In the last week, two prosecutions for supply of nitrous oxide (laughing gas) under the Psychoactive Substances Act 2016 have collapsed. In both cases, it was accepted that nitrous oxide was a medicine, and as such was exempt from the Act. When the Government introduced the draft of this legislation to Parliament it was warned by experts, including its own advisers the Advisory Council on the Misuse of Drugs ('ACMD'), that it was fundamentally flawed and unworkable. Once again though, the Government ignored expert evidence and steamrolled the legislation through Parliament, preferring to be seen to be doing something about so called 'legal highs' - the usual 'tough on drugs' approach.
The Act itself should concern everyone. Rather than banning substances based on supposed harms, it seeks to ban everything that has a potential psychoactive effect including alcohol, tobacco, and medicines (these substances are then exempted from the remit of the legislation). The determination of psychoactivity, and therefore if an offence has been committed under the Act, is based on how a substance interacts with your central nervous system and whether it affects 'mental functioning' or 'emotional state'. This too is a legally flawed definition as it is hard to see how the prosecution can establish if a substance has affected 'mental functioning' or 'emotional state' through laboratory tests, as these are human experiences. Arguably, seeking to control our receptors through the law is also Orwellian in approach.
The Psychoactive Substances Act is not the Government's only failure when it comes to UK drug policy. By its own admission the criminal justice approach to drugs is not working. In July 2017 the Home Office published a review of the 2010 Drugs Strategy and found that drug markets were 'resilient' and that law enforcement has little impact on the availability of drugs. The evaluation also stated that any 'disruption' to the drug market resulting from law enforcement actions was 'short lived'. Not only is law enforcement having little to no impact on the drugs trade but it has no deterrent effect on consumption; this was the conclusion of a Home Office report in 2014 that compared the drug policies of eleven countries, some of whom took a tough criminal justice approach such as Japan and Sweden, and countries that took a more progressive stance like Portugal.
Despite the fact that the Home Office know the Psychoactive Substances Act is a legislative mess, that law enforcement has little to no impact on the drugs market, and that the use of drugs is not deterred by the threat of criminal sanctions, they continue regardless. Even worse, the standard line from the Home Office when anything related to drug policy arises is 'Our drug policy is working, drug use is falling'. This is disingenuous at best as the number of people using drugs according to the Crime Survey for England and Wales has remained stable since 2010. What is worse is that the harms associated with drugs has increased exponentially under this Government.
Drug-related hospital admissions are up and drug-related deaths are at an all-time high, with the UK reporting one in three of all drug deaths in Europe. Heroin and morphine deaths have rocketed, with over 1,600 people dying in 2016 - a staggering 109 per cent increase in the last four years. The UK need only look at Portugal to see what can happen when drugs are treated as a health issue rather than a criminal justice one. The Portuguese ended criminal sanctions in 2001 and invested heavily in harm reduction - their rate of drug related deaths is 6 per million whereas in England and Wales it is 66 per million, Scotland is 150 per million. Clearly we are doing something terribly wrong.
Moreover, whilst the Government knows that criminal sanctions do not deter use, they continue to pursue a policy that sees around 50,000 people being criminalised every year for simple possession offences. Young people are disproportionately affected by the laws and the damage of a criminal record is untold, impacting on employment, education and even travel to other countries. The stigma suffered by those who have been criminalised can have life-changing effects.
The Government's drug policy is shambolic and evidence-free. Ministers are obsessed with measuring success based on the numbers of people using drugs, rather than focusing on reducing harms. There needs to be wholescale reform of the UK's drug policy, with a focus on harm reduction and - in the first instance - decriminalising drug possession for personal use. If the Government wants a strategy that works and that protects people, it really is time they listened to the experts.