24.Clause 2 of the Bill defines a ‘psychoactive substance’ as any substance which is capable of producing a psychoactive effect in a person who consumes it, and is not on the Government’s list of exemptions. 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. The Explanatory Notes to the Bill state that the range of effects include, but are not limited to: hallucinations; changes in alertness, perception of time and space, mood or empathy with others; and drowsiness.
25.Most of the written evidence we have received acknowledges that a broad definition of a psychoactive substance has been intentionally established in order to keep ahead of the pace at which these substances can be created and altered. However, there are concerns that the breadth of the definition might have unintended consequences. Pharmaceutical organisations are concerned that it will have an adverse effect on producers of legitimate medicines; retailers want clarity on the products they can stock; and religious organisations are concerned that use of incense in places of worship will be criminalised.
26.The Government has taken some steps to assuage these concerns. The Home Office has confirmed that guidance will be provided on how the Bill will affect retailers, and that the Government is committed to ensuring that bona fide medical and scientific research is exempted. However, it remains unclear whether a range of substances will be banned by the proposed legislation. Rudi Fortson QC told us that “the definition not only encompasses drug substances that are in fact harmful, but also those substances which may be beneficial to a person’s well-being”. He has questioned whether the Government can be confident that substances which are beneficial will not be criminalised, whether prosecutorial discretion will be relied upon, and whether guidelines would be issued.
27.Mr Penning told us he was aware of these concerns, but dismissed them, describing some of the comments about this as “just, frankly, ludicrous.” Following the oral evidence session, he wrote to us explaining that the Bill already contains the list of exempted substances, that any other substance falling within the definition of a psychoactive substance would be caught by the blanket ban, and that “it is not feasible to produce a comprehensive and stable list of all affected psychoactive substances”.
28.From a policing perspective, Commander Simon Bray, the National Police Chiefs’ Council lead on psychoactive substances, told us that the police were confident that the definition had worked in other jurisdictions, and that it was as clear as possible for police officers and law enforcement to operate and for the public to understand. He added that there would be a common-sense approach from law enforcement and prosecutors on what cases were pursued, that guidance would be disseminated, and that “a logical and sensible approach that does not come up with silly prosecutions” would be taken.
29.Despite this, the ACMD have also raised concerns about the broad definition, which has been the subject of a series of letters with the Home Office, and which Home Office officials are working with the ACMD to strengthen. Professor Iversen told us:
In a Bill to ban psychoactive substances, you must have some means of defining what a psychoactive substance is. Just to say that a psychoactive substance is something that causes psychoactivity in human beings is really not adequate. We have tried to address that issue and tried to be helpful in coming up with an alternative definition.
He explained that the ACMD had recommended including the word ‘novel’ but this had been rejected by the Government on the basis that it could not be defined legally with sufficient precision. The ACMD had therefore offered further alternative definitions “which might provide a legally defensible ‘meaning of psychoactive substance’”, recommending the following definition because it retains the concept of the assessment of harm, and it is also closest to that used by the Expert Panel
Psychoactive substances which are not prohibited by the United Nations Drug Conventions of 1961 and 1971, or by the Misuse of Drugs Act 1971, but which may pose a public health threat comparable to that posed by substances listed in these conventions.
30.Professor Iversen told us “We would stand by our belief that the existing definition of psychoactivity in the draft Bill that we have seen is not workable”. He believed that the definition that the ACMD had come up with was “an improvement” on the existing “very loose definition of what is meant by psychoactivity”.
31.The terminology used to describe substances of this nature has long been ill-defined. The use of the term ‘legal highs’ is both misleading and inappropriate. It sends out a message to young people that these substances are both ‘legal’ and will have a ‘desirable’ effect. This has tempted people to experiment with these substances, sometimes with disastrous consequences.
32.Regarding the terminology contained in the Bill, there has been no consultation on the definition of psychoactive substances. We recommend that the Government reconsider the definition of a psychoactive substance, with the benefit of the advice the ACMD have provided.
33 [Bill 63 (2015–16) –EN], 96
34 Napp Pharmaceuticals (), Association of the British Pharmaceutical Industry, the British Generic Manufacturers Association and the Proprietary Association of Great Britain ); Association of Convenience Stores (), National Federation of Retail Newsagents (), Association of English Cathedrals ()
35 Home Office supplementary ()
36 Rudi Fortson QC ()
38 Home Office supplementary ()
41 , ; Home Office ()
45 Qs 34 and 82
Prepared 22 October 2015