The Psychoactive Substances Act Means to Benefit Public Health, But Street Dealers and Organised Criminals Will Benefit Most

The fact that the law on new drugs is less bad than our utterly disastrous laws on more well-established drugs isn't a cause for celebration. The government had an opportunity to take control of a risky trade in need of regulation - instead, it's pushed it further underground.

How do you solve a problem caused by banning drugs? You ban more drugs, of course. That's the logic behind the government's widely criticised Psychoactive Substances Act, which comes into force today. The Act is intended to tackle so-called "legal highs" (more accurately called "new psychoactive substances" [NPS]). But the emergence of these products is a direct result of the prohibition on more traditional drugs; people only use synthetic cannabis products like Spice, for example, because real cannabis is illegal.

To address the public's concerns about NPS - which have naturally been stoked as much as possible by hysterical tabloid reports - the Act makes it a criminal offence to produce, supply and sell any substance capable of producing a psychoactive effect, a notoriously sweeping and vague definition, and yet the new law exempts two particularly risky drugs, alcohol and tobacco.

While the Act is going to accomplish very little, and will probably result in greater drug-related harm, it enables the government to be seen to be doing something about the NPS phenomenon, especially because it will mean the closure of most high-street head shops, thereby providing a visible PR "success". Admittedly, in some respects, this is a good thing: it wasn't right that anyone - even teenagers - could just walk in and buy what are, in some cases, very risky substances that had not been properly tested, labelled and subjected to quality controls. But just because these stores shut down, it doesn't mean the NPS market will vanish. The trade will simply shift to street and unregulated online sales, which, on balance, is likely to mean a net increase in public health harms and crime.

That's what's happened in countries that have introduced similar legislation. Ireland imposed a ban on NPS in 2011, when use of these substances among 15 to 24-year-olds was at 16%; by 2014, it had risen to 22%, making use among this group the highest in Europe. And in Poland, which introduced its ban in 2010, the number of NPS poisonings requiring hospital treatment declined at first, but then increased to beyond pre-ban levels in 2013, as online and illegal street markets filled the void left by the shuttered head shops. In the first 10 months of 2014, the number of NPS poisonings resulting in hospital treatment had reached around 1,600 and three fatalities had been recorded - a huge increase in harm compared to before the ban came in, when the number of NPS poisonings was 562.

All of which makes you wonder if the government even bothered to look into the evidence on whether a ban on NPS might be effective. It certainly seems like it tried its hardest not to solicit any opinions that could possibly derail the legislative course it had already decided upon. The full Advisory Council on the Misuse of Drugs was only consulted after the Psychoactive Substances Bill had been drafted, despite the ACMD's competence, authority and legal remit under the Misuse of Drugs Act 1971 to advise government on such issues. This may have been because the ACMD had previously recommended against prohibiting low-risk drugs such as khat and nitrous oxide (the former was banned in 2014 and the latter will now be banned under the new law).

The Home Office did, however, convene an expert panel to review the UK's approach to NPS, which while heavily skewed towards law enforcement, did include two members of the ACMD, as well as people from academia, drug prevention and education. Despite acknowledging a lack of evaluation from other countries, like Ireland, that had put blanket bans in place, they still recommended such a ban (PDF). But crucially, they also called for exemptions for substances "where the risks of health and social harms can be adequately assessed", to ensure low-risk products could be excluded from the ban and, if possible, regulated. Unsurprisingly, that option didn't end up making it into the government's plans.

It's a shame, because a regulated market model would have been the more innovative - and potentially more effective - route to go down. It could've allowed for strictly controlled sales of certain lower-risk NPS that had been appropriately safety tested and labelled, enabling there to be far greater control over the products, their availability and those who manufacture and sell them. This is what New Zealand attempted to do in 2013, but political obstacles and concerns about animal testing of the NPS have meant the market is yet to get off the ground, even though the regulatory infrastructure now exists.

But instead of trying something new that actually has a chance of reducing drug-related harm, the UK government has decided to continue its longstanding commitment to banning things. And this ban may be one of the most ill-conceived ever. It's so poorly drafted, it's been labelled one of the worst British laws of all time. Its definition of "psychoactive substances" is so broad that it potentially includes a wide range of plants, spices, herbal remedies, over-the-counter medicines, and household and industrial products. And as legal commentator Joshua Rozenberg and others have highlighted, it's going to be virtually impossible for prosecutors to prove in court that a given substance has a psychoactive effect. Running a human clinical trial or carrying out animal testing isn't an option, so the Home Office seems to have settled on the idea of doing in-vitro (lab) testing, to identify whether a substance is made up of chemical structures that bind with cell-based receptors and thereby produce a response in the user's body. But there are still doubts that this constitutes a genuine test of psychoactivity. Either way, this is such a legal and scientific minefield that you can see why the police delayed the introduction of the Act due to concerns it would unenforceable as law.

The one commendable aspect of the Act is that it won't criminalise the personal possession of NPS or "social supply" of these substances (essentially exchange between friends). But if the government thinks criminalisation in these instances would be unnecessary or counterproductive, then why doesn't it apply the same logic to other drugs? It's not as though they'd be out on a limb on the issue: decriminalisation is a position advocated by - to name just a few - the World Health Organization, the UN Development Programme, UNAIDS, the Office of the High Commissioner for Human Rights, the American Public Health Association, and the Global Commission on Drug Policy, whose members include Kofi Annan and a range of former heads of state. And Portugal's long-established model of decriminalisation was even described as the "gold standard" of drug policy by the head of the International Narcotics Control Board - perhaps the most conservative international drugs body on the planet.

But the fact that the law on new drugs is less bad than our utterly disastrous laws on more well-established drugs isn't a cause for celebration. The government had an opportunity to take control of a risky trade in need of regulation - instead, it's pushed it further underground. This Act is meant to be for the benefit of public health, but the main beneficiaries will be street dealers, organised criminals and perhaps politicians who want to be seen to be doing something - anything, no matter what the undesired consequences - about these substances.

Before You Go