Legal highs ban delayed by ministers amid worries it is unenforceable

The Government has delayed imposing its blanket ban on legal highs amid concerns about whether it can be enforced.

The ban contained in the Psychoactive Substances Act 2016 was originally due to come into effect on 6 April, but missed legal deadlines mean it will now be pushed back until at least May.

Ministers quietly issued a garbled justification for the delay, citing continued work on the police’s ability to “drive forward the legislation on commencement”.

Part of the ban has already been shot down after the Advisory Council for the Misuse of Drugs (ACMD), a body with official standing in law, said it did not consider so-called Poppers to be covered by the new rules.

Ministers initially believed they had in fact banned Poppers with the Act.

“We expect to commence the Psychoactive Substances Act in its entirety in the spring,” Home Office minister Karen Bradley said in a parliamentary written answer issued on 24 March, just before MPs went back to their constituencies for recess.

“We need to ensure the readiness of all the activity necessary to enable the smooth implementation of the legislation across the UK and to support law enforcement in their ability to drive forward the legislation on commencement.”

The parliamentary written answer was first reported by the Guardian newspaper.

Despite the Act passing through Parliament and receiving Royal Assent, Hampshire police wrote to the owner of a Hampshire-based headshop – outlets specialising in cannabis and tobacco paraphernalia – confirming the delay.

“A new date for commencement has yet to be confirmed,” the letter, published by the Alternative Trade Association, said.

The Act states any substance “stimulating or depressing the person’s central nervous system” or affecting “the person’s mental functioning or emotional state”, will be made illegal.

While welcoming a ban on synthetic cannabis and “legal” alternatives to drugs such as MDMA and cocaine that the legislation will bring, critics of the Act said the wording meant anything deemed psychoactive under an arbitrary definition would be banned.

Police Scotland and the Scottish Government told a Commons home affairs inquiry last year that that the definition of a psychoactive substance might be problematic in ensuring successful convictions.

Ireland introduced a similar law five years ago, but there have been few prosecutions to date because of difficulties in proving whether a substance is psychoactive.

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Substances in everyday use, such as alcohol, nicotine and caffeine, are exempt under the UK Act. Poppers were also exempted because the Advisory Council on the Misuse of Drugs (ACMD) suggested they were not psychoactive under that definition.

The Home Secretary’s own expert drug advisers wrote to Theresa May telling her the legislation risks handing out seven-year prison sentences to the sellers of benign or even helpful herbal medicines, criminalising otherwise law-abiding young people and making the “directors” of pubs, clubs and even prisons liable for prosecution.

The ACMD said introduction of a blanket ban on legal highs risked “serious unintended consequences” and was unenforceable unless it is completely rewritten.

A Home Office Spokesperson said: “The landmark Psychoactive Substances Act will fundamentally change the way we tackle these drugs and put an end to unscrupulous suppliers profiting from their trade. Our message is clear: offenders will face up to seven years in prison.

“In line with the advice of the Advisory Council on the Misuse of Drugs, the Government is in the final stages of putting in place a programme of testing to demonstrate a substance’s psychoactivity prior to commencement of the Act.”

Ministers must give Parliament 21 days notice to implement the ban, and with the House of Commons in recess the earliest possible implementation date is 1 May.