The government just banned everything

Even by the standards of modern legislation, the psychoactive substances bill is startlingly inane. It seems to ban any substance which can cause a mental or emotional reaction. As must be obvious, that's almost everything in the world. Did this taste remind you of your mother's cooking? It's a psychoactive substance. Did it bring you a moment of happiness? It's a psychoactive substance. The government is about to ban almost everything.

This is not, to be fair, the legislation. This is just the advert. But the description of the bill in the Queen's Speech is troubling enough.

"The Bill would make it an offence to produce, supply, offer to supply, possess with intent to supply, import or export psychoactive substances; that is, any substance intended for human consumption that is capable of producing a psychoactive effect. The maximum sentence would be seven years’ imprisonment."

Note the line "any substance intended for human consumption that is capable of producing a psychoactive effect".

That therefore includes all substances, given that at the point someone was caught by police it would only be pertinent if they intended to give it to other people.

The World Health Organisation defines psychoactive as:

"Psychoactive substances are substances that, when taken in or administered into one's system, affect mental processes, e.g. cognition or affect."

So at this stage everything is included.

There are, of course, rather substantial caveats. The next section says:

"Substances, such as alcohol, tobacco, caffeine, food and medical products, would be excluded from the scope of the offence, as would controlled drugs, which would continue to be regulated by the Misuse of Drugs Act 1971."

So existing illegal drugs are exempt. So are existing mind-altering drugs which are legal, such as alcohol. Food is exempt, which gets rid of our 'mum's food' example above. And so is caffeine, although it seems that whoever wrote it did not know that theobromine has a stimulant effect on the brain and is found in tea and chocolate. Chocolate will be OK because of the exemption on food, but hot chocolate won't. So that might need fixing before they end up criminalising half the country.

You'll notice as well that solvents aren't mentioned. The food exemption also raises the question of what you do about people who cook legal-high versions of cannabis into cakes or biscuits. Professor David Nutt's plans for a safer version of alcohol, which could save millions of lives, would be illegal right off the bat. In fact, it's worth considering for a moment how far-reaching these plans are. The world is now illegal until proven otherwise.

That seems to stretch what might be considered the valid powers of the state into the world of fiction. 

How has it happened that such a nonsensical idea could find its way into a Queen's Speech? The story starts in New Zealand. When they experimented with a different approach, world governments realised that being sensible about legal highs meant bringing the war on drugs to its knees.

This is their problem: Once a new legal high is blacklisted, those clever chemists alter its composition just enough that a new one does not fall under the remit of the law and can be freely sold. Chemists – especially those with the appropriate financial incentive – typically work faster than legislators.

New Zealand had a particular problem with this. It's out in the middle of nowhere and there aren't many people living there. Drug smugglers weren't really keen on finding routes into the country. But demand still existed, because Kiwis are humans and if you give humans the opportunity they will take drugs.

So legal highs were very popular in New Zealand. The government came to a sensible solution. It would offer drug designers the chance to get approval for their products if they could convince a Psychoactive Substances Regulatory Authority they were safe. It was a great idea and passed with just one vote against. And then it all went wrong.

Because the world is sillier than any of us are really prepared to admit, it went wrong not because of a backlash by drug prohibitionists, but because of animal rights activists. The interim licensing sections were repealed and a section added banning the advisory committee from authorising a product where the trial for its use involved the use of an animal.

Putting aside the eccentricities of Kiwi politics for a moment, the reasonable original proposal was profoundly dangerous for supporters of the war on drugs. It threatened the idea that drugs must be banned, regardless of harm, out of some quasi-religious anti-intoxification agenda. It introduced the notion that drug regulation should take place on the basis of evidence of harm, rather than some sort of historic crusade. Basically, it was sensible. And because it was sensible, it was a threat to the global system of drug regulation.

So if you can't do that - for fear of undermining half a century of madness - you have to go the other way and ban everything until its proved it won't do anything in your head. That is the oh-so-sober suggestion of the drug warriors: they want to ban things which make the brain do things. It's basically a war on subjectivity. A child would know it was madness. Only a civil servant could think it was sound policy.

It's easy to laugh, but what has happened here is a dark legal turning point in British history. Previously, everything was legal unless the government passed legislation outlawing it. That is the benefit of not having a constitution – your freedoms are not granted, they are only ever taken. It makes legislation a sober undertaking which demands responsibility and sincerity from those who write and vote on it. It is the great achievement of British society: the idea that the people are free and the government must justify its intrusions, not the other way round.

