The minister in charge of the legal highs bill doesn’t understand his own legislation

Even by the Mickey Mouse standards of the psychoactive substances bill, yesterday’s Commons debate was remarkable. It is a sign of how meaningless and irrational this legislation is that the minister in charge of it seems to have no idea what he is making illegal or who would be vulnerable to prosecution.

Mike Penning’s performance was the most incompetent in recent Commons memory, perhaps even trumping the moment last year when Chris Grayling seemed to misunderstand the function of his own judicial review reforms and talked himself into watering it down in front of the entire chamber. Last night, the policing minister seemed to contradict a fundamental promise of the bill: that it would only criminalise the import, production and sale of legal highs, but not the possession of them.

“My understanding was that those who would be criminalised by the bill were those who were supplying, marketing, producing and selling,” SNP MP Anne McLaughlin observed, “but twice now the minister has made a comment that suggests that those who purchase these products might also be criminalised.”

Penning’s reply to the Scottish MP was astonishing, because it contradicted everything which had been said about the bill up until yesterday’s debate.

“We do not want to criminalise individuals for possession, but we are going to criminalise the sale and purchase of these substances. That is in the bill and in the spirit of the bill, and is in line with the work that we have done.”

Penning’s comment wasn’t just remarkable for how radically it went against Home Office promises not to criminalise users, but also because it flew against decades of drug laws. Typically, we criminalise possession, because criminalising purchase would mean that anyone who gets the drug for free – for instance by a friend giving it them – was not committing an offence. It’s basic stuff, but Penning does not seem to understand it.

Labour’s Lyn Brown tried to help him out. One of Penning’s major problems, aside from having invented a new criminal offence on the floor of the House and overturning decades of narcotic offence consensus, was that he still had no working definition of a psychoactive substance which did not require extensive expert analysis. Given that the average member of the public would not have a pharmacological expert on hand when buying glue or nutmeg or whatever, he was effectively proposing criminalising everyone. No-one would ever be able to tell when they were breaking the law. This is one definition of a totalitarian state.

“I am a little confused by the diversion from where I thought we were going,” Brown said. “Would not a purchaser need to know that the substance was illegal when purchasing it? If so, we will need a definition of what psychoactive means. Is that not right?”

Penning replied: “That is exactly the situation, and that is exactly what the bill says. I do not understand the diversion either.”

Fellow Conservative MP Stephen Phillips tried to save him by explaining his own bill to him. “I confess to the minister—I am trying to help—that I am a little confused as well. I do not think that the bill creates an offence of purchasing so-called legal highs. Importing is a different matter, and is dealt with in clause eight, which he will no doubt confirm. If he can do so the debate about people buying so-called legal highs and being criminalised will go away.”

At that point Penning suddenly appeared to understand how badly he was misrepresenting the legislation.

“I apologise: I kind of misled the House unintentionally on individual possession. I was talking about intent to supply, not intent to use. Making a purchase from a foreign website would be caught, but the purchase on its own from a website or foreign website would not, and I apologise if I misled the House on that point.”

Even here he doesn’t seem to understand what he is talking about, but it is likely that he means that a purchase for use from a foreign website would in fact be criminalised under the rules against imports. As Lib Dem Norman Lamb pointed out, this is morally absurd.

“The bill manages to criminalise the purchase of a substance imported from overseas, but does not criminalise the purchase of exactly the same product domestically. Is not that just ridiculous? Can anyone in the Chamber possibly justify that distinction?”

The irrationality, lack of interest in evidence, muddled thinking and sheer irresponsibility of the Penning slip-up was typical of the debate. Could there be any area of legislation, outside of drugs, where MPs would sit for hours debating a ban on something they cannot define? The Advisory Council on the Misuse of Drugs (ACMD), which was frozen out the process because it kept raising logical objections, warned that the government’s wording is effectively meaningless and that proxy measures of psychoactivity, such as in-vitro neurochemical tests, may not stand up in court. This is why Ireland has found it almost impossible to prosecute people after it passed a similar law.

