On the merits of blanket bans

This morning there have been two reports released by the Home Office: one on ‘legal highs’ and one on broader ideas of drug regulation.  I was asked to comment on these by Radio Solent, and I thought I’d post some quick thoughts here.  (At the time of writing, the full reports weren't available; only an embargoed press release with some quotes that I'd been sent.)

This isn’t a comprehensive response, but it did get me thinking about drug regulation more generally – a topic I’ve touched on before here and here, for example.  You can listen to one of the interviews in full here (with me starting at 2mins 50secs).

What’s being proposed is some form of blanket ban on ‘legal highs’, as opposed to the reactive banning done at the moment, through Temporary Class Drug Orders, and then adding substances to the list within the Misuse of Drugs Act.

The first advantage of this sort of blanket ban would be consistency with other substances.  At the moment, problems emerge by virtue of the special status unwittingly granted to ‘new’ substances.  People may be tempted to choose these over more established substances, which isn’t a great idea because everyone – from users to medical professionals – knows less about them compared to more established drugs.  Also, and this is something that was put to me by an interviewer yesterday, the apparently ‘legal’ status might be introducing certain people to drug use who wouldn’t otherwise consider it.

This second point isn’t necessarily a problem, unless that drug use is seen as dangerous and/or immoral.  However, that brings us back to the first point, which is that on balance I’d rather people were using cannabis than ‘synthetic’ cannabis, for example.  The advantage of a blanket ban is that, setting aside the detail, it sends the message that these substances aren’t endorsed or legal – and that’s one of the key potential problems with the current inconsistency: even where these substances are now illegal, they’re still marketed of and thought of as ‘legal’, and therefore (I’d suggest) at some level safe and endorsed.

Of course, the reality of the policy may prove problematic: will the government really be able to enforce a ban, and how will that affect research into new drugs and chemicals?  (Although the government has said before that controlling substances doesn’t inhibit research, I’m sure David Nutt would have a different view.)

We can predict pretty confidently that in reality, the government won’t be able to enforce a ban any more than it’s already able to enforce bans on use of heroin, cocaine, cannabis and any other illicit substances – particularly with the emergence of the ‘Dark Net’.

And here’s where the other report comes in.  That’s a review of evidence on how national drug policies relate to levels of use and harm.  That is, whether decriminalising use on the one hand, or introducing harsh penalties on the other, can change a country’s levels of drug use by.  From my sight of the press release scan, it looks like there isn’t really much in it: the harms depend on other factors.  As the report puts it: “We did not in our fact-finding observe any obvious relationship between the toughness of a country’s enforcement against drug possession, and levels of drug use in that country” (p.47).

In some ways, this is an argument for a sort of natural conservatism: why change the regulations, given that they’re irrelevant.  (This is interestingly not the minister’s take.)

I’m actually more interested in what the publication of the report says about the possibility of mature policy debate in this country.  Drugs policy is an area where thinking is not clear – or at least not generally conveyed clearly in public debates.  The report itself falls into this trap, solemnly declaring that we should have policy based on ‘evidence’ and talking in favourable terms of treating drug misuse as a health problem rather than a criminal one.

But these sorts of statements are close to meaningless in themselves.  As long as these drugs remain illegal, drug policy will always be a criminal as well as a health matter – and much of the criminal issues relating to substance wouldn’t be affected by decriminalising possession: if you still need to steal to feed your habit, I can’t see how that’s going to change by decriminalising the act of possession.

And evidence – as I’ve said before – doesn’t tell you what policy to implement.  That’s based on moral and political principles, and will be the result of a trade-off.

The advantage of this report, and the debate today in Parliament, is that they might actually open up some genuine debate about those aims and principles.  When Norman Baker says that policy should be based on evidence, this isn’t quite the right phrase – but there is definitely wrong with policy debates around drugs.  I think ‘legal highs’ (and e-cigarettes) could be the most important and interesting things to come along in recent years to promote an open debate that really gets to the root of what government should be interested in when it comes to psychoactive substances.

As Virginia Berridge points out, there are bound to be historical accidents and anomalies that shape approaches to different substances, but at the same time it would be nice to feel that there is conscious deliberation going on and to have some open debate about what makes alcohol, tobacco, coffee and all the rest different from ketamine, marijuana, heroin and all those other substances that the government has declared to be unacceptable.

So far, the conversation has only been about decriminalisation, and that’s where advocates of a more liberal policy would have to make a choice: is this a sensible first step in the right direction, or does it endorse what is fundamentally an unjust and unworkable system?  (You can see Steve Rolles and Julian Buchanan go over this ground pretty much every day on Twitter.)

Of course, one thing we often forget in these debates – and I haven’t touched on yet here – is how harms from drugs don’t only relate to users, but also producers and distributors of drugs.  That is, one of the biggest problems of making the drugs trade illegal is not the users in the UK, so much as the lives of those in producing countries, where crime undermines the state (think Mexico or Afghanistan), or those involved in production in the UK, who are often victims of trafficking.  It’s a great shame when this is ignored in favour of a somewhat parochial debate about UK heroin or cocaine users.

However, it’s not often I feel optimistic about policy – but today I’d rather focus on the positive (if only to distract from my tiredness at having got up stupidly early).  If a government can raise these issues shortly before an election, then surely there is hope that we can have that grown up debate, which would be a good thing regardless of your views on drug use.