Christopher Snowdon

The new ban on ‘legal highs’ is unworkable. The government doesn’t even know what it’s banning

The new ban on 'legal highs' is unworkable. The government doesn't even know what it's banning
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The man in the pub’s solution to the ongoing panic about legal highs is to ban them. 'Ban ‘em all! S’obvious, innit? I can’t believe politicians haven’t thought of it already. Yeah, go on, I’ll have another...'

Here’s the thing. It is obvious and politicians have thought of it already. The reason that it never went from the idea stage to the planning stage is that it isn’t as simple as that. Previous home secretaries such as David Blunkett and Charles Clarke didn’t baulk at the idea because they were lily-livered pussy cats with libertarian tendencies. They rejected it because it’s a bad idea, not just illiberal but also unworkable.

The current government thinks it knows better. It intends to automatically ban legal highs before they can hit the market. This is exactly what the US government tried to do with the Federal Analogue Act of 1986, which was rushed through after similar panics about ‘designer drugs’ in the yuppie era.

That law criminalised any substance that was ‘substantially similar’ to a controlled drug if it was designed for human consumption. Such substances are automatically banned if they have an effect that is ‘similar to or greater than’ a drug that has already been made illegal. That might be a satisfactory definition for the man in the pub, but a lawyer could drive a coach and horses through it. What does ‘substantially similar’ mean? How can you say that one drug’s effect is ‘greater than’ another drug’s effect, particularly if you’ve never taken it? Who is to say that a product is designed for human consumption when its packaging specifically says it is not?

It is little wonder that the Federal Analogue Act has rarely been invoked and the US government continues to ban drugs the old-fashioned way, by identifying them and listing their chemical structure. The devil is in the detail and you need a lot of detail unless you want to ban everything or nothing. Our own government has already admitted that it will have to specifically exempt tobacco, alcohol, coffee and any number of other everyday products from the ban. We are moving ever further from common law towards the tyranny of Roman law in which everything is banned unless it is specifically permitted. This is deeply troubling from a liberal perspective, but even with regards to the specific problem this law is designed to tackle it has the makings of terrible legislation.

It is often said that ignorance of the law is no excuse, but that can only reasonably apply when the law is written in such a way as to leave no doubt as to what is permitted and what is forbidden. A law which can put you in prison for seven years for not memorising all the exemptions to a piece of legislation that amounts to an all-out war on chemistry is capricious. You’ll get no argument from me if you say that most of people who get prosecuted under this law will be lying when they claim that they ‘didn’t know it was illegal’ but for a non-trivial minority it will be the truth.

The whole thing brings to mind another piece of hastily scribbled legislation designed to appease the tabloids – the Dangerous Dogs Act of 1991. For all its faults, the Dangerous Dogs Act did at least bother to name which dogs the government believed to be dangerous. That is very least we should expect from our lawmakers. If something is to be criminalised, we should be told why it’s being criminalised and – above all – what it is.