentally, is not time to reassess completely the state’s approach to drugs and their regulation? The Bill was published almost simultaneously to the annual European Drug Report issued by the European Monitoring Centre for Drugs and Drug Addiction. The report highlights that use of legal highs is lower in Portugal – where all drugs were decriminalised in 2001 - than in any other country that monitors their use. This appears to suggest that those who wish to use drugs will shun synthetic substitutes if they can legitimately access the real thing. Much more significantly, Portugal now has the second lowest rate of drug overdose deaths of any EU Member State (3 deaths per 1m citizens as opposed to over 44 in the UK).

Therefore, if the challenge for the government is how to demonstrate a genuine commitment to minimising the harm caused by drug use, the Psychoactive Substances Bill is very definitely not the answer.

Further Information

If you have any questions about the issues raised in this blog, please contact Ed Smyth or another member of the criminal litigation team.

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