‘Legal high’ ban risks dragging us into a
positive system of law

Filling minutes of otherwise dead air to scare parents at the end of news broadcasts, the mythical legal high menace rears its head every other day, it seems. Now, the Government seeks to put an end to it once and for all with its blanket ban promise. Alas, it is an unscientific, unworkable, populist policy, and a worrying flash of authoritarian colours.

First, there is the inherent trouble of trying to outlaw a group of substances whose primary, unifying identifier is that they are not illegal. How anyone can maintain their composure, earnestly advocating the prohibition of something with ‘legal’ in its name, is beyond my comprehension.

This is no doubt why the term Novel Psychoactive Substance was coined, although it seems rarely used except on official reports, probably because the three-word phrase is decidedly more complex and subtle than the policy it was created to support. There are two qualities to each chemical to be done away with which are rather mighty hurdles to the effective implementation of any ban across the board. The first is, naturally, that it is not currently prohibited. The legality of the so-called NPS is quite the thorn in the side of any such policy, for obvious reasons.

The second is the matter of how we define ‘psychoactive.’ I am rather enjoying writing this post, for example, and reinforcing neurotransmitters are coursing through my brain to induce pleasure – much as they might under the influence of a drug, or hearing some good news, falling in love or winning the lottery. Life is psychoactive. The success of a complete NPS ban thus comes down to judging whether the purpose of a substance is purely to have a psychoactive effect, and establishing that it is being supplied for that same purpose.

Yet another set of stumbling blocks; the new law will seek to exempt, rather than prohibit. An attempted blanket ban calls for freedoms bestowed by the state, the presumption of guilt, and the prescription of a nice little list of acceptable behaviours for the citizen to abide by.

Coffee, painkillers, alcohol, tobacco, and a host of other products on the supermarket shelves are as psychoactive as it gets, so they will be neatly jotted down under the exceptions. What of the young man who finds himself in possession of a non-approved substance, though? No law describes or proscribes it, but it is implicitly deviant if deemed ‘psychoactive.’

What is the measure of this terrible power it holds? Perhaps its ability to induce pleasure is the tell-tale sign, although many might find the use of psychedelics, dissociatives, or deliriants to be quite unpleasant. If we cannot even guarantee that the legal high causes a ‘high’ in the colloquially-understood sense of the word, we can hardly separate its use from the ingestion of any number of poisons – probably psychoactive, but hardly similar.

So the proof is said to lie in the intent underpinning manufacture and supply. Such an approach will probably hit a few head shops selling pills with brand names alluding to Class A material, under the counter in shiny packaging, but that accounts for a minuscule portion of the market.

The internet is where the trade flourishes, and the operators of these enterprises are meticulous in staying on the right side of the law. The major players are indistinguishable from laboratory supply firms. Products are advertised with molecular structures, IUPAC (International Union of Pure & Applied Chemistry) nomenclature, and are accompanied by spectrographic analysis demonstrating purity. Customers agree to terms and conditions expressly forbidding any in vivo experimentation, and this is reiterated on the packaging when an order comes through the letterbox.

The requisite hazard warning symbols adorn sterile packages with unpronounceable names. No matter how much the prohibitionist might wring their hands with exasperation, insisting that the whole affair is a charade, there is no evidence of it. Since the efficacy of the planned legislation ultimately rests on this, there are two possible outcomes.

Either it is completely unworkable, or we shall find ourselves subject to arbitrary rulings based on hunches and prejudice, because the law is so vague and impotent that it demands the dismantling of fair justice. The former is likely; the latter is just likely enough to not be quite as egregiously hyperbolic as it looks at first glance.

Faith wavering, the only remaining source for some reassurance of reason must be in questioning why the drive to criminalise exists. Setting aside my own individualist belief in my absolute corporeal sovereignty, for the sake of argument, one must address the only justification for prohibition backed by any semblance of logic – harm reduction.

The purpose of our three-way classification system is, theoretically, to categorise drugs by their potential harmful consequences, both to the individual and society, and punish transgressions accordingly. But harm reduction, sadly, has time and time again been proved a sordid fiction.

Governments blue and red consult their scientists before proceeding exactly as they want to anyway. David Nutt, sacked for comparing the dangers of horse-riding and ecstasy, was hounded for an apology and a retraction of his statement – a statement which, at its core, stated two numbers and correctly identified the greater of them.

Since his dismissal, no ACMD (Advisory Council on the Misuse of Drugs) recommendation to downgrade has been heeded, but every upgrade request has. Scientific consensus places alcohol second only to long-term heroin and cocaine abuse in its harm potential, but it shall remain on the list of the chosen, tax-laden intoxicants.

Meanwhile the last round of temporary classifications, 12 month embargoes upon supply inevitably leading to an A to C classification, contained a number of chemicals. They had been implicated in four deaths EU-wide in as many years, and in only one case was the new contraband the sole intoxicant, conclusively identified as the cause of death. There is no science; there is no reason. Harm reduction is a lie.

With this stripped away, all that remains is a morally-authoritarian diktat, a non-partisan panem et circenses situation tied to the perennially inflammatory and ill-informed headlines. And above all, for it to succeed, it would require a disastrous blow to liberty and law. Here’s hoping it doesn’t.