How did the mind-boggling new drugs bill make it through parliament?

What the blazes is going on? Shutterstock

There are two things that politicians tend to be bad at: sex and drugs. Thankfully, MPs’ recent visits to our bedrooms have tended to be brief, and usually have left us in a more liberal place than we were before. But drugs? Politicians can really get their teeth into drugs – with often messy results.

The Conservative party was elected in 2015 with a clear majority, and therefore a mandate to start work on its manifesto pledges. One of these promises was to address so-called “legal highs” – a project that birthed the Psychoactive Substances Bill. The Commons and the Lords are now reviewing each other’s final amendments, the bill’s final stop before becoming law.

What problem does the Psychoactive Substances Bill hope to solve? Currently drugs are regulated by the Misuse of Drugs Act which classifies controlled substances according to their “harms” and specifies penalties associated with using, supplying or trading in those drugs. But the drugs world moves quickly, and new drugs come to the market frequently.

The bill is designed to get ahead of this flair for innovation, and to presume that any substance that acts on a person’s mental state is dangerous until shown otherwise. The bill excludes substances that are dealt with elsewhere, such as alcohol or nicotine, and leaves the controlled drugs to the Misuse act. The Psychoactive Substances bill therefore mops up the remainders.

But rather than cleaning up a mess, it’s made a whole new one.

All over the place

For the purposes of this bill, a psychoactive substance is defined as such if “by stimulating or depressing the person’s central nervous system, it affects the person’s mental functioning or emotional state”. The bill then lists classes of substance that are not to be included. So controlled drugs are left to the Misuse act; medicines, alcohol and nicotine have their own laws; and foods have their own system of safety and acceptability.

But the lack of a strict list of included substances has led to considerable confusion. Many Christian churches burn incense during services, to heighten the religious experience. The Home Office has had to assure church leaders that the law would not be used to criminalise priests, although the current form of the bill does not address this explicitly – which means that incense is technically illegal.

Trippin’. Shutterstock

The stand-out moment in the debate was when Conservative MP Crispin Blunt revealed himself to be a regular user of alkyl nitrite, or “poppers”, as are many gay men. An amendment to remove these from the bill failed to gain enough votes to pass.

A government body is now set to investigate these substances, but, as Mr Blunt stated during the debate, it is “bordering on crazy to then ban these substances with a view to unbanning them in two or three months’ time”.

Illegal, until it isn’t

Another amendment which failed was the proposal to exclude cognitive enhancing drugs. Cognitive enhancers are a topic of huge scientific and ethical interest at the moment. Drugs such as modafinil (which is already classed as a medicine) may increase cognitive performance in cognitively healthy people, which has led to their use on university campuses as a study aid.

Although covert use of these substances is generally considered to be unfair, it could be argued that widespread cognitive enhancement is good for society as a whole if deployed responsibly. Outlawing these drugs risks shutting down what could be a productive and healthy debate.

The original formulation of the bill failed to make an exemption for properly qualified researchers to use the drugs to explore possible harms and benefits, a gap that the final amendments agreed by the House of Commons are meant to plug. Various psychoactive drugs are recognised as potentially beneficial, at least if the relative harms and benefits are understood. Allowing researchers to test these harms and benefits in the same controlled conditions as they do in other clinical trials could create a crucial avenue for medical drug discovery.

But a second, largely overlooked benefit to allowing clinical research is that looser regulations can allow for better-informed policy. Rigorous exploration of the effects of psychoactive drugs may lead to the conclusion that the harms are overstated compared to the costs of enforcing the legislation. That a research amendment has been accepted is a sign that politicians may be more receptive to expert opinions than they have been in the past.

Still, despite that ray of hope, the bill still leaves us in an absurd position. The UK now has a legal structure that criminalises substances that have been in common use for centuries and seemingly without significant risks. It is also not entirely clear what other harms will be avoided. Aside from a few high-profile cases, we simply do not properly understand what risks people take when they consume novel psychoactive substances.

While we can debate the extent to which the government is responsible for protecting us from danger, it’s clear that diverting police and court resources to these drugs will inevitably draw resources from other areas. And even as further research into the newly-banned substances may reveal that the government’s worries are unfounded, adding to the list of unbanned substances and curtailing the prohibited list, surely our money could be better spent.