Lords' amendments introduce evidence requirements to legal highs bill

Lords amendments try to introduce evidence-based provisions to psychoactive substances bill
Lords amendments try to introduce evidence-based provisions to psychoactive substances bill
Ian Dunt By

The psychoactive substances bill will easily pass a vote in the Commons, but it will be given a kicking in the Lords.

Peers won't vote it down – although they could if Labour changed its tune. There's no government majority in the Lords, so Labour and Lib Dems together could do it. It's just very unlikely Labour will do so. But, at the very least, peers will debate the bill properly and a few campaigning members will get duff it up a bit and point out the full extent of its idiocy.

That process starts today, with a host of amendments being put forward by a variety of peers – chief among them Lib Dem Lord Paddick, Labour's Lord Howarth and crossbencher Baroness Meacher. In amendment after amendment they try to insert demands for evidence, committees to assess the relative risk of substances, a more rational scientific definition of what a psychoactive substance might be and the return of the Advisory Council on the Misuse of Drugs (ACMD). It is doomed to failure, but it is an honourable rearguard defence.


They start by demanding an impact assessment of the Republic of Ireland's Criminal Justice (Psychoactive Substances) Act 2010, which attempted to do the same thing the Home Office is currently trying to do. This seems wise, given they have only managed to secure four successful prosecutions in five years. As Tony Howard of the Drugs and Organised Crime Bureau, said:

"Unfortunately a prosecution cannot be taken. There are problems. We are relying on scientists to assist us with these prosecutions and, unfortunately, they haven't been able to provide the evidence to us."

They then demand an annual update of how the law is actually doing once it is passed for the UK.

"Following the commencement of this Act, the secretary of state must publish a report annually setting out the impact of this Act, including on deaths and other harms caused by all controlled and banned substances."

They ask for an independent review of both this law and the Misuse of Drugs Act 1971. They try to give the Medicines and Healthcare Products Regulatory Agency the power to add or remove substances from an exempted substances list. They want the home secretary to be forced to recognise when the ACMD "determines that the substance poses a low overall risk".

Peers are trying to reintroduce evidence-tests for drug policy

In fact the ACMD, which is basically being permanently sidelined by the Act, is reintroduced at several points, with the peers clearly aware of what the government is up to and intent on protecting the body from being wiped out. They are unlikely to succeed. The ACMD keeps giving the government accurate information about the relative harms of drugs. It cannot be allowed to continue. But peers do their best:

"Page 2, line 12, leave out “such” and insert “the Advisory Council on the Misuse of Drugs and such other”"

They also attempt to improve on the government's nonsense definition of psychoactive substances, which threatens to make all manner of things illegal, with a new definition.

"Page 2, line 1, leave out “affects the person’s mental functioning or emotional state” and insert “has the capacity to— (a) produce stimulation or depression of the central nervous system of the person, resulting in hallucinations or a significant disturbance in, or significant change to, motor function, thinking, behaviour, perception, awareness or mood, or (b) cause a state of dependence, including physical or psychological addiction”.

This attempts to make sense of the Home Office's definition, which would effectively ban anything which affects our mental or emotional state and then throws it open to police, judges and prosecutors to only target those people they want. Obviously it's a dreadful idea. So the peers put it to one side and recommend something which produces hallucinations or a "significant disturbance" in motor function, thinking etc. This is far superior to the Home Office's definition but it still has many problems. A sumo wrestler will have a higher threshold for a "significant disturbance" than a skinny 18-year-old girl, for instance. But still – any port in a storm.

Different body weights would be affected by drugs in different ways, making a requirement for a 'significant' effect challenging

The insertion of 'state of dependence' again tries to reintroduce a harm principle to drug policy – that bans should be imposed on harmful substances, not just anything which makes us feel differently.

The peers then try to introduce facilities for people to at least be able to tell they are breaking the law if that is what they are doing. One of the problems with the Home Office's 'affects mental functioning' definition is that you simply don't know that the thing you are taking is illegal unless you have already taken it. Possession will not be illegal – just supply. But that isn't as definitive a statement as it sounds. For instance, passing something to your friend to take counts as supply, even if no money was involved. So the potential for people to be breaking the law without knowing it is very real. One amendment envisages a solution where the government provides:

"(a) a publicly accessible website containing comprehensive information about all psychoactive substances, including controlled substances, which he has reason to believe are or may be available to consumers in the United Kingdom, (b) a network of testing centres, readily accessible at no charge to users and others, at which they can be informed about the identity, composition, toxicity and potential harms to human health of any substances brought in by them which there is reason to think may be psychoactive."

What is the guiding thread which unites all these amendments? Evidence. They are all concerned with bringing in experts, with assessing harm, applying a more specific assessment of how a drug does the thing which makes it illegal and allowing people to know if they are breaking the law or not.

In a sane world it would not be left to campaigning peers to make such recommendations but - ironically - if the psychoactive substances bill proves anything, it's that we do not live in a sane world.

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