The government recently announced a long-expected ban on Nitrous Oxide possession, as they attempt to shore up their base ahead of May’s local elections and deliver some cheap and quick policies which Rishi Sunak can burnish as proof of his competence at next year’s general election.
The move will see control of the substance under the Misuse of Drugs Act – an escalation in terms of potential sanctions and enforcement priority from the Psychoactive Substances Act under which it is currently controlled. The ban is also in direct contradiction of the advice of the ACMD (the independent expert drugs body appointed to advise the government) which said it was disproportionate, unjustified and likely to have unintended consequences.
Criminalising possession of nitrous oxide (aka NOS) – something that in practice will prove laughably difficult to enforce – will achieve none of the desired effects in terms of firstly, reducing supply or cutting demand, and in turn addressing the issues that the ban is being framed as a solution to; namely, littering, drug driving, sale of NOs to children and very rare but increasing cases of nerve damage caused by extreme levels of use.
Instead, as criminalisation always does when it comes to drugs, it will simply increase risks and harms to users and thus wider society. Firstly, by driving supply into the unregulated illicit market – where the current protections afforded by the knowledge that the NOs being consumed is almost certainly fit for human consumption given its theoretical production for use in cafes, bakeries, hospitals or dentists.
It will also mean that users now face the prospect of a criminal record, with up to 2 years in prison and an unlimited fine, and the catastrophic attendant consequences in terms of life chances, if caught in possession of Nitrous Oxide.
Criminalising an activity that over one million people per year engage in according to the latest figures – a figure which all evidence suggests is unlikely to be seriously affected by the act of criminalising it – risks creating further pressures on already overstretched police forces, adding to court backlogs, and add to the prison overcrowding problem. Sources have indicated that the Home Office received significant pushback on the plan from the Ministry of Justice on this basis, as well as from the civil service, but political pressure from Number 10 and the Home Secretary ultimately won the day.
The Labour party, given their recent focus on crime (anti-social behaviour in particular), authoritarian policy direction under Steve Reed, Yvette Cooper and the Blairites running LOTO and party HQ, and Keir Starmer’s comments on cannabis last month, also duly announced their support for the ban.
In yet another instance of the evidence about health and costs being ignored, Labour’s decision to back the move is a deeply cynical piece of political posturing, designed to prevent any space opening up between them and the Tories on ‘law and order’ lest they be seen as being ‘soft on crime’. The problem with this ‘strategy’ for Labour is twofold. Firstly, you get no credit as an opposition for backing government policy, you let the government play on easy mode, and tacitly endorse your opponents’ philosophy of change (in this instance, the idea that punishment and increased harms are conducive to behavioural change – an approach for which there is no evidence).
Secondly, when the ban fails to achieve the reduction in littering and ASB that it promises, there will be calls from the same campaign groups and media outlets that have rallied to ban NOs, to go further down the line of deterrence by ramping up punishments and ordering more ‘crackdowns’.
Given Labour’s not insignificant chance of being in power after the next election, this is a problem that they will have to deal with. And having backed Sunak’s ban in the first instance (validating the prohibitionist policy consensus in doing so), their only move will be to move NOs from class C to classes B or A in an effort to look ‘tough on drugs’. So not only is the ban not solving the problems surrounding NOs use, it’s creating a whole set of new ones too.
The irony is, of course, that ASB, drug-driving, littering, selling NOs to children, and supplying for recreational use are all already illegal. Criminalising possession of nitrous oxide will do nothing to address these issues. Instead, we should be taking targeted action aimed at reducing the harms and costs that we’re seeing as a result of increasing (and evolving) patterns of NOs use.
Banning the new larger ‘smart whip’ canisters, solely designed for recreational use and more dangerous to users by enabling longer hits without oxygen in between is an obvious example.
Properly enforcing existing regulations under Psychoactive Substances Act that give trading standards the powers to ensure it’s being sold appropriately. Reversing austerity and restoring adequate levels of funding to local authorities enabling them to deal with littering, and promoting the spread of harm reduction advice in populations we know constitute most users to help avoid the rare cases of nerve damage.
The nitrous oxide ban is policy-making of the very worst kind, both ineffective and grotesque. A stunning overreaction to what is essentially a littering problem by a class of politicians for whom an alternative to prohibition is both unimaginable and undesirable. A depressing political consensus on drugs that has become so dogmatic as to be almost subliminal, requiring no critical engagement or reason on behalf of our politicians, simply an unthinking call for more of the same. Sadly, that joke isn’t funny anymore.
Jay Jackson is a drug policy reform campaigner and secretariat of the Labour Campaign for Drug Policy Reform. Tweets @wordsbyjayj . See Jay and Paul discuss the potential problems with the NOS ban the week it was announced on our YouTube channel above.