Progress and further insights on the Psychoactive Substances Bill
An earlier post noted the potential criminalization of the liturgical use of incense, identified by Lord Howarth of Newport (Lab) during the report stage in the House of Lords of the Psychoactive Substances Bill. The Bill had been introduced by Lord Bates on 28 May 2015 and completed its third Reading in the Upper House on 20 July; its first reading in the Commons was on 21 July; and on 22 July the Home Affairs Committee announced that it would hold a short inquiry into “New psychoactive substances” which will inform the Commons stages of the passage of the Bill, due this autumn. Written submissions were invited, and we strongly advised anyone potentially affected to make a written submission advocating the inclusion of a specific exemption in Schedule 1 of the Bill.
The closing date for the submissions was 2 September, and of the six responses, two concerned the liturgical use of incense; the written evidence from the Churches’ Legislation Advisory Service, (CLAS); and that from the Association of English Cathedrals. Other responses were from Mentor, “the UK’s authoritative voice on protecting children and young people from the harms of alcohol and drugs”; Mr George Entecott, a recovering addict, who details his personal views based on his own experience; NAT, (National AIDS Trust), “the UK’s leading policy and campaigning charity on HIV”; and Napp Pharmaceuticals, “one of a number of privately owned, worldwide, independent associated healthcare companies. Napp is a leader in the field of pain management and has been committed to furthering the understanding and treatment of pain for over thirty years.”
Oral evidence was taken from Commander Simon Bray, National Police Chiefs’ Council lead on psychoactive substances on 8 September, [Q1 to Q14], and from three other groups of witnesses on 15 September: Professor Les Iversen, Chair, Advisory Council on the Misuse of Drugs, [Q14 to Q84]; Rt Hon Mike Penning MP, Minister for Policing, Crime and Criminal Justice, Home Office, [Q85 to Q138, psychoactive substances from Q122]; and Dr Owen Bowden-Jones, Consultant Psychiatrist and Lead Clinician for Club Drug Clinic, Addictions Directorate, Central and North West London NHS Foundation Trust, and Jan King, Chief Executive, and Jeremy Sare, Director for Communications and Operations, Angelus Foundation, [Q139 to Q168].
It is clear from its Explanatory Notes, that the Psychoactive Substances Bill was introduced to address the significant and growing problem resulting from the relatively recent (2008/9) emergence of new substances or products that are intended to mimic the effects of traditional drugs subject to controls under the Misuse of Drugs Act 1971. There is a possibility that the liturgical use of incense might be construed as falling within the ambit of the Bill in its present form, and the CLAS and the AEC have rightly raised their concerns and offered potential solutions: the preferred option of a specific exemption for the use of incense in places of worship to be inserted into Schedule 1 to the Bill; or a firm ministerial assurance – on the record – that the legislation is not intended to extend to the liturgical use of incense to the Bill, i.e. one that would give a degree of legal certainty to the intentions to the minister.
With regard to the former option, the following exchange between the chair, Mr Keith Vaz, and the Rt Hon Mike Penning MP, Minister for Policing, Crime and Criminal Justice and Victims, Home Office, suggests that this is a possibility:
“Q124 Chair: Is it possible to have that list of legal and harmless substances that are exempt from the Bill, because laughing gas is one of the other substances that is mentioned?
Mike Penning: Yes.
Chair: When can we get it?
Mike Penning: We will be working on the list. It will be when we get to second reading, which I hope will be in November, and I think we will be able to publish then.”
More broadly, the oral evidence sessions raised other interesting legal issues. Professor Iversen, Chair of the Advisory Council on the Misuse of Drugs, expressed an unease at the drafting of the Bill, [Q16], and although he had met with the Home Secretary, did not believe that any of the main problem areas had yet been addressed. Fundamentally, there was the inability to prove psychoactivity in a court of law, “which is pretty fundamental to a Bill that seeks to ban psychoactive substances” … “Just to say that a psychoactive substance is something that causes psychoactivity in human beings is really not adequate [Q20]”.
The insertion of the word “novel” to describe psychoactive substances had been discussed and whilst “most people seem to be aware of what we are talking about but the lawyers said “novel” is not a word that can be defined legally with sufficient precision. So the Government then dropped “novel” and … but we think in so doing they may have lost sight of the original intention, [Q27]”. Importantly, Professor Iversen stood behind the belief of him and his group that the existing definition of psychoactivity in the draft Bill that they have seen is not workable, [Q34].
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