This week saw Home Secretary Priti Patel rip off the manky sticking plaster that was – since 2016 – dealing with the ban on poppers in England and Wales, Scotland and Northern Ireland. This was a ban that then turned out not to be a ban, but might actually be a ban after all. She’s not sure. Which is reassuring coming from the Home Secretary. Patel was right that in stating that the law is ‘uncertain’, and it has been since a 2018 Court of Appeal judgment, but everyone was seemingly rather pretending it didn’t happen and therefore didn’t change anything. Let’s leave that dodgy sticking plaster where it is.
Enter Nurse Patel. In writing to the Advisory Council on the Misuse of Drugs (ACMD), she set out their priorities through to 2023 and indicated three areas in order of priority. The third of these related to the poppers ban.
The passing of the Psychoactive Substances Act 2016 was – amidst a competitive field – not one of David Cameron’s finest moments. It doesn’t even get a mention in his 2019 memoir chronicling his time in power. The Home Secretary at the time was Theresa May, who would find the experience of an accidental screw up that would subsequently turn out to be claimed as deliberate before then being regarded once more as an accident would provide a template for her brief but vivid premiership.
The 2016 legislation was intended to address the phenomenon of ‘legal highs’ but the drafting of the legislation seemed to also include poppers, prompting the Conservative MP Crispin Blunt to talk to Parliament of his poppers use, and defending the drug and its practical importance as an anal sphincter relaxant. The Government refused to add poppers to the list of exemptions. The legislation passed with then Home Office Minister Karen Bradley promising a review (highlighting that it seemed the legislation did ban poppers). The ACMD would subsequently write to the Home Secretary with their view that poppers didn’t have the effects that met the definition of ‘psychoactive substance’ within the legislation. The Government accepted this and thus, the maybe ban was now clearly not a ban after all. With perhaps a sigh of relief, the Government firmly stuck a plaster over the issue. The initial Police raids on premises selling poppers stopped, and sphincters relaxed once more.
The 2018 Court of Appeal case concerned Kirk Rochester who was convicted for the possession with intent to supply of a psychoactive substance – nitrous oxide – more commonly known as ‘laughing gas’ at the Love Box Festival. The question became whether nitrous oxide actually fell within the meaning of ‘psychoactive substance’ and the Court of Appeal ultimately agreed with the trial judge that a distinction between direct and indirect effect was not necessary as the legislation did not make such a distinction and thus an indirect effect is sufficient. They also noted the ACMD review – by Ministerial direction – that they did in 2016 within a month of the legislation passing, in which they noted ‘peripheral effects’ rather than ‘direct action’ in the use of poppers, and as it doesn’t have a direct effect, it didn’t fall within the legislation. That was a science judgment. The law judgment is now clear that such a distinction between direct and indirect does not matter.
Patel’s intervention is to ask the ACMD to look at this legal question, but whatever their considerable scientific expertise, this is beyond it. They can perhaps clarify their previous advice about indirect effect but if they indicate there is an indirect effect then poppers will be deemed to have been criminalised all along. If they say there is no indirect effect, it raises questions about other substances. It’s a mess.
If the Home Secretary believes there is uncertainty in the law, it should be addressed as a priority. This is a legal question rather than a scientific one. The Kirk Rochester case also clarified that the ACMD clarification on poppers and subsequent Government acceptance back in 2016 was after Parliament passed the legislation. It is therefore irrelevant in terms of understanding the intention of Parliament for legal purposes. The intention of Parliament on poppers was that poppers were banned but they knew the Government was going to review this with the ACMD. They did not know what the outcome of that review would be. The utter inadequacy of this sticking plaster is now apparent. The solution can only come through an unambiguous statement that the Government and Parliament do not intend for poppers to be banned and legislative brought forward to clarify this. Any delay is an alarming abandonment of the basics of the Rule of Law and a particularly troubling development for the LGBTQ Community who will find their behaviour is criminalised.
Law and Sexuality 