Examination of Witnesses (Questions 200
TUESDAY 6 NOVEMBER 2001
200. We did ask the Home Office for some added
papers or ammunition against your persuasiveness which we expected,
so to some extent we are armed. Can I ask about decriminalisation.
How far would that be considered different from outright legislation?
(Mr Davies) You said "legislation", you
201. Yes, as opposed to decriminalisation.
(Mr Evans) I think it would be a completely false
distinction. The Home Office talks about civil sanctions and so
on, as a lawyer I see that as a completely false distinction.
One simply has to make the mind shift from a system which proceeds
from an assumption of fundamental illegality, which we have had
since 1920, and it is very difficult to get out of it, to a system
of reasoning which proceeds from legality and deals with malfunctions.
I doubt if anyone here can do it. That is one of the reasons why
we sat down for three months and tried to do it ourselves, the
15 of us, forcing ourselves to think through a new world where
there was no presumption of illegality. It is a very difficult
thing to do.
(Mr Kushlick) If we look at the Dutch as a model of
decriminalisation, and alcohol, tranquillisers, tobacco, paracetamol,
aspirin, as models of legalisation, the difference is the management
of the supply side, and that is what in Transform's view makes
the distinction. What legalisation enables you to do, and this
could only be done by unsigning or renegotiating the international
treaties, is to control the supply side through legalisation,
through one of those four methods. Decriminalisation leaves the
whole structure in place and means you can mitigate against the
worst excesses, the prohibition causes, and, as Conor was saying,
you can tinker and tamper with bits and pieces and you can regulate
the worst excesses of prohibition, but only legalisation will
enable you to control price, purity and production.
202. But in your own memorandum, paragraph 27,
you do say, "Whilst Transform ultimately calls for the legalisation
of drugs, that can only happen in conjunction with other countries
and after the rewriting of the international treaties. In the
meantime, decriminalisation would remove criminal sanctions .
. .". So you accept it cannot be done as far as changing
the law is concerned without changing international treaties?
(Mr Kushlick) In terms of regulating the supply side,
legalisation can only be done by renegotiating the international
treaties. In terms of not busting users and dealers and putting
in place coffee shops, the Dutch have been able to do what they
have done and they are still signatories; they have not been ostracised
by the whole UN community and they still play a part in international
politics. There is room for manoeuvre.
203. But when it comes to actual legislation,
you accept it has to be done by a change in international treaties?
(Mr Kushlick) Legalisation. Unless you just ignore
them. The US do it quite happily, so you can do a Kyoto with it
and pretend they do not exist.
204. I am quoting your own memorandum.
(Mr Kushlick) I am saying you can ignore them, but
I would suggest that is not a useful way forward in terms of maintaining
your status as an international player.
205. Ignoring treaties, Mr Evans, you are a
lawyer, is that a good idea?
(Mr Evans) There is no doubt in the case of cannabis
we can simply derogate. I think we can give six months' notice
and say we are no longer going to comply with it. The bigger problem
is, and it is not a problem which has resolved by the Dutch experience,
if you simply decriminalise by a nod, nod, wink, wink by the police
force, you decriminalise consumption but where do these cafés
get their supplies from? At the moment the Netherlands are trying
to face that and I gather the Parliament has passed a law decriminalising
the backdoor as well as the front door. I think we are faced with
something much more difficult but we have not got the various
judicial half-way houses which they have in continental systems
like administrative offences which do not equate to crimes, the
power to give a direction to the prosecuting authorities generally
not to take action. We have not got any of those devices in our
law and we are, and you are, faced with the uncomfortable proposition
of actually changing the substance of the law in order to get
an effect. I think a very large number of the continental experiments,
including Portugal and Spainnot Italy because Italy faced
up to complying with the Human Rights Act with the European Convention
and specifically changed their law on personal consumptionare
fudging it in ways which you, as parliamentarians, would find
probably unacceptable. We have not got a number of the fudging
devices which are available in continental criminal law.
206. When we had the senior Home Office officials
last weekand I do not criticise, they cannot say anything
out of place for the obvious reason that it is not their job to
do so, it is ministers'I, with colleagues, made the point
that in effect the Home Secretary's announcement of a fortnight
ago meant those in possession of small amounts of cannabis would
not be prosecuted so it was being decriminalised. The Home Office,
again with the reservations I have made about senior officials
who are civil servants, denied that. Would you accept, gentlemen,
that what the Home Secretary has said has meant that those in
possession of small amounts of cannabis will not face any criminal
sanctions in practice, therefore it has in effect been decriminalised?
