The deafening chorus of criticism over the psychoactive substances bill grew even louder today when the home secretary's own drug advisers launched a blistering attack on it.
It's damning stuff. They found that what the legislation intends to do is "impossible" and that "psychoactivity", the very effect the bill is trying to outlaw, "cannot be unequivocally proven". They are singing from the same hymn sheet as all the chemists, legal experts and sensible commentators who have looked at it. This is a Micky Mouse bill, dealing with a cartoonish reality which bears no connection to the way substances interact with the human body in the real world.
Will it make a difference? Undoubtably not. One of the primary functions of the psychoactive substances bill is to sideline the council, mostly because it keeps on doing things like this. The council works on the basis of evidence gathering and assessment of harm, both concepts which the bill turns its back on. But it is still worth looking at the council's eight objections, which offer a concise account of some, but by no means all, of the problems in the bill.
1) The omission of the word 'novel' has widened the scope of the bill beyond that originally intended.
The council is no libertarian think tank. It actually supports a blanket ban on new psychoactive substances. But even from this very conservative perspective, the government's position still looks barmy. As the council says:
"It is almost impossible to list all possible desirable exemptions under the bill. As drafted, the bill may now include substances that are benign or even helpful to people, including evidence-based herbal remedies that are not included on the current exemption list."
Proving specfied psychoactive causation will be almost impossible in court, experts believe
2) The psychoactivity of a substance cannot be unequivocally proven
Here's the point made endlessly by scientists or anyone with even a passing understanding of pharmacology: you cannot test the causal mechanism for psychoactive effect in court. The government wants a mechanistic way of describing how something hits the central nervous system and then affects mood and thought, but there's no way of documenting that without resorting to talk of 'brain' and 'mind', and even if there was, plenty of substances we don't want to target - like taurine, nutmeg or incense - would be covered by it too. As the council says, rather dryly:
"The only definitive way of determining psychoactivity is via human experience, which is usually not documented."
3) The bill uncouples the concept of harm from control of supply, importation and production
This seems simple. Why doesn't the government insert the word 'harmful' into its definition of psychoactive substance, thereby getting rid of nonsense examples like nutmeg above? Because to do so brings back evidence and testing to a law which is intended to eradicate them from drug policy.
The Home Office realises the danger of reason in an unreasonable pursuit. 'Harm' tests act as a thin end of the wedge for a liberal drug policy, because once you show that a drug is essentially harmless, as laughing gas is, you have to accept its legitimate use. This strain of thought has long been present in the Home Office. After all, the council's former chairman, David Nutt, was sacked for, among other things, outlining the statistical similarity between the dangers of horse-riding and ecstasy. For drug prohibition to continue it is essential that the reality of harm is not documented or taken into consideration. As the council says:
"Without the inclusion of the words 'harmful' or 'potentially harmful', the ACMD can envisage situations whereby the supplier of benign or beneficial substances could be prosecuted under the bill."
The Home Office doesn't care.
Scientific bodies have warned the bill could severely limit research into new medical drugs
4) The bill could seriously inhibit medical and scientific research on psychoactive substances.
The council concedes that there's an exemption for psychoactive substances in clinical trials, but points out there's no exemption for laboratory research in academia or industry. Many scientists, particularly in universities, are extremely worried about this. As prominent scientists wrote to the home secretary last week, a researcher who develops a new substance which could help combat depression will currently be in contravention of the law if they do volunteer trials.
5) The bill has the potential to both criminalise and apply disproportionate penalties to many otherwise law abiding young people and adults.
One of the few things thing the bill did right was not criminalise possession – just production and supply. But the legal definition of supply stretches much further than people think it does. If one guy goes online to buy this stuff and then shares it with his mates, that's supply. As the council says:
"The ACMD believes that criminal justice sanctions would be disproportionate to the harm caused by such acts. The inclusion of social supply in the bill also has the potential to result in discriminatory impact on members of black and minority ethnic groups, given what is known about the over-representation of members of these groups at each stage of the criminal justice response to drug offences."
6) The bill is likely to lead to the closure of many 'headshops', the reduction of the direct sale of novel psychoactive substances to children, and the 'normalisation' of sale of these substances in shops. However, the evidence-base for individual supply reduction interventions on a market is poor and the evidence that there is indicates that disrupting a supply market often leads to displacement of that market.
As has been well documented, the war on drugs is like a balloon full of air. Squeeze one bit and it expands elsewhere. That's true for trade routes and it's true for drug provision too. The bill will kill headshops – the council is right about that – but that trade will not disappear. As with other drugs, it will go to the dealers and, increasingly, the online marketplaces. Once the trade goes underground it is even harder to communicate with those who need safety information about the substances they are consuming.
Owners of bars could be liable to prosecution for allowing in legal highs
7) 'Directors' of many premises and venues may be liable to prosecution for 'supplying and/or importing' novel psychoactive substances
The law of unintended consequences. The bill makes 'directors' of premises where the drugs are taken or supplied liable to prosecution. But most of these legal highs don't show up on drug tests (which, incidentally, is why their use in prison has soared) and they're not recognised by drug dogs. So if the law is properly enforced we can expect to see a tidal wave of prosecutions against bars, pubs, nightclubs, hostels, prisons and festivals. And that's not even to mention residential property.
