Psychoactive Substances Act 2016

Since around 2008/09, the UK has seen the emergence of new substances or products that are intended to mimic the effects of traditional drugs that are controlled under the Misuse of Drugs Act 1971 ("the 1971 Act") such as cannabis, cocaine, amphetamine, MDMA (ecstasy) and, more recently, opioids. These are collectively known as new psychoactive substances ("NPS").

These new substances - together with other substances that have been used as intoxicants for many years (for example, nitrous oxide) - are often referred to as "legal highs": which in the Government's view is inappropriate given that the chemicals in them are often neither legal nor safe for human consumption.

NPS are difficult to identify and currently have to be regulated on a substance by substance, or even group by group, basis because of their diversity and the speed with which they are developed to replace drugs that are controlled under the 1971 Act. Chemical structures can be modified to create a new substance which falls outside any existing drug controls. They are also coming onto the market before a full understanding of their health and social harms can be developed. According to the European Monitoring Centre for Drugs and Drug Addiction, 101 new substances were identified in the European Union in 2014, continuing a five year upward trend, from 24 in 2009. Not all these substances reach the UK; 11 new substances were identified in the UK in 2013.

Many NPS are only legal because they have not yet been assessed for their harms and considered for control under the 1971 Act – not because they are inherently safe to use. Most will not have been tested on either humans or animals, and the purity of the products is unknown. The Home Office’s Forensic Early Warning System tested 968 samples of NPS in 2013/14, of which, 19.2% of NPS found within the samples were controlled drugs. And there are examples where products with the same brand name (like "Black Mamba" or "Sparklee") purchased from the same supplier did not necessarily contain the same mixtures of ingredients. Many of these substances are labelled "not for human consumption" and advertised as "research chemicals", but it is clear that this is not their real purpose.

The threat to public health of some new substances may be comparable to that caused by controlled illicit drugs. Deaths related to NPS in England and Wales doubled in the past four years from 26 in 2009 to 67 in 2014. In 2014, there were also 62 deaths in Scotland where NPS were present in the body.

This table highlights the increase in the numbers of deaths related to NPS in England and Wales between 2007 and 2013:

In addition to the health risks, a number of local authorities have expressed concern that "head shops" (commercial retail outlets specialising in the sale or supply of NPS together with equipment, paraphernalia or literature related to the growing, production or consumption of cannabis and other drugs) in their areas are causing increases in anti-social behaviour. The local authorities are concerned that customers purchase psychoactive substances, and in some cases use them close by, with the resulting loss of inhibition causing them to act in an anti-social and sometimes criminal manner.

While the emergence of new drugs is not in itself a new phenomenon, the speed and scale at which substances are now emerging distinguishes the current situation from previous years in which the drugs market was relatively stable. In order to address this issue, in 2013 the Government commissioned the New Psychoactive Substances Review Expert Panel to review the existing legislative approach (see below). They stated that: “…after years of stable and declining drug use, the emergence of NPS has been a “game changer”".

In response to this threat the UK has a number of measures currently in place. Under the 1971 Act, substances can be controlled on an individual or on a group basis, following an assessment of their physical and social harms by the Advisory Council on the Misuse of Drugs ("ACMD"). Over 500 psychoactive substances have been permanently controlled since 2010, using the existing mechanism provided under the 1971 Act. One additional measure is the introduction of temporary class drug orders ("TCDO") in 2011, specifically to temporarily control NPS through a faster parliamentary mechanism (see below). Alongside this, a range of existing alternative legislation such as consumer protection and anti-social behaviour legislation has also been used (with limited success) to tackle the availability of non controlled NPS and associated issues. Despite these measures, the Government considers that the current approach to tackling psychoactive substances is both piecemeal and disjointed. In the view of the Government, the ineffectiveness of the current approach is demonstrated by the fact that head shops and online retailers continue selling NPS openly.

Against this background, the Government announced, on 12 December 2013, the appointment of an Expert Panel to undertake a review into NPS (House of Commons, Official Report, columns 57WS-58WS).

The Expert Panel comprised representatives from: medicine, social science, forensics, law enforcement agencies (police, Border Force and the National Crime Agency), local authorities, prosecution, and education/prevention including from the voluntary sector. Several international representatives from a similar range of fields were also included.

The Expert Panel's terms of reference (as set out at page 4 of the Panel's report) were to:

• analyse the problem to address and consider:

  • the nature of the NPS market;

  • the effectiveness and issues of the UK’s current legislative and operational response;

• identify legislative options for enhancing this approach;

• consider the opportunities and risks of each of these approaches, informed by international and other evidence; and

• make a clear recommendation for an effective and sustainable UK‐wide legislative response to NPS.

In addition, the Panel was asked to consider the education, prevention and treatment response to NPS and make recommendations.

In its September 2014 report, the Panel found that the current UK legislative approach was unlikely to get ahead of developments in the NPS market. It concluded that the control process for substances under the 1971 Act was now a repetitive advisory and parliamentary process with significant resource implications. The process requires evidence of physical or social harms caused by a substance (or evidence that it is capable of causing such harm) to justify its banning under the 1971 Act, which is currently lacking, given how quickly psychoactive substances appear. It argued that the end result was an inevitable time lag between an NPS coming onto the market and a response under the 1971 Act.

The Panel considered that TCDOs have afforded the Government an additional legislative tool where there is a pressing need to legislate fast (that is, in weeks, not months), but that they were not designed to deal with the volume of NPS that continue to be identified. The Panel found that the use of consumer protection legislation has not provided a complete solution to tackle availability as it was not designed to deal with the particular issues that are associated with NPS. Whilst there have been some successes, there are a number of barriers preventing its effective use, and consequently it was not providing a sustainable response to this issue.

This led the Expert Panel to recommend that the Government should legislate to prohibit the distribution of non-controlled NPS, focusing on the supply, rather than those using NPS. The Panel also recognised the importance of building on the work of central and local government, the third sector and other providers to enhance the response to the challenges in relation to intervention and treatment, prevention and education, as well as information sharing. In its response to the Panel's report, the Government announced its intention to develop proposals for a blanket ban similar to that introduced in Ireland in 2010 (House of Commons, Official Report, 30 October 2014, columns 28WS-29WS).

In May 2015, the Government was elected with a manifesto commitment to "create a blanket ban on all new psychoactive substances, protecting young people from exposure to so-called legal highs”.

The Scottish Government separately appointed its own Expert Review Group in June 2014 to review the current legal framework available to govern the sale and supply of NPS. The Review Group's report was published in February 2015 and concluded that there were a number of benefits to the Irish model, which could strengthen the tools that are currently available and being used by agencies to tackle NPS supply in Scotland. The Review Group recommended that the Scottish Government and the Home Office should work in partnership to create new legislation that will be effective in Scotland. The Minister for Community Safety and Legal Affairs (Paul Wheelhouse) indicated that, on behalf of the Scottish Government, he was minded to accept the recommendations of the report (Scottish Parliament, Official Report, 26 February 2015, column 40).

The National Assembly for Wales Health and Social Care Committee launched an inquiry into NPS in June 2014. In its report, published in March 2015, the Committee welcomed the Home Office's Expert Panel's recommendation of a ban on the supply of NPS in the UK, similar to the approach introduced in Ireland. The Committee recommended that the Minister for Health and Social Services work closely with the UK Government to ensure early action is taken to progress the Expert Panel's recommendation (see recommendation 13 on page 76 of the report).