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And another thing …
(about the Psychoactive Substances Bill)

One of the things some people claim shows the bill is “badly drafted” is the way exemptions are written for caffeine and alcohol.

The implication is that Parliamentary counsel are so incompetent, they have created self-contradictory exemptions, since any caffeine or alcohol product obviously contains a psychoactive substance. Duh!

Close, but no tobacco product. Because section 2(1) provides that

In this Act “psychoactive substance” means any substance which—
(a) is capable of producing a psychoactive effect in a person who consumes it, and
(b) is not an exempted substance

it follows that anything exempted in Schedule 1, whatever action it may have on the brain, is not, for the purposes of this legislation, a “psychoactive substance”. So the exemption for caffeine (for example) works perfectly. It reads:

Caffeine or caffeine products.

In this paragraph “caffeine product” means any product which–
(a) contains caffeine, and
(b) does not contain any psychoactive substance.

Since caffeine is exempt, it is not a “psychoactive substance” at all; so a caffeine product such as a soft drink is taken out of the exemption only if it contains some “other” psychoactive substance. I put other in inverted commas because of course it would not be “another” psychoactive substance, caffeine not being one.

Parliamentary drafters can and do make mistakes, and there can be bad drafting. But actually, they are a bright bunch. Mostly, in my experience, if you think a provision is badly drafted it’s you who’s missing something.

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11 Comments

  1. I rather think you are missing that the exemption is anticipating itself.

  2. This is actually the reverse of an Epimenides paradox, a statement which cannot logically be either true or false. In this case, caffeine can be either a psychoactive substance or not a psychoactive substance, without causing a logical contradiction in either case. The problem with this is that it is unhelpful to people who are trying to interpret it.

    I agree with you, however, that the courts are likely to interpret it in the way that you do – the policy behind the clause is clear enough.

  3. cf. “This statement is true”

    This is a logically non-contradictory statement if it is true but it is also a logically non-contradictory statement if it is false. So, which is it?

  4. I think your argument falls down because the two paragraphs defining alchohol products and caffeine products are not in fact exemptions, so that the later paragraphs you quote cannot refer to them. The wording works only because we know how it ought to work in advance, but it is drafted poorly.

  5. Carl Gardner,

    You wrote the exemption reads:

    “Caffeine or caffeine products.

    In this paragraph “caffeine product” means any product which–
    (a) contains caffeine, and
    (b) does not contain any psychoactive substance.”

    But since caffeine is in and of itself a psychoactive substance, that is a non-issue, since the condition A AND B is impossible. The only way it becomes possible is by already implementing the very exception this part actually only introduces.

    It should have been phrased

    “Caffeine or caffeine products.

    In this paragraph “caffeine product” means any product which–
    (a) contains caffeine, and
    (b) does not contain any OTHER psychoactive substance.”

  6. Hydroxide,

    Have another and closer look at clause 2(1). It means that whenever in the Act you see the words “psychoactive substance”, those words do not include anything exempted in Schedule 1.

    Therefore, since “caffeine” is itself listed in the Schedule, the words in (b) don’t refer to caffeine – with the result that it is possible to fulfil conditions (a) and (b). The only way you could sow confusion would be add in an at-best redundant word like “other”. If you did that, the courts would no doubt realise it was just a drafting error and make sense of it, but it would be a drafting error.

  7. Carl,

    Sorry, but that’s circular reasoning. That’s precisely why I said it anticipates the exclusion. Yes, “caffeine” is listed in schedule 1, with a definition of the term that only makes sense if you already apply the exclusion that’s only established by that listing itself – you’re basing a definition on itself.

  8. So it looks like a duck and quacks like a duck, but it isn’t a duck because it is an ‘exempted wildfowl’???

    Okay it makes a sort of sense if you’re used to reading Acts of Parliament, but really… I am sure there’s a better way of putting it so that it makes sense to hoodie wearing weed-dealers. After all, it’s mostly them that the law is for…

  9. I’ve arrived at this article a little late and, whilst I completely agree with the logic of Carl’s analysis, it would have been more helpful to readers of the act if the defined term in clause 2(1) contained an adjective in front of “psychoactive”, for example a “relevant psychoative substance” (or a “prohibited psychoative substance”).

    With this small change, the section on caffeine tells the reader that a “caffeine product” is one which does not contain any relevant psychoactive substance. The inclusion of the adjective immediately warns the reader that the passage does not refer to all psychoative substances: readers are put on notice that they must look for the defintion of “relevant”.