There’s already been a lot of (virtual) ink spilled discussing the proposal in the Queen’s Speech to ban all ‘legal highs’. Chris Snowdon and Ian Dunt have already neatly attacked the inconsistency and illiberalism of the proposals, and an article in the Guardian laid out the issues pretty clearly, so I’m not going to talk about the specifics. (Though it’s worth noting the conundrum that if nutmeg is permitted as a foodstuff, couldn’t a flavoured herb that mimics cannabis also be considered a foodstuff if it could be argued that its primary function is to flavour the food?)
Despite the generally negative tone of commentary on the policy, I remain optimistic. I’ve said before that ‘legal highs’, along with e-cigs, might provide a catalyst for a reviewed genuine debate on drugs policy, and that’s certainly the case if we just look at those articles by Chris and Ian.
The issue for me, though, is almost more fundamental than their questions of consistency or the Guardian’s worries about whether the proposals will ‘work’ – assuming for a moment that there is just one aim of drug policy: to reduce harm, rather than for government to be tough, or simply to be doing anything at all.
Of course the discussion of whether this approach has ‘worked’ in Ireland is important and interesting, but perhaps the most important point is the limited role evidence can play in this process. ‘Head shops’ may have disappeared, but that might be simply driving the market underground, which may be more dangerous both in terms of product regulation and quality, and violence and disruption relating to the trade in the substances. And if fewer people are attending treatment reporting ‘legal high’ use, that might be that they’ve substituted illegal substances (which may or may not be a good thing), or they might be simply more reluctant to report using these substances now their legal status has changed. In fact, it’s conceivable that reporting use of legal highs specifically was attractive because it meant clients didn’t have to admit doing anything ‘wrong’ (or, more accurately, illegal).
If we try to get to a more direct measure of ‘harm’, we’re still scuppered. It’s hard to measure chronic harm, like dependence or addiction, as it can take years to be reported or even to develop. It’s also very difficult to identify acute harm from hospital stats, for example, because it’s unlikely that the data recording will be of sufficient quality to allow you to distinguish between poisonings from ‘legal’ intoxicants and those from other substances.
But that’s almost by-the-by. All these difficulties with evidence and ‘what works’, along with the apparent inconsistency, highlight what this debate is – perfectly reasonably – about, and why exceptions are the rule.
That is, the key feature of this policy is that specific substances – alcohol, caffeine, nicotine etc – will have to be individually excluded from the ban on psychoactive substances. This immediately raises the question why these substances? But there is an answer to that: they are embedded in our society far more than the others. We probably know more about the effects of these substances on humans than the effects of truly new psychoactive substances, but the real reason they’re legal and not others is an accident of history.
But I’ve read too much Burke and Oakeshott to think that we should be beating ourselves up for not having a ‘rational’ drugs policy. As I’ve said on this site before, muddling through might actually be the most rational response to the issue of psychoactive substances. Those accidents of history have happened, and we do have to make policy with all the baggage that comes with past policy decisions; we can’t simply make a clean break and decide on policy from first principles – not to mention the fact that if we’re talking about anything less than global policy then we’ll have to pay attention to what other countries and regions are doing on these issues.
But to say we’re muddling through, and perhaps being a bit irrational, isn’t quite the same as saying we must be unclear or (to use that performative word) obfuscating. We can be open about the reasons alcohol, caffeine and nicotine are different – and maybe then think about what that means for taurine or e-cigs.
Perhaps there is some consistent principle here about food and drink as methods of delivery (which would say something about the discomfort politicians seem to feel about instrumental use of psychoactive substances), which would then exclude smoking tobacco. Or perhaps it really is just muddling through with a ‘feel’ for what is right.
Either way, this sort of open debate would reject the fiction that policy decisions are made on the basis of immediate ‘harm’ from a substance; but it could lead to a more holistic discussion that acknowledged the social elements of intoxication and substance use: that different stimulants, for example, mean different things even if they have the same ostensible physiological effects, and so can be legitimately treated differently. Drunken comportment is socially constructed, as anthropologists of alcohol never tire of observing, and we must make policy in that social setting.
Making policy for a perfect world doesn’t lead to perfect policy, and I would welcome a debate that is more honest and realistic as much as rational and evidence-based.