“The insertion of a single word will do it … and there you are, out of your difficulty at once”[1]

Last week, a report on the House of Lords debate on the report stage of the Psychoactive Substances Bill in the Church Times carried the headline “Incense could be a legal high, peers are warned,” indicating the possibility that “priests using incense could be criminalized under a new law being introduced by the Government to crack down on so-called “legal highs”. Lord Howarth of Newport [Labour] said

“The expert committee also warned that closer thought needed to be given to possible unintended consequences of the loose and generalized term “psychoactive substances” used in the Bill. We do not want to criminalize priests. The more vigorously the priest swings the censer, the more incense is let loose into the body of the church … we have to be very careful that we do not unintentionally criminalize either priests or florists because flowers have psychoactive effects”.

HL Hansard 14 July 2015 Vol 764(31) Col 469

Given the antipathy to incense by some on account of its ritualistic use, and by others on aesthetic or alleged health grounds, it is timely to unpick some of the available facts in advance of the development of “urban myths” in this area.

Psychoactive Substances Bill

A copy of the Psychoactive Substances Bill (HC Bill 63) as brought from the House of Lords on 22 July 2015 is available here, the Explanatory Notes here, and links to the parliamentary debates here. The Briefing Paper indicated that the Advisory Council on the Misuse of Drugs (ACMD), is the independent expert body that provides advice to the Home office on drug misuse, which defines new psychoactive substances (NPS) as:

“psychoactive drugs which are not prohibited by the United Nations Single Convention on Narcotic Drugs or by the Misuse of Drugs Act 1971, and which people in the UK are seeking for intoxicant use.”

Significant in determining the ambit of the proposed legislation are the two letters from ACMD to the Home Secretary on 2 July 2015 and 13 July 2015, which indicate inter alia:

• The omission of the word “novel” has widened the scope of the Bill beyond that originally intended.

The ACMD would support a “blanket ban” on Novel Psychoactive Substances, but cautions against a blanket ban on all psychoactive substances. It is almost impossible to list all possible desirable exemptions under the Bill. As drafted, the Bill may now include substances that are benign or even helpful to people including evidence-based herbal remedies that are not included on the current exemption list.

• The psychoactivity of a substance cannot be unequivocally proven

The only definitive way of determining psychoactivity is via human experience, which is usually not documented, [i.e. akin to the solution of W S Gilbert’s other learned judge[2]]. However, most psychoactive drugs share similar mechanisms of action, The ability of a Novel Psychoactive Substance to target one or other of these mechanisms can be determined by in vitro neurochemical tests, however, such proxy measures may not stand up in a court of law.

Comment

As it stands, the Bill with its blanket ban on all psychoactive substances and limited exclusion with Schedule 1 seems unworkable – rather like trying to apply the REACH (Registration, Evaluation, Authorisation and Restriction of Chemicals) legislation without limiting its ambit and without the benefit of defined standards of assessment.

Whilst supportive of the scheme as a whole, the Local Government Association, (LGA), comments “if the definition of psychoactive substances in the Bill could capture unintended materials, like incense, then consideration should be given to adding those substances to the list of exemptions in Schedule 1 of the Bill.” The present situation was summarized in the House of Lords debate by Lord Howarth, who said:

“I hope that, by the time this Bill reaches the other place, the Minister and his colleagues will find language which delimits and denotes much more precisely and exactly the drugs which are the evil that we are trying to protect our young people’s health and lives from”.

[HL Hansard 14 July 2015 Vol 764(31) Col 470]

So don’t throw out the Rosa Mystica just yet. At least ecclesiastical law in this area is now settled, following a period during which its ceremonial use was held to be illegal,

“to bring in incense at the beginning or during the celebration, and remove it at the close of the celebration of the eucharist, appears to me a distinct ceremony, additional and not even indirectly incident to the ceremonies ordered by the Book of Common Prayer”

Martin v Mackonochie (1868) LR 2 A & E, at 215

However, Bursell states[3] that in the light of the Archbishops’ comments in The Lawfulness of the Liturgical Use of Incense and the Carrying of Lights in Procession[4], “it can hardly be suggested that the ceremonial use of incense is doctrinally unacceptable”. Nevertheless, a faculty is still required for the introduction of the necessary hardware.

Postscript

The Home Affairs Committee has announced a short inquiry into “New psychoactive substances” which will inform the Commons stages of the passage of the Bill, due in autumn. The inquiry will look at:

• Which groups will be particularly affected by a ban on psychoactive substances? What steps can the Government take to educate these groups about the dangers? How will the Government explain the change in the legal status of these substances?
• What specialist treatment do users of psychoactive substances require? What can be done to counter a shift to using controlled drugs once there is a ban?
• Do the enforcement agencies have the necessary powers and resources to effectively enforce the proposed new laws?

and the Committee would welcome views on these and any other relevant matters. In view of the possibility that the ecclesiastical use of incense may fall within its ambit as an unintended consequence of the Bill’s poor drafting, we would strongly advise anyone potentially affected to make a written submission advocating the inclusion of a specific exemption in Schedule 1 of the Bill.

[1] Unlike in Iolanthe, in this case the critical word is “novel”.

[2] “The question, gentlemen – is one of liquor: You ask for guidance – this is my reply: He says, when tipsy, he would thrash and kick her, Let’s make him tipsy, gentlemen, and try!” [Trial by Jury, 1875].

[3] R D H Bursell, Liturgy, Order and the Law, (Clarendon Press, 1996) 77.

[4] Lambeth Palace, July 31, 1899.