Brown observed, rather understatedly:

“The definition of psychoactivity should be at the core of the bill, so I am rather surprised that the government felt able to move the bill’s second reading without that point being resolved.”

Lamb made the same point, somewhat less understatedly:

“Is it not extraordinary that at this point of our consideration of a bill there is such concern about the possible implications of a definition? The view of many is that it is impossible to provide a scientifically or legally meaningful definition of a psychoactive substance. At least in principle, it could cover thousands of plants, spices, herbal remedies and over-the-counter medicines. The degree of psychoactivity necessary to establish a criminal offence is also completely unclear, as it is unspoken in the bill.”

The weakness of the definition means the government is unable to differentiate legal highs from items like nutmeg, incense or flowers, all of which are substances with a psychoactive effect. Ministers wrote back to church leaders to alleviate their concern about incense recently, but their statement had nothing to do with the law. They said incense did not involve the “direct inhalation of fumes”, which is not a distinction which features in the bill, and that it was not “consumed for its psychoactive effect”, which is not strictly true, given the religious context in which it takes place. Although if there is a single good argument for the psychoactive substances bill it is that we could see a court case where it was decided whether incense was being used for its psychoactive effects in church.

“By having a blanket ban, there are real concerns that we will be banning things that we all enjoy,” Penning admitted. “I am talking about caffeine…” Then his Tory colleague Stephen Phillips usefully shouted: “Nutmeg!”

Penning pressed on. “Yes, nutmeg and the scent of a flower. That would be complete and utter tosh. We will ensure that we insert what we want to insert, just as the government did in the Republic of Ireland, while at the same time having a blanket ban.”

Putting aside for a moment the fact that Penning describes as “tosh” that which he seconds earlier accepts is true, his list of exemptions will be as long as War and Peace. It will be longer even than the endless list of additions pegged on to the Misuse of Drugs Act.

Penning spent much of the debate saying what a success the legal highs bill had been in Ireland, but the few MPs who had bothered to research what had happened in Ireland did their best to correct him.

Within minutes of the debate starting Green MP Caroline Lucas pointed out:

“Similar bans in Ireland led to an increase in the use of these kinds of drugs. Given that that is the case, will he be properly reviewing the implementation of this bill?”

Penning’s answer includes a very revealing logical twist. He disagrees with Lucas not by citing contrary evidence, but insisting that he has not seen it with his own eyes.

“I did not expect to be in confrontation with the hon. lady so early on, but I think, yet again, that she is wrong. I have been to the Republic of Ireland, as well as to Northern Ireland, and not only seen the damage that these psychoactive substances have done, but met ministers and their chemists.”

This is an increasingly common refrain from politicians. They do not pretend to have evidence to the contrary, they simply ignore it because it does not correspond to their personal experience. In truth, the evidence from Ireland is damning. Yes, it shut down the head shops, which is what MPs really want, but the trade instantly spread onto the black market – both the street corners and the dark web.

“If the Irish ban has been so successful, why has the lifetime prevalence of the use of novel psychoactive substances among young people there increased from 16% to 22% in the past three years?” Lucas asked, citing evidence from the European Monitoring Centre for Drugs and Drug Addiction. “Would it not have been sensible to have done an impact assessment of the situation in Ireland before pressing ahead with the bill?”

Penning replied: “The answer is no, because I do not want any more deaths, which will happen if we hold back now and wait for more studies, for more this and for more that.”

The debate was a circus of assertions, a tent flapping in the wind. This law began with the government freezing out its own experts because the evidence kept on throwing up the wrong answers. It is now being carried through without a working definition of what it is it’s banning. And it is being led through the Commons by a minister who does not understand who it is criminalising. The psychoactive substances bill is the moment drugs policy finally became completely untethered from reality.