5 Reasons why the New ‘Psychoactive Substances Bill’ should be scrapped, and 1 Reason to commend it


The New ‘Psychoactive Substances Bill’ is an example of the government playing to the populist gallery by closing down visible sales of New Psychoactive Substances ('NPS', sometimes unhelpfully labelled as ‘legal highs’) via high street ‘head shops’.  It will conveniently also sideline its own ‘troublesome’ experts - the Advisory Council on the Misuse of Drugs (ACMD).  ‘Head shops’, and the products they sell, need strict legal regulation, but the current Bill will simply close them in a way that causes more harm than good. Whilst making the problem less visible, the Bill will serve to hand the market to criminals both online and on the streets.


1.  Prohibition created NPS in the first place

  • NPS appeared as an unintended, but totally predictable consequence of the prohibition of drugs covered by the Misuse of Drugs Act 1971 (MDA). As the UN Office on Drugs and Crime has identified, ‘substance displacement’  of users from one drug to another is an ‘unintended consequence’ of drug enforcement efforts
  • NPS have emerged as legal alternatives that mimic established drugs like  cannabis, MDMA and magic mushrooms. If some of these more established but currently prohibited drugs were available through legally regulated oulets, the NPS phenomenon would largely disappear. There is, for example, no market for synthetic cannabis in the Netherlands where cannabis is sold from licensed premises - because people prefer it and it is substantially safer1

2.  Blanket bans in Ireland and Poland have caused more harm and deaths

  • The UK’s NPS Bill is not based on any proper assessment of other countries’ ‘blanket bans’
  • The Irish 2010 blanket ban closed down most of the ‘head shops’, but the market simply moved to the street and online. NPS use in Ireland has increased from 16% in 2011 to 22% in 2014, with use amongst young people (16-24) the highest in the EU2. A third of young people say obtaining NPS within 24hrs is ‘easy’3
  • Poland’s blanket ban temporarily decreased ‘legal high related poisonings’. But NPS remain available via international online markets, and three years later poisoning reports are above pre-ban levels4

3.  The government  did not consult ACMD or key stakeholders on the Bill

  • The ACMD was only consulted AFTER the Bill was drafted, despite their competence, authority and legal remit under the Misuse of Drugs Act 1971 (MDA) to advise government – yet NPS are one of two ‘priorities’ on the Home Office ACMD website5. Some ACMD members are understood to be furious
  • The Home Office did convene an ‘expert group’ in 2014, but half were from enforcement, compared to 2 out of 27 on the ACMD, and this does not explain why the ACMD were not consulted once a decision to draft the Bill was taken
  • It may be because in 2014 the ACMD recommended  to not prohibit khat (but were overruled by the Home Secretary), and this year to not prohibit Nitrous Oxide  - which will be banned under this Bill
  • Despite the scope and impacts of the Bill there has been no public/stakeholder consultation process as recommended in Cabinet Office guidelines

4.  The Bill is possibly the most badly drafted legislation since the Dangerous Dogs Act

  • The definition of ‘psychoactive substances’ is so broad it potentially includes a wide range of plants, spices, herbal remedies, over-the-counter medicines, and household and industrial products
  • Neither the NPS Expert Group, the ACMD or any other body, including the Home Office has explained the legal parameters of such a definition, or how police are supposed to enforce it
  • Proving psychoactivity to a court will be near impossible without human testing – both impractical and unethical. In Ireland harmful NPS have remained on sale for this reason6
  • No distinction is made between very harmful NPS, such as synthetic opiates, and relatively safe NPS, such as laughing gas. It is indiscriminate and will lead to misallocation of resources, and disproportionate enforcement
  • It creates new police powers to stop and search individuals and search premises – but no consideration has been given to whether these are proportionate, how they should be enforced, or the impacts on youth/community/police relations
  • The UK will have a bizarre three-tier system under which drugs of equivalent risks are prohibited/criminalised (under the MDA), prohibited/criminalised for supply but not possession (under the NPS Bill), or legal and regulated (caffeine, alcohol and tobacco)

5. The Expert Group’s recommendation to allow exemption or regulation of low risk NPS  has been ignored

  • The Expert Group proposed there should be exemptions for substances "where the risks of health and social harms can be adequately assessed" to ensure low risk products could be excluded from the ban, and regulation of them if possible
  • There are currently only two options for NPS - an unregulated market with only inconsistently applied voluntary controls, or prohibition (under a temporary banning order or the MDA)
  • The NPS Bill has no option allowing exploration of the spectrum of regulated market models that exists between free markets and total prohibition; as used for alcohol, tobacco, solvents, and pharmaceuticals, or for cannabis in the US, Uruguay, the Netherlands and Spain
  • It will also interfere with or even prevent research into potentially life-saving medicinal products
  • The Expert Group acknowledged the potential benefits of the New Zealand model which allows for licensing the sale of NPS that can be shown to be low risk, and recommended it be monitored. This policy is struggling with technical and political challenges7, but shows pragmatic new thinking is possible


One reason to commend it:

  • The Expert Group saw criminalisation of young people for possession of NPS as a harm to be avoided. This recommendation was accepted by the government. However, this logic is not applied to drugs - of comparable risk - covered by the Misuse of Drugs Act, as the ACMD has twice previously recommended8. There is no explanation of this obvious inconsistency.
  • The criminalisation of importation under the Bill still threatens to criminalise many young people who knowingly or not, buy from offshore online retailers who will inevitably fill the gap when ‘head shops’ close


Transform Recommendations:

There are a range of sensible suggested amendments to the Bill9, as well as changes suggested by the government. Whilst they may reduce some of it more obvious problems, they cannot remove the wider harm-inducing effect that the Bill will have.  We recommend:

  • That the Bill be withdrawn
  • A full Impact Assessment of similar legislation in Ireland and Poland to understand the likely long term effects on the NPS and other drug markets in the UK of a prohibitionist approach
  • The ACMD be fully consulted on all aspects of any future proposed drugs legislation
  • Formal public consultation as outlined in the Cabinet Office’s Consultation Principles on any proposed legislation
  • To fully consider more effective alternatives through carrying out an independent Impact Assessment of the entire MDA. The issue of NPS should not be seen in isolation, and any proposed legislation regarding NPS should consider the evidence for alternative approaches - including legal regulation - of all substances currently controlled by the MDA, and those emerging NPS not currently subject to control.



Danny Kushlick, Head of External Affairs   danny@tdpf.org.uk  07970 174 747
Steve Rolles, Senior Policy Analyst steve@tdpf.org.uk 07980 213 943


1. https://www.youtube.com/watch?v=zikajDwWjRM
2. http://ec.europa.eu/public_opinion/flash/fl_401_en.pdf (p.8)
http://ec.europa.eu/public_opinion/flash/fl_401_en.pdf (p.29)
http://www.cinn.gov.pl/portal?id=15&res_id=656250 (p.125)
6. http://www.bbc.co.uk/news/uk-33226526
7. http://drugfoundation.org.nz/matters-of-substance/psycho-psychoactive-legislation
8. http://transform-drugs.blogspot.co.uk/2011/10/acmd-repeats-call-for-decriminalisation.html
9. http://services.parliament.uk/bills/2015-16/psychoactivesubstances.html