Psychoactive Substances Bill

Written evidence submitted by the Law Society of Scotland (PSB 19)


1) The Law Society of Scotland aims to lead and support a successful and respected Scottish legal profession. Not only do we act in the interests of our solicitor members but we also have a clear responsibility to work in the public interest. That is why we actively engage and seek to assist in the legislative and public policy decision making processes.

2) This paper is intended to provide you with some of our comments on this Bill.

If you would like to discuss the paper further, or if you would like more information on points we have raised, please do not hesitate to contact us.

3) Contact details can be found at the end of the paper.


4) The Psychoactive Substances Bill received its 2nd reading in the House of Commons on 19 October 2015.

5) The Bill is based upon HM Government’s response to an Expert Panel Report on the New Psychoactive Substances review in October 2014.

Summary of Main Provisions

6) The Bill creates the offence of producing a Psychoactive Substance in terms of Clause 4 and of supplying, or offering to supply, a Psychoactive Substance in terms of Clause 5. Exempted substances are listed in Schedule 1 of the Bill and this list can be amended by regulations made by the Secretary of State.

7) The meaning of a psychoactive substance is defined in Clause 2 of the Bill by which "Psychoactive Substance" means" any substance which is capable of producing a psychoactive effect on a person who consumes it and is not an exempted substance".

8) The Society acknowledges the challenges faced with the availability of New Psychoactive Substances (NPS) which have similar effects to traditional illicit drugs, are designed to evade drug laws, are sold openly in our high streets and over the internet, at low risk and high reward for suppliers and retailers, and often pose serious risks to public health and safety.

9) We also acknowledge that this is not of course a problem unique to the UK and that the global market place of the internet has made the distribution of NPS easier and giving people of all ages access to these new drugs.

10) We welcome the policy intent of Government in the introduction of this Bill to reduce the demand for all drugs, restrict the supply of drugs and support individuals to recover from their dependence.

11) We note that there is therefore potential for some consideration to be given to the current offence provisions contained within the Misuse of Drugs Act 1971.

12) While we welcome policy intent of this Bill, we remain of the view that, in approaching what is a world-wide problem, there is still a lack of scientific evidence on the extent of this issue and the effects of NPS in their many and varied forms. In this respect we advocate a combined approach to educate users, sellers and the public in general in that this should be a powerful force in the effectiveness of regulation.

13) With particular reference to enforcement of the offence provisions contained within the Bill, we highlight that users are purchasing NPS in different ways.

14) Reference is made to anonymous on-line sales and the practical difficulties in enforcement of these new production supply and import export offences.

15) We note that fatalities arising as a result of use of NPS are indiscriminate because, while longer term use now seems to be related to paranoia, other mental health and physiological problems, we note that "one bad batch" of NPS can be immediately fatal.

16) We therefore take the view therefore that much work requires to be done producing scientific evidence or otherwise of long term harms caused by NPS.

17) We note specifically that while many NPS at present on the market may be low risk, they are in abundance and in many different composite forms and accordingly the police are not equipped with the resources to be able to test it all properly. Accordingly their approach is to raid providers’ shops and confiscate the NPS.

18) Given the profit margins involved, it is our understanding that stock can be quickly replenished at relatively low cost.

19) We have also taken into account the various approaches in other jurisdictions and, notably, refer to New Zealand where a different approach was considered, namely to place the onus of proving that substances are fit and safe for human consumption back onto the manufacturers. Accordingly all approved products would be sold subject to a range of retail restrictions relating to age of consumer, advertising restrictions and licensing of sellers.

20) With particular reference to Clause 2 of the Bill we highlight a practical issue around "capability of producing a psychoactive effect in a person who consumes it "and suggest that an alternative definition around the capacity to depress or stimulate the central nervous system with some sort of hallucinogenic effect could be considered".

21) Finally, the Society took part in the New Psychoactive Substances Expert Review Group set up by the Scottish Government which reported in February 2015 which recommended the following:

1. Licensing authorities should attach conditions and restrictions in relation to the sale of NPS when issuing public entertainment or similar licences. This could be extended to include drug paraphernalia.

2. Producing a tool-kit and operational guidance to help local authority trading standards staff in tackling NPS.

3. Establishment of a National Centre of Excellence in Forensic Analysis to lead in the detection and identification of NPS in Scotland.

4. Developing a specific definition of NPS that could be adopted across all areas in Scotland.

5. To ask the Scottish Government to consider adapting the key elements of the Irish approach, (general prohibition under exception with no possession offence similar to this Bill)

6 . The development of a formal protocol between relevant agencies, setting out roles, responsibilities and information-sharing protocols.

22) We note that the House of Commons Home Affairs Committee published its report on Psychoactive Substances on 23rd October 2015.

We refer specifically to paragraphs 21 and 22 of this report and trust that its terms will be taken into account with a view to improving the legislation.

We also note that there has been no assessment of the effectiveness of the legislation which was introduced in Ireland in 2010 upon which the Bill is based.

With reference to paragraph 23 of the report we agree that the Government should draw more extensively on the experience and expertise of key stakeholders who should also be involved in reviewing the legislation once enacted.

October 2015

Prepared 27th October 2015