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Blanket ban on legal highs is no silver bullet

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This post is written by Andrew Brown and originally appeared on thejusticegap, an online magazine and law and justice aimed at the public, which I heartily recommend. You can follow @andrewbrown365 and @JusticeGap on Twitter. Since it appeared (on 12 June 2015), the debate about the new Bill banning all new psychoactive substances has become even more contentious.

The Psychoactive Substances Bill

The Psychoactive Substances Bill was debated in the House of Lords earlier this week; and if we take that debate as an indicator of what is to come then the remaining stages of the passage of the Bill are likely to be lively. I’m not sure I would have expected that, given there were broadly similar commitments in this area by the Conservatives, Labour and Liberal Democrats in their respective manifestos. But the devil is always in the detail, and parliamentarians are right to treat this seriously. As the expert panel pointed out the ‘blanket ban’ that the Bill seeks to introduce is ‘a significant step for drug policy’ – moving us away from responding to existing substantial harms to one which takes a precautionary principle in trying to control psychoactive substances.

Among the significant differences in the ways that this new piece of legislation will deal with the challenge of psychoactive substances is that new drugs won’t automatically be subject to assessment by the government’s Advisory Committee on the Misuse of Drugs (ACMD). As an aside, there are some scientists who are arguing that this could be a boon for legitimate research as there are significant costs associated with working with controlled drugs.

Another important distinction is that personal possession offences aren’t part of the new legislation, meaning that the focus of enforcement will be on the suppliers and retailers.

Expert panel

I spent over six-months as one of the members of the expert panel brought together by the Home Office last year to examine the potential legislative options for new psychoactive substances. Policy makers were very aware that the options they were using appeared not to have slowed the emergence of new drugs, or to have reduced the levels of harms that individuals and communities were experiencing, and that ‘high-street’ retail through headshops and market stalls was emerging as a political issue in some localities.

We were tasked with looking at what other countries had tried, to come up with new ways of tackling the issue and to make recommendations to the government. For me, and I suspect others on the panel, the principles I took into the examination of these issues were to try and reduce harms to users, to look at ways to contain or reduce the retailer room for maneuver, and perhaps most importantly to make sure that the legislative response was integrated into better responses for prevention and treatment.

What we learnt looking at the different models that have been developed is that all come with significant caveats attached to them. So, the ‘blanket ban’ approach has been effective in closing headshops where it has been implemented, but there is some evidence that the market adapts by moving online and that some of the drugs re-emerge on the criminal market. Meanwhile, the introduction of a regulated market that New Zealand produced widespread concerns about the use of animal testing to try and ensure that potential products are relatively safe; and to date no products are legally available for sale.

Unintended consequences

If all the legislative options come with unintended (if somewhat predictable) consequences so does doing nothing. Using the traditional tools of drug control to try and manage the market the government have seen retailers and the chemists that supply them respond by tweaking the drugs to stay one step ahead of the law, and by so doing developing drugs which seem to be more potent and have the potential to increase the harms to users. This approach has also meant that the retailers have had a chance to develop, grow their businesses, and to potentially to have significant resources to test the new legislation through the courts. Or alternatively to take a different – and potentially more difficult to control – approach to selling their products.

There’s already growing evidence that the ‘greynet’ (pages on the open internet that aren’t indexed by Google) is being used to supply NPS, and it would be a surprise if there’s hadn’t been learning from darknet retailers about how to avoid interception when sending product through the mail system.

Equally, the market inside prisons seems to have grown significantly, over a third of adult prisons reported problems with synthetic cannabinoids to the prisons inspectorate last year. This growth is partly because there are very few ways of detecting NPS with the current drug testing and detection systems; making NPS attractive to prisoners. The incentives to continue to provide these difficult to detect products to prisoners and others that face drug testing regimes means that some NPS could be seen as a lucrative market for organised crime.

The expert panel concluded our review making a set of recommendations that did include introducing a ‘blanket ban’ but we said clearly that we didn’t believe that this was the ‘silver bullet’ of drug policy, rather we saw this as changing the nature of the problems that policy makers were likely to face in this area.

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