Legally Illegal

I have been reading a lot recently about how poppers are going to be “made legal”.  This is faintly annoying.  Poppers were legal; are legal, and, so far as we can tell, always will be legal: their status in the legal canon remains stoically unaltered.

Poppers are on a long list of things that I knew nothing about and would probably never have had any reason to become aware of but for my job, ( like tin ingots, Morgan sports car brakes and great crested newts).  Poppers, as the whole of the licensing world is now well aware, make a “popping” sound when opened, and, although marketed primarily as room odourisers, are generally inhaled by persons who really have no further interest thereafter in what the room smells like.  The precise effect of poppers on the body has become the subject of slightly obsessive interest, as the Government has struggled to decide whether to include them in the proud work known as the Psychoactive Substances Act.  The title alone of this magnum opus was the subject of much anxious consideration – the object of the exercise being to legislate against the products that have become colloquially known as “legal highs”. The problem with this is that you can’t continue to refer to said products as “legal highs” when you are in the very process of outlawing them. That would make them illegal legal highs, and would have upset the criminal judiciary very much.

So the challenge has been how to define, describe and ultimately ban “legal highs”. There was much back-patting and rolling of cigars, I am sure, when the total range of the substances under suspicion was neatly encapsulated by their universal capacity to produce a “psychoactive effect” – namely, by “stimulating or depressing a person’s central nervous system, affecting the person’s mental functioning or emotional state”. By this definition, my husband, all three of my children and both dogs are psychoactive substances, and so too, as the Government quickly found out, are very many other surprising and, indeed, utterly predictable things as well. Such as alcohol. Nicotine.  All drugs. Church incense. And almost the entire Yardley product range; (other 60’s perfumery items are available. Still. Probably). Those unfortunate unwanted stimulatory taggers-on were neatly and promptly dealt with by making them exemptions, which is an elegant legislative solution, I think.  Define a category of items as being illegal and then make a long list of things that are in that category and meet that definition but are not illegal. What confusion could possibly result?  In fact, it would probably make life easier if we always legislated like that – nice and wide, with a long list of exemptions.  How about my starter for ten:

The Bad Things Act 2016 

S.1(1) “It shall hencetoforward and forevermore be illegal to make, sell, produce, supply, knit, lick or profit from a Bad Thing”.

Interpretation.

2.  “For the purposes of the exercise, “Bad Thing” means anything which is primarily intended for a bad purpose and no good shall come of it”.

Schedule 1.

Exemptions. 

“For the purposes of this Act, and generally, the following shall not be regarded as a Bad Thing:

(a) Candyfloss.

(b) Creosote.

(c)  Leather.

(d) Shoes for cats.

[etc, etc..see Volumes 1 – 18.]”

And already – so much to debate.  So many fist fights in the draftspersons drafting rooms.

But the Government thought it was nearly there with legal highs. Psychoactive substances were out there, ready to be consumed, and they could be consumed in alarmingly passive ways:
“ For the purposes of this Act a person consumes a substance if the person causes or allows the substance or fumes given off by the substance to enter the person’s body in any way”.

It is a sobering thought to realise that we all undoubtedly “allow” fumes given off to enter our bodies and thereby satisfy the terms of this section every time we get on a crowded tube train on a warm day.

Still,  all was well, until a bright spark pointed out that the rather vague and all- encompassing thing that psychoactive substances do to the mind, emotions and central nervous system was the very thing that poppers don’t do. Poppers do lots of things – it is quite eye-brow raising, in fact,  to learn about all the things that they can actually do, ( which does not, incidentally, necessarily include scenting your room), but, it turns out, they can achieve all of these wonders without once troubling the parts of the body that the PSA has been chosen to focus on.  I suppose the Psychoactive Substances and Peripheral Vasodilatory Products Act 2016 would be too much to cope with, (and, indeed, even saying it might produce a psychoactive effect on the emotions, which would be ironic and unfortunate). It would be easier to refer to the “Substances That Do Things To You Act”, but I think we can all agree that my forte does not lie in legislative draftsmanship.

So, for the time being, it appears most likely that poppers will not be outlawed. This has caused a flurry of unwarranted excitement amongst those who have fallen foul of their friendly neighbourhood responsible authorities by selling them.  It has to be said that the responsible authorities have largely put themselves in an emotional and nervous state in wrestling with what to do with people who are selling things which are legal but potentially subjectively undesirable. This has been the issue with Marmite for decades;  (nothing else remotely like it is available). The mental gymnastics required have been connived in and encouraged by the Secretary of State’s s182 and other Home Office Guidance which, whilst creating paroxysms of drama and nail-biting about legal highs, fail to give virtually any practical and effective steps to deal with them other than to wait patiently for the bespoke piece of legislation that will clearly outlaw them.  Impatiently, the responsible authorities have brought reviews to protect society from the things that will shortly be illegal ( or will they?) but aren’t yet, and have tied themselves in linguistic knots trying to explain why said products are already illegal really, if you just stand back and squint a bit.  This has had some curious results, not least the recent Sub-Committee decision which decided to hedge all bets and confirm, categorically, for the avoidance of all doubt, that it recognised that the poppers being sold by the hapless licensee were indeed legal, and were most aptly described as “legal highs”, but that the Sub-Committee was, nevertheless, going to take the most severe licensing action as a result because, if the poppers had not been legal highs, and if they had, instead, contained illegal drugs, then they would, beyond any shadow of a doubt, have been illegal.  Which is an incontrovertible truth, but, as a colleague wryly remarked, one could make the same true pronouncement about a packet of peanuts or a Wagon Wheel. Other nuts and chocolate flavoured covered biscuit products are available, and are also illegal if they are found to contain classified drugs.

Sarah Clover

2016

By | 2017-04-03T10:40:23+00:00 April 3rd, 2017|Blogs|Comments Off on Legally Illegal