(Mr Evans) The answer is no, it has not. There are
many, many, particularly young professionalsI have heart-rending
discussions with young teacherswho have had their careers
wrecked merely for a minor cannabis possession offence. The fact
is it is still on the statute book. I am sure the DfES would still
withdraw a teacher's licence if a teacher is (if it gets out of
course, you have the argument it may never get out) was caught
in possession. The teacher would not be arrested and there probably
would not be a prosecution, but it would be quite enough still
because it would still be an illegal act to ruin careers, as it
does in tragic ways all the time, it is happening now. So I think
decriminalisation is simply a device to avoid a challenge in the
courts under the Human Rights Act. It will do that, of course,
because there will be no actionable wrong under section 5 of the
Misuse of Drugs Act, namely simple possession for personal consumption.
No one will be arrested, therefore there will not be an actionable
wrong, no one will be prosecuted, therefore there will not an
actionable wrong, and therefore Britain will not get taken to
the European Court of Human Rights. I think that is the sole objective
of the present change in policy.
(Mr Buffry) If the policy suggested by the Home Secretary
is implementeddeclassification of cannabis as a class C
drugcannabis possession would still be an offence under
criminal law, punishable by up to two years in prison, and for
supply by up to five years in prison, so the sentences will come
down. Basically the idea is that if somebody is caught with a
small amount of cannabis, they might receive a warning from the
police, have the cannabis confiscated, possibly receive a caution
from the police, possibly a summons to court at a later date,
but there is no limit put on to suggest what a personal amount
of cannabis could be. If somebody, for instance, was growing cannabis
at home, they could grow several pounds of it for their own use,
be carting it down the street for some reason and get caught with
a large amount of cannabis for their own use and still face prosecution.
At the same time, for the people who are not growing it, there
would be no legal supply yet the dealers themselves would face
less severe penalties if caught and people might be more tempted
to try it knowing they were not going to get arrested. The problem
is, this is a very vague suggestion, it is not decriminalisation
at all, it is reclassification. I do not see it as going to solve
many problems for anybody other than the police who will not have
to spend so much time arresting people and filling out reports
and so on. Secondly, if somebody is caught, for instance, in possession
of ecstasy or caught for shoplifting and arrested for those offences
and found to be in possession of cannabis, they will probably
still be prosecuted as well.
207. I take the reservations both of you have
made, and I think they are very important ones which will certainly
be reflected in our considerations when we decide on these matters
at the end of all the evidence, but it has been interpreted by
the media as well as a number of commentators, that in effect
this is a Government U-turn, that the Government has at least
viewed this as a sensible approach, whatever may happen in months
or years to come. But as far as I can tell from the answers from
both of youand presumably the other three witnessesyou
do not see it in those terms, that the Government has taken the
first step towards the sort of policies which you would like to
see? You do not see it in that way?
(Mr Kushlick) The thing is, it is not just cannabis
which was mentioned. One of the most important things which was
mentioned in the press release from the Home Office at the same
time as the announcement on the reclassification of cannabis,
was a new look at the heroin-prescribing programme. In terms of
looking at things anew, looking at the drugs which as a result
of prohibition have caused the most harmheroin and cocainelooking
at heroin again is the most important. In terms of police allocation
of resources, cannabis reclassification is going to make some
difference, but not if they focus on class A dealers, because
we know that does not make any difference either. The Home Office
Study of Mike Hough shows that class A dealers are replaced within
hours or days, or they are just displaced to other areas of the
city. The significant issue is the re-look at heroin prescribing
and, according to the Independent on Sunday article, an
increase of five-fold in the number of people who are going to
get scripts. We need to look at the whole thing. In terms of resource
allocation, there is no point focusing police resources on busting
people who smoke dope, it is a waste of time and everybody knows
it. There is a strong case for looking at offering wider treatment
modalities to people with heroin dependency, and there is a clear
indication that is being looked at sincerely for the first time
really since the Labour Government came in and harm reduction
fell off the menu.
