Why the government is right to blanket ban new psychoactive substances

The proposals in the Queen’s Speech to introduce a general ban on “legal highs” has given all the usual suspects another opportunity to restate previously held positions.

Legalisers across the political spectrum, such as Release and the Adam Smith Institute, tell us that if only cannabis and ecstasy were legal there would be no market pressure to create drugs which mimic their effects in laboratories in China – and therefore legal highs would not exist. Meanwhile Julia Hartley Brewer in The Daily Telegraph tells us that “the ban on legal highs is a good thing and will undoubtedly save lives”.

What the experts said

The sober, evidenced, and persuasively argued report of the expert panel into New Psychoactive Substances (NPS) – on which the proposed legislation is based – lacks both the certainty and rhetorical flourish of the commentators.

The expert panel began by contextualising the use of NPS. They acknowledged that measuring use precisely is impossible but all the evidence pointed to levels of use much lower than those implied by newspaper headlines: 1.3% of all adults; 1.9% of the 16-24 age group; 0.4% of schoolchildren – all small fractions of the use of more traditional drugs among the same groups.

Furthermore, the majority of NPS users are also users of illegal drugs (98% of those who had used mephedrone in the last year had also used another illicit drug) which suggests that the number of new users being introduced to the risks of drug use is negligible. All told the panel concluded that “NPS appear to be less used and associated with less harm than traditional illegal drugs.”

Less harm not harmless

Less harm however does not equate to harmless. The European Monitoring Centre for Drugs and Drug Addiction in Lisbon reported an unprecedented increase in the number, type and availability of new psychoactive substances in Europe that “is also responsible for the increase in serious harms reported to the EMCDDA in recent years”.

Number of new psychoactive substances reported to the EU Early Warning System 2005-14.EMCDDA

In England there is evidence of an increase in mephedrone treatment need from 839 adults in 2010-11 to 1,630 in 2012-13, with a similar pattern for under 18s. Deaths associated with NPS have also been increasing, from 29 in 2011 to 52 in 2012 – still dwarfed by the 1,500 deaths associated with illicit drugs, but far too many to ignore and an alarming rate of increase.

The overall picture is of a small but growing problem with use concentrated among existing drug users. This can lead to the intensification of pre-existing problems such as unsafe sexual practices between men who have sex with men, and dealing and bullying in custody, particularly among vulnerable young prisoners. To these problems we need to add the continuing concern that the next wave of substances to arrive may have much greater potential for immediate and long-term harm.

Other attempts at legislation

Much of the media comment has focused on the shift in the legal basis for enforcement towards what the expert panel describe as a “precautionary principle” rather than responding to evidence of harm as the Misuse of Drugs Act (1971) does.

The panel recognised the significance of the shift but also painstakingly reviewed the attempts over the past few years to use existing legislation to keep up with the labs in China who could easily tweak the chemistry more quickly than the Advisory Council on the Misuse of Drugs (ACMD), which makes recommendations to government on the control of dangerous or otherwise harmful drugs, could assess the harm for each slightly different formulation.

Frog ‘e’: available at local head shops.Raquel Baranow, CC BY

There have been various attempts across the world to overcome this problem, including the outlawing of analogues (substantially similar) in the US in 1986, which has proved cumbersome, expensive and not very effective, and the currently stalled attempts to introduce regulation in New Zealand. There have even been attempts by local authorities in the UK to use consumer protection legislation to disrupt sales. Of all the models available, the expert NPS panel concluded in its report that the legislation introduced in Ireland in 2010 offered the most practical way forward.

In essence, under the new UK Psychoactive Substances Bill, any substance delivering a drug-type experience to the user will be illegal to manufacture or supply, but not to possess – unless it is already illegal, in which case it will remain subject to the Misuse of Drugs Act. Exemptions will be given by the Home Office to include foodstuffs and our current culturally sanctioned drugs, such as alcohol, tobacco and caffeine.

Some see this as the thin end of the wedge: the state taking to itself unprecedented powers to declare activities to be unlawful by default. The panel saw it as a proportionate pragmatic response to a market which seeks to profit from selling products which are inherently dangerous by sheltering behind the technical legal requirements to prove the harmfulness of each very slightly different variant.

There are no expectations that this approach will solve the problems with NPS overnight. While the panel believed that on balance it has the potential to reduce use and may save lives, critics have argued that it will have no effect at all, merely driving the domestic market into the hands of existing illegal drug dealers and leaving foreign-based websites to ship NPS into the UK at will. My own best guess is that it does have a reasonable chance of yielding some benefit.

The exclusion of possession

There are real advantages in driving activity underground. The panel identified 250 “head shops”, where legal highs are sold in high streets, and 120 UK-based online retailers. NPS are also increasingly being sold in petrol stations, newsagents, and market stalls. Closing down the visible points of sale will tend to deter novice users and, just as importantly, will prevent the normalisation of NPS use which the presence of open sales promotes.

The government deserves credit for following expert advice. Successive governments have ignored the advice of the ACMD over a range of issues. In this instance it has followed the advice of the panel in most key respects, setting a helpful precedent.

One of the key recommendations that has been accepted is that, although the offences related to NPS largely shadow those of the Misuse of Drugs Act, there will be no offence for recreational possession. This opens up opportunities to reflect again on the utility of the current offence of possession within the act itself – and, in particular, the vexed issue of imprisonment which looks to many observers, even those who do not favour legalisation, to be disproportionate. Presumably the Sentencing Council will at some stage be asked to advise on the sentencing guidelines for the offences within the new act. Perhaps this will create an opportunity for them to give guidance to judges which will avoid too great a discrepancy in the response to those using very similar substances.

Paul Hayes is a former CEO of the National Treatment Agency. As such he was responsible to ministers and parliament for the funding and delivery of treatment for drug addiction in England between 2001-13. He currently chairs the Northern Inclusion Consortium, a collaboration between five third sector organisations providing integrated responses to social and economic exclusion