8) The bill would have a substantial impact on the sale of many herbal medicines.
Plenty of herbal medicines are useless and function as an informal tax on gullibility. Some have evidence of being beneficial. Most are not registered, which would grant them an exemption. So regardless of whether they are slightly useful or not, they are about to be needlessly wiped out by a law which was never intended to have anything to do with them.
Almost every expert who casts their eye over this bill comes away startled by its stupidity and certain that it will not work. It would either involve arresting everyone - all prison governors, all bar owners, everyone who sells incense, the list goes on - or, more likely, as in Ireland it will involve arresting no-one.
The chorus of criticism is deafening. The only place where the bill has not faced any substantial criticism at all is in the Commons chamber. And it will likely stay that way until it is passed. MPs have no interest in evidence. And that partly explains how this bill could be allowed to exist in the first place.
David Cameron does a sort of meta-commentary whenever he's on the BBC. If he's interviewed by Andrew Marr, he spends most of his time complaining that he is not allowed to speak - seemingly unaware of the fact he needs to speak in order to express it. When he was on Radio 4 earlier this week, he told off the corporation for using an inappropriate word for Islamic State, or Isis, or Isil, or Daesh – whatever you want to call it. One hundred and twenty MPs backed him in a letter to the BBC.
It looks like the BBC is standing its ground. A response from Lord Hall says:
"The BBC takes a common sense view when deciding how to describe organisations, we take our cue from the organisation's description of itself. We have recognised that used on its own the name Islamic State could suggest that such a state exists and such an interpretation is misleading. So we have caveated the name 'Islamic State' with words which qualify it eg 'so called Islamic State'."
In fact Lord Hall is overly generous. Islamic State, which this website refers to as Isis, actually is starting to mint gold and silver coins for use in its "caliphate". It is implementing a system of law – one based on medievalist barbarity, but a system of law nonetheless. It is more than a political movement now. Should it be recognised by the UN? Of course not. It should be destroyed by almost any means necessary. But whether we like it or not, it is more than just a political organisation with a militia wing.
And whether one likes things or not is at the heart of this question, because we cannot fight the things we dislike unless we accept that they exist in the form in which they exist. You wouldn't attack a building without schematics. You can't defeat something unless you know it as it really is.
The prime minister is – unusually – adopting a favoured tactic of the radical left here. He only ever adopts the left's really bad ideas. This time it's that you can change the world merely by changing the language with which people discuss it. That's why 'racism' has been changed to mean 'structural racism', it’s why the word 'progressive' was claimed for use exclusively by the left, and why identity politics has spent the last twenty years in a baffling linguistic ghetto of policed terms rather than addressing genuine injustice.
Now, the Tory party appears keen to go the same way and is applying considerable political weight to forcing the BBC to change its style guide. As I write this, Chris Grayling has been having a go at them in the Commons. This is no small matter. The Times, Daily Mail and Telegraph are all running very damaging stories today, saying the Beeb is worried about "being unfair" to Isis. Their crusade against the public broadcaster has no basic standard of decency, and using its attempt at intellectual consistency as a way of painting it as a weak-willed terrorist sympathiser is apparently well within the rules of the game.
Actually, Lord Hall is entirely correct: The BBC's system is to use the name a group gives itself. Daesh, the prime minister's preferred term, is not an acronym of the group's full Arabic name, ad-Dawlah al-Islamiyah fi 'l-'Iraq wa-sh-Sham, but a pejorative name given to it by its enemies. He has to stick to this system, anything else leads us to a place where the BBC can no longer claim impartiality.
None of us like Isis. But to start suggesting the national broadcaster uses value-laden terms based on petitions of MPs is a path to ruin. The reason the BBC has such trust – at home but more importantly abroad – is because it is seen as independent of government. Taking on its petitions for word usage would be a disaster. But so would imbuing the terminology it uses with the expected popular reaction to the people and groups it reports on. It is not meant to curate public opinion. It is meant to give us the facts so we can form our own view. This regularly proves frustrating for politicans and the extent to which it does so is a good indicator of the BBC's success.
To condemn Isis one need merely document what it does. It is not necessary to jump onto specially-constructed terms. To his credit, Cameron is concerned with not giving the impression they represent Islam – either to Muslims or non-Muslims. But that is a matter for argument, not tinkering with terminology. It is a very easy argument to win and we do not need a petition on semantics from MPs to do so.
Today is the first day of a wildcat legal strike across the country. Those who find themselves arrested will struggle to get legal aid representation. Within days, the courts system could grind to a halt.
It is happening across England and Wales. The strike will be followed in Merseyside, Greater Manchester, London, Devon, Leeds, Cardiff, Halifax, Derby, Birmingham, Sunderland, north and south Tyneside, Newcastle, Huddersfield, Dewsbury, Bradford, Hull, Kent and Reading. It's impact will be felt everywhere.
It is not technically a strike. Lawyers can't strike. Instead, meetings across the country saw solicitors and barristers gather together and come to individual decisions about whether they would back the action. It is a convoluted process with a complex way of refusing labour.