(Mr Evans) I do think it is a first step. I think
the whole fallacious logic of prohibition is crumbling, and this
is an indication by the Government that it simply cannot sustain
its position in the face of the Human Rights Act. I think it is
now extremely unlikely there will be any successful Human Rights
Act challenge to the Misuse of Drugs Act 1971, because it was
only section 5, namely possession for personal use, which was
open to human rights attack, and the Government over the last
18 months has gradually withdrawn from that position, culminating
in the very important statement made.
208. I am glad you said that because otherwise,
in the form of a question, what would then be the difference between
the Government's reaction when the Police Foundation report came
out last year, when the whole Government line was there could
be no possible change, no reclassification, and what has happened
since? Presumably the other four of you do accept that however
small a step, it has been a step in the sort of direction you
wish to see?
(Mr McNicholas) I think it is the beginning of a domino
effect. If you apply the same logic to ecstasy as was applied
to cannabis in this case, then immediately ecstasy must be classified
as class B, and possibly even as class C. If you take the logic
further, ultimately you end up with legalisation. My problem with
decriminalisation at the moment is that a lot of drugs users are
young people and it is very important they are able to build a
relationship of trust with those people in authority, be they
politicians or be they policemen. If you are in a situation where
if you are caught with small amounts of cannabis, all that decriminalisation
means is you are not guaranteed to be prosecuted but you could
very well be prosecuted. That to me is a terrible fudge to stick
on a whole load of young people who as far as they are concerned
are simply going about recreational activities. It does not help
build an establishment of trust with people in authority. These
young people are not voting.
Chairman: We will not get into that last point,
if you do not mind.
209. If you accept the market and the demand
for drugs is user-led, how do you foresee personal responsibility
for the individual user's actions being introduced into policy?
If they are going to be free to have access to the drugs they
want, there must be some way of making them responsible for the
outcomes of that usage.
(Mr Evans) Not the Government's business.
(Mr Kushlick) It is not because
210. It is, because the taxpayer has to pick
up the bill.
(Mr Kushlick) What do we do with alcohol and tobacco
at the moment? We have a situation where tobacco kills 300 people
every day. Government does not actually care that much.
211. That is a rather controversial statement.
Enormous resources are taken up by dealing with the health effects
(Mr McNicholas) But they have not banned tobacco advertising,
212. You are not wishing us to, are you?
(Mr Kushlick) If you want to hand another trade to
the mafia, you could do. If you were to ban either alcohol or
tobacco, you would hand another couple of substances to the mafia,
and the price would go up and quality would go down. The issue
is, what is the Government's responsibility in terms of people
who are going to get into health difficulties as a result of drug
misuse, and what do we do about addiction? At the moment, we offer
facilities for people to come forward who have alcohol or tobacco
problems and we provide treatment for them but we do not go around
forcing them on to abstinence orders, and we do not do it for
tranquilliser-users either. People who are addicted to tranquillisers
just stay on them. They are so hard to come off, it is a lot harder
to come off tranquillisers than any other drug, and they are pretty
much prescribed until people die. That is what we do with those
drugs. Let us level the playing field here. I know we are opening
up a can of worms in terms of moving drugs from a prohibited status
into a legalised status, but let us not miss the bigger picture
here in terms of what we currently do with drugs which are already
legally available. Unless we change the whole of our drugs policy
and look at those things and change the way we look at them, there
is a danger of moving into territory that is unheard of really.
213. I take it from the previous answers, you
all think that Blunkett's recent announcement is a small step
in the right direction, but I want to get to what you think the
next step would be. Is it decriminalisation, is it Peter Lilley's
licensed premises, is it coffee shops? Where do you want to take
it? Just on cannabis at the moment.
(Mr Kushlick) We can take away all criminal sanctions,
there is no reason for cannabis to have any criminal sanctions
214. Supply and use? You have to be precise
is no point busting users. In terms of supply, what we really
need is a legalised supply.
215. So licensed coffee shops?
(Mr Kushlick) Licensed retailers.
216. Mr Davies, are you for licensed retailers
(Mr Davies) I am not terribly interested in cannabis.
I think it is almost too small a problem to be dealing with. Can
I talk about the Blunkett announcement? There is no point saying,
"We will take a look at prescribing heroin" if at the
same time you continue to accept the kind of language which he
is talking, which is, "We want to do this on cannabis so
the police can concentrate their resources on the more dangerous
drugs." He is getting it all wrong. I do not know whether
that is a clever political screen behind which he can do the right
thing by heroin users, or whether he believes it. I am worried
that if the Home Office continue to think in those terms, they
may introduce some