The Government has decided to criminalise the possession of nitrous oxide for personal use as part of its crackdown on antisocial behaviour, ignoring the advice of experts that such a move will be harmful and counterproductive. There are better ways to reduce health risks and antisocial behaviour associated with the drug.

In practice, criminalising personal possession will mean changing the legal status of nitrous oxide from its current status of control under the Psychoactive Substances Act (PSA) 2016, for which sales are illegal, but not possession (unless in prison), to control as a class C under the Misuse of Drugs Act (MDA) 1971. Classification under the MDA involves much harsher maximum penalties for supply (rising from 2 years to 14 years), and also criminalises possession (with a maximum penalty of an unlimited fine and up to 2 years in prison).

The Advisory Council on the Misuse of Drugs (ACMD) is the government-appointed expert body tasked with evaluating risks and making recommendations to the Government on policy and law responses. It specifically recommended against moving to criminalise possession under the MDA on the basis that it was not proportionate, was not justified by its harm assessment, and could lead to unintended consequences. Instead, it recommended better use of existing laws alongside focusing on risk education and harm reduction.

The Government contemptuously overruled the committee’s advice within days of its being received, without even providing the mandated written response. Indeed ministers had heavily trailed the move even before the advice had been handed over. It seems clear a political decision had been made independently of expert advice. By ignoring the ACMD’s advice the Government has again put the pursuit of populist ‘tough on drugs’ headlines above science and evidence-based public health advice.

This is not to deny the legitimate concerns about nitrous oxide. While experts agree that occasional moderate consumption by most users is low risk, as with all drugs, there are particular health harms among a small minority linked with longer term high-intensity use - known to cause potentially serious B12 deficiency, nerve damage, and related symptoms. This problem is worsened by the poorly regulated availability of new, larger dispensers.

There are also very visible problems with littering, informal street sales, and dangerous use whilst driving.

Egged on by unhelpful tabloid ‘drug panic’ media coverage, the Government has latched onto nitrous oxide as an opportunity to flex its law and order credentials – tying the proposed ban to a ‘crackdown’ on antisocial behaviour.

The problem is that criminalisation of possession does not address any of the identified concerns, and is likely to make many of them worse.

Criminalising an activity more than a million people each year engage in will create huge new taxpayer-funded costs for our already overstretched police, courts and prisons system. And while there is little or no evidence of a deterrent effect from such criminalisation, we do know that criminal records and incarceration fuel stigma and seriously damage life chances, impacting on employment, housing, personal finance, travel and relationships.

The greatest burden of such criminalisation will be carried by young people from socially marginalised communities, notably young Black people, already disproportionately subject to drug-related police surveillance, stop and search, arrest, and prosecution.

As well as impacting people who use it, increased criminalisation risks handing complete control of nitrous oxide production and sales to the same organised crime groups that already dominate other illegal drug markets. Empowering and enriching criminal groups will fuel violence and anti-social behaviour, not reduce it. Illegal production will increase health risks rather than reduce them.

The problem is not an absence of viable solutions – it is this Government’s determination to pursue the wrong approach for the wrong reasons, apparently unchallenged by an opposition equally fearful of being portrayed as ‘soft’ on law and order.

If the Government was serious about addressing the problems with nitrous oxide it would listen to the experts, including the ACMD, which has encouraged a health-led approach supported by better use of existing controls. It is important to be clear that all the concerns cited by the Government sales of nitrous oxide for recreational use, littering, and use while driving - are already sanctionable offences. To a large extent, these are problems related to inadequate deployment of existing controls, not laws that aren’t tough enough.

If this Government wanted to reduce risks, it would sensibly direct resources towards targeted risk education for vulnerable groups, and restrict the market (either through licensing of sales, purchase, or imports) of the bigger nitrous canisters, which have no legitimate uses and are more associated with risky high-intensity use. If we want to reduce litter, why not adopt the sort of deposit based recycling scheme for nitrous canisters that has been so effective for plastic litter in other countries (and is soon to be rolled out in the UK)?

But just as expert opinion, from the ACMD and Royal Colleges of Medicine all the way to the WHO and UN, is pivoting towards proven decriminalisation models and public health pragmatism, this Government appears determined to double down on the political theatre of ‘get tough’ drug policing. If the tragic failure of the last 50 years teaches us anything, it’s that more drug war will never be the answer.

For harm reduction information on nitrous oxide see the Crew2000 nitrous oxide resource page

This is an edited and updated version of a piece by Steve Rolles originally published on Conservative Home

Header photo "Laughing Gas, Woronzow Road, NW8" by TonyHall is licensed under CC BY 2.0.