This is the opposite. It is the spilling of the legislative ink, so that it covers everything. It is the rank opportunism of the state at its worst. And it is contrary to the legal basis upon which this country has operated for hundreds of years.

Cameron surrenders on human rights

David Cameron appears to have backed down in his attempt to scrap the Human Rights Act in 100 days. No legislation setting forth plans to do so will appear in today's Queen's Speech.

It's the latest retreat by the prime minister in a long string of attempts to change the Act. A briefing to the Times saw a government figure say they wanted to do the replacement of the Act "right, rather than quickly". So they'll consult with plans to come back next year and try again. Although a week ago they were saying it would be done in 100 days, so take that with as many lorries of salt as you desire.

During the consultation, lawyers will tell them what they have already been told: that the UK supreme court is already supreme, that we only have to 'take account' of Strasbourg rulings, that the Council of Europe will never tolerate an 'advisory' status, that the devolved assemblies will have to have a say on any changes, that the House of Lords will be within its rights to vote it down, that the Commons will probably defeat it and that even if it somehow got it through all those hurdles there's a stream of legal recognition from Europe which could inject the European Convention of Human Rights into UK law anyway.

As shadow justice secretary Lord Falconer told the Today programme:

"As far as I can see they've retreated on what they've said. They made these proposals in 2011. The need for a consultation five years later suggests they're aware it can't be done."

Indeed, if it doesn't happen now, human rights defenders can content themselves with the fact that it probably never will. As Falconer says, they've been banging on about it for some years. It recently looked like this really was the showdown we'd been dreading.

Last October, they published a very aggressive policy statement which envisaged leaving the European convention altogether. Then they were returned to power with a Tory majority for the first time in 20 years. Michael Gove was made justice secretary and Dominic Raab justice minister. Given they were two of the biggest brains available to Cameron, it suggested the Tories had a plan and were serious about it.

And yet it still fell apart. This was partly because of the Commons. That 12-seat majority looks very flimsy when you start considering the Runnymede Tories. Off the top of our heads we know Dominic Grieve, Ken Clarke, David Davies, Andrew Mitchell, Damian Green and one anonymous government figure are among their number. That's half way to a defeat already. The SNP and other human rights campaigners said they were confident there'd be sufficient critical Tories behind the scenes to stop it.

So in the words of Menzies Campbell: welcome to test match cricket. Cameron may have a majority, but it is so small he is hostage to his own party – both its liberal flank and its right.

As Alex Salmond said this morning:

"The early signs are it hasn't taken long for this government to be blown off course."

The Lords argument was won. Anyone suggesting they couldn’t vote down the measure because it was in the manifesto hadn't read the manifesto. That commitment was weak whereas Tory promises were strong. The Lords would have been able to say that any radical plans went over and above the limitations imposed on it by the Salisbury convention. And the matter was of such constitutional import that they would have been able to vote against it anyway.

And then you come onto the devolved assemblies, which was a knot one could not untangle without splitting up the UK's human rights laws and furthering the cause of separatists everywhere.

It will now go away for a while, then perhaps come back next year - but it seems fairly clear now that the Tories aren't prepared to countenance the nuclear option of pulling out the European convention. So in all liklihood, the worst-case scenario we're looking at is reformulation of the Human Rights Act into a British bill of rights with the convention intact. Is it wise? No? Is it a total waste of time? Absolutely. But it is not a major threat to the human rights framework of the post-war world. So that's a plus.

We have to ask ourselves, is Cameron cynical or dim? Does he just not get it into his head that these obstacles are nigh-on insurmountable and therefore keep promising human rights reform without any recognition of his inevitable failure? Or does he enjoy poking the wasps' nest on a matter which is of sufficient legal complexity he knows most people will never take the time to understand it?

It must be the latter, but even this is not a clever strategy. Doing it during election time on the assumption you can blame the Lib Dems when you have to eventually back down? Fine. It's not honourable but it's understandable. But his decision to use his moment in the sun after the election to make promises he knew he'd struggle to keep? That's just a waste of valuable political capital.

He does this quite often. Even after the failure of his first promise to get immigration down to the tens of thousands, and in the full knowledge that net migration is something he simply can't control, Cameron recently made the promise all over again. And now he does the same thing on human rights. The prime minister is, as ever, a short-termist. He does not think far ahead.

But in this case, it was a choice between his own inadequacy and the proper functioning of one of the greatest civilising missions in human history. So we should be grateful that, for now at least, his inadequacy won.

How Britain killed Rubel Ahmed

In the days after Rubel Ahmed died, there were two competing stories about what happened.

Authorities at Morton Hall immigration detention centre, where the 26-year-old was held, said he had committed suicide. There had been no cries for help. He had sat alone in his cell and killed himself. Fellow detainees at the centre said he had been banging on the walls and complaining about pains in his chest, but that no-one came.

I wrote at the time that whichever story was true, he was killed by Morton Hall. But that's not quite right. It wasn't just Morton Hall. It was the system of detention, of stuffing ordinary people into prison buildings, often among foreign criminals, with no sense of how long they'll be there and no sense that anyone is really listening to them. It was the Home Office, which presides over this system and refuses to even allow a maximum time limit on detention. And because of our continued tolerance of this state of affairs, it was Britain which killed him too. In so far as we allow this situation to continue, we are responsible.

Now that the coroners' court has delivered its verdict, we know which of the stories was strictly true. Ahmed committed suicide. But we also know that Morton Hall did indeed kill him. The open verdict delivered by the jury highlights a systematic failure to look after detainees.

I'm told management are shocked by the outcome, as are staff. They're hoping management cops the flack for what happened, although that seems unlikely, given the centre's track record.

Ahmed had been told he was about to be deported to Bangladesh just a few days before he hung himself.

He'd been locked in the room for hours when he did it. In court, the detention centre manager admitted that locking up detainees in their rooms was a risk factor. But an inspectorate report calling on Morton Hall to stop locking detainees up in the evening and overnight from two years ago has still not been implemented.

As Ajmal Ali, Ahmed's cousin, said after the verdict:

"Locking Rubel up in his room early in the evening prevented him from being able to talk to his fellow detainees in the hours before his death, leaving him alone with his own thoughts and worries.  We believe that being unlocked would have made a difference to him that night."

The evening lock-up is typical of Morton Hall. It's a former category B prison, with many of the features of its previous function intact. It holds a disproportionate number of foreign criminals.

As a guard, who wished to remain anonymous, told me at the time:

"It's very tribal. The Vietnamese hang together, the Afghans, the Nigerians. If one Nigerian has a problem with an Afghan, then it's the Nigerians versus the Afghans. We don't get a lot of trouble, but when we do, we get carnage. The incidents have gone up since the Home Office decided to send us former foreign national prisoners. We're getting far too many."

An all-party parliamentary inquiry panel and HM Inspectorate of Prisons have raised concerns about detainees being held in prison-like conditions. Nothing has been done.

Ahmed got lost in the system. As another cousin said, he was considered "irrelevant" by those detaining him. The jury found "inadequate" communication between the teams meant to be overseeing him. There was no system in place for checking on how he was once he learned he was going to be removed. Staff were supposed to check on changes in behaviour, but they didn't even know who he was. An off-duty member of staff had to be called to identify him.

As the guard said:

"No-one knows who he was. He'd never come to our attention for any reason. He wasn't being watched closely because he wasn't a suicide risk."

Once he was found, experienced staff had not been trained in resuscitation techniques for years and couldn't remember what to do in the case of hanging.
Clare Richardson, the family’s solicitor, said:

"The jury heard that two of those responsible for Rubel’s welfare had not received training in resuscitation techniques for over ten years, and none of them could remember much of what they had been taught about working with immigration detainees. This reflected a wider malaise in the training regime at Morton Hall which needs to be addressed urgently by the Ministry of Justice."

Even news of his death got lost in the system. The coroner said there had been a "very significant" delay in confirming the death to the family.

As I wrote at the time about the centre's response to the death:

"Not only did they not announce it, but they failed to even get in contact with journalists until hours after the story had broken. Morton Hall directed calls to the Ministry of Justice, who answered an hour later and passed the call on to the Home Office, who did not answer until several hours later."

This was how the British state acted when confirming reports of a death under its care.

Even the facts we now have at our fingers are not completely reliable. As the guard said of the management:

"They are fucking liars. They don't tell the truth, not by a long way. I've been in this job a long time and I know it's a load of bollocks. We're being told no-one is in the frame for this. Whatever the truth is, it's never going to come out."


But even with the details we have, the ultimate truth is clear: Ahmed's death is the responsibility of this country, where we lock people up indefinitely among hardened criminals, without trial or information about when they will be released. Where we care so little for the people in our care that we don't bother checking on them when we know they are going through a traumatic experience. Where we leave it to detainees to secretly tell journalists about the death and solicitors to tell the person's family.

It's not the guards' fault. It's management's fault. But the blame for their indifference must ultimately be laid at the door of the Home Office. And the Home Office only gets away with it because we don't cause a fuss.

Britain killed Rubel Ahmed.

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