Anyone arrested today and taken to a police station will be told what they are always told, that they are entitled to a free and independent lawyer. If they know a legal aid lawyer they can contact them, if they do not they can use the solicitor on the duty rota.
Courts will struggle to function as the legal strike bites
The duty solicitor will still be working. Solicitors are contractually obliged to continue to cover their duty slots. But those who know the lawyer they want will not be able to get their help. Instead, they'll likely be given a leaflet from striking lawyers which reads:
"Until the government agree to pay us a fee that allows us to properly represent you and do the best we can for you, [we] will not be attending police stations.
"The law provides that the government make a solicitor available to you and the police must ask you before the interview if you want one.
"If you cannot have a solicitor then the police might ask you to waive your right to one. The choice is yours of course but you do not have to be interviewed without a solicitor. This might mean the police cannot interview you at all."
Solicitors are advised to not even give clients free advice
Internal guidance sent out to solicitors taking part in the action reads:
"No own-client police station cases will be accepted on a legally aided basis from midnight on the 30th June 2015. Accordingly, we will not attend the police station to advise prior to interview.
"We will not provide telephone advice. We will not advise on any aspects whatsoever.
"We may want to speak with the client to explain the nature of our action. However, be careful not to advise. If you are deemed to have advised then you may be liable for any action/inaction thereafter. Similarly, the client may be considered to have received advice which may prejudice the client in any later applications regarding his treatment and the admissibility of the interview."
The contractual obligation to provide a duty solicitor seems like it makes the entire action redundant, but few expect them to be able to keep up. Most people in police stations do have their own lawyer. With all these cases funnelled into the duty rota system, it is unlikely to be able to handle demand. It's the equivalent of closing five Tube lines. The others can't handle the additional strain.
Those arrested will still be able to access a duty solicitor, but they're unlikely to be available
Those who arrive in court face the same problem. When they phone or see their lawyer they'll be told there's no legal aid representation until the government relents. Again there will be a duty solicitor present, but they can only deal with relatively basic matters.
The internal guidance to solicitors is necessarily quite harsh. They are likely to already be in court dealing with the cases they started before midnight last night. But if they come across their clients, they must refuse to help. It reads:
"We are likely to be present at court dealing with existing matters and it may be difficult to avoid clients appearing for the first time and expecting representation. Accordingly, it will be unwise to offer any advice, even for free since this may be deemed advice for which we will later be held accountable. Similarly, the client may be deemed to have benefited from advice which may prejudice him/her in any later applications.
"The client may be told about the reason for the refusal to accept instructions on a legally aided basis but stop short of offering any advice.
"There will be no excuses made for representing clients due to age, vulnerability, nature of charges etc. It is considered that this will quickly lead to a breakdown of the intended protocol."
The magistrates' courts are likely to buckle under the strain. All cases start in a magistrate's court, from which many of them are sent on to the crown court, where barristers are instructed to appear. When the magistrate's court buckles, the system falls.
But will it? The effectiveness of the strike depends on a degree of solidarity between solicitors firms which has historically failed to materialise. The temptation to swoop in and take up all the cases other solicitors have left is usually too great. But this time the biggest firms in the country have signed up to the strike. The remaining firms which have not signed up "won't touch the sides", an organiser tells me.
Ostensibly, a successful solicitors' strike would make action by barristers irrelevant. If the solicitors hold firm, there'll be no work for barristers to do anyway. But in truth the action needs barrister support to seal the deal. In Liverpool, where a shock statement kick-started the current action, barristers agreed to join the strike and additionally implemented a no-returns policy where they would not cover for each other when not serving on a case. It was more than enough to bring the entire system down.
Michael Gove could face a baptism of fire as justice secretary if the strike suceeeds
But that level of solicitor-barrister solidarity is not always present in other parts of the country. The barristers' national body, the Criminal Bar Association (CBA), is not backing action, despite overwhelming support from its members. Its chairman, Tony Cross, spoke at the Manchester meeting on Monday night and urged people not to strike. He was booed off. Another executive member spoke in support. It's clear the leadership is split. There are rumours of a CBA executive meeting in London last night but they wouldn't confirm it.
For most solicitors, this is about showing the government how reliant it is on their goodwill for the system to work. Every day they work pro-bono, as Michael Gove urged wealthy law firms to do. They are just not recognised for it. Instead, they say their fees are cut over and over again until it becomes commercially impossible to continue.
"They've privatised prisoner transport and court interpreters," one solicitor tells me, as an example. "We used to have a van per court to pick up prisoners. Now there's just one van full stop. They go round picking up prisoners and then drop them off at courts one by one. It takes ages. We sit there at court waiting until 1pm, not getting paid.
"Or take interpreters. Capita sends one to two or three courts. We wait all day for them and don't get paid. Sometimes the case gets adjourned for the next day and we don't get paid at all. One fee: that's what a solicitor is paid. But we sit there, waiting with our client so we don't leave them alone and anxious in court."
That goodwill is about to be taken away. The creaky courts system is about to see what happens when the people who strive to keep it together withdraw their labour. Over the next few days we'll see if it can handle that level of disruption.