We got confirmation yesterday that the psychoactive substances bill has been delayed while the police and the Home Office try to work out what to do with it. It's been clear for some time that this was going to be the case, but a letter to a business owner from Hampshire police, published by the Alternative Trade Association, confirms it.
"I write with reference to the recent letter you received from the police," it reads. "The purpose being to provide you with a brief overview of the Psychoactive Substances Act which had been due to come into force 6th April 2016. Shortly after this letter the Home Office announced that the commencement date for the legislation would no longer be 6th April and a new date for commencement has yet to be confirmed."
The authorities are having the same problem the Irish had when they passed this law – and which the Home Office refused to properly address when it was rushing it through parliament: they do not know what the definition of 'psychoactive' is. The Home Office recently announced that it would exempt poppers from the Act, but taking a closer look at its reasoning shows that they are just as baffled by their own legislation as ever.
The technical definition of psychoactivity under the Act goes like this:
"(a) is capable of producing a psychoactive effect in a person who consumes it, and
"(b) is not an exempted substance (see section 3).
"2.(2) For the purposes of this Act 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; and references to a substance’s psychoactive effects are to be read accordingly.
"2.(3) For the purposes of this Act a person consumes a substance if the person causes or allows the substance, or fumes given off by the substance, to enter the person’s body in any way." [Emphasis added]
There are all sorts of obvious objections to this definition, which I've made at length in previous pieces. But even allowing for a generous reading in which we get rid of flowers and incense and nutmeg and all that silly stuff, it still falls apart rather quickly.
Poppers were exempted from the Act after the Advisory Council on the Misuse of Drugs (ACMD) suggested they were not psychoactive. They had two reasons for this. The first was about harm and the second was about definition.
On the first, their argument was that poppers did not cause sufficient harm to warrant a ban. Very occasionally they cause damage to the eyes or they might burn the skin. Sometimes people dip their cigarettes in them and light them and get burned. But these situation are very rare. They are basically harmless. The National AIDS Trust and others warned the Home Office that, were they to be banned, their popularity among gay men could lead to averse health outcomes. The punters would still buy it, but now under unregulated conditions.
The reply to the ACMD from Home Office minister Karen Bradley neatly side-steps this claim. She quite specifically says that her acceptance of the advice is not about harm, but about the definition of psychoactive.
"Our acceptance of your advice brings to an end the review process we were undertaking in parallel to consider the case for a bespoke exemption for the alkyl nitrites group [of which poppers are a member] under the Act on the basis of their beneficial and relationship effects. The process to exempt substances from the Act applies only to substances which meet the Act's definition."
Don’t ask me what "beneficial and relationships effects" means. No-one can make head or tail of that sentence. But the overall meaning is clear: the Home Office is officially not responding to the argument on harm.
There's a strong reason for that: they're intent on not recognising arguments about harm, because that takes them into an intellectual territory they're not willing to visit. It means, for instance, that you would not ban laughing gas, which is really half the purpose of the Act. It means you would most certainly not have legal alcohol and illegal magic mushrooms. The entire drug control regime is based on ignoring arguments for harm. The argument made about gay men still buying the drug but under unregulated conditions has probably been accepted by the Home Office behind closed doors – but it cannot accept it in public, because it is one of the key general arguments for drug legalisation.
So the poppers exemption rests solely on the definition of psychoactivity: that a substance, "by stimulating or depressing the person’s central nervous system... affects the person’s mental functioning or emotional state". The ACMD then adds an interesting wrinkle to this. Their advice reads:
"The ACMD's consensus view is that a psychoactive substance has a direct action on the brain and that substances having peripheral effects, such as those caused by alkyl nitrites, do not directly stimulate or depress the central nervous system." [Emphasis added]
So now substances not only need to stimulate or depress the central nervous system, they must do so "directly". It’s not entirely clear what this means, but in the case of poppers, the fact it affects the blood vessels first, rather than the brain, seems to be the crucial element.
Anyone who has ever taken poppers is baffled by this. The most common result of taking this dreadful drug is a pounding headache, so it all feels very directly-affecting-the-brain indeed. But apparently scientists are content that it hits the blood vessels first. The ACMD have all sorts of odd positions when it comes to regulation, but when it comes to the science they are reliable.
Bradly approves of this new definition of psychoactivity.
"Having given due consideration, the government agrees with your advice and interpretation of the definition. We do so in the understanding that 'poppers' have these unique indirect effects. Our understanding is that this approach does not have any further implications for the operation of the Act and that other substances that the Act intends to cover are not affected. We remain confident that the psychoactivity of those substances can be established under the definition in the Act. We will ask law enforcement agencies to be guided by our agreement with your advice."
At the moment, the Home Office is certain that all the other drugs it wants to ban will also be included in this new definition. But they can't really be sure of that in the future. The indirect causation definition could provide a loophole for chemists trying to find ways of sidestepping the Act. But the Home Office won't admit that. I asked them several times last week if the Bradly letter meant they were accepting the ACMD definition of psychoactivity for all drugs, or just for poppers. They could not reply. Or would not. Sometimes it’s hard to tell. Given their refusal to comment, we have to take that paragraph at face value and conclude that direct causation is now part of the general legal definition of psychactivity.
Which goes some way to explain why the police are struggling to imagine how they'll ever prosecute anyone under the Act. The Home Office still, despite having actually passed the thing, does not seem to be able to describe what it is it is actually banning. And that's not even to get to the point where a pharmacologist is going to demonstrate it in court. The Bradly letter suggests that not only will the Crown Prosecution Service need to demonstrate the effect on the central nervous system, they'll also need to demonstrate that the effect is direct. The more complex the definition, the slimmer the likelihood of prosecutions.
Of course, this was all predicted in advance. It was precisely the problem Ireland found when it pursued the same folly a few years ago. And on any sane level of real-world experience, it is barmy. Who on earth knows whether the causal effect on their central nervous system is direct or indirect when they take a drug?
But beyond any of those objections, it remarkable that even at this late stage, with royal assent having been given, the Home Office still has no idea precisely what it is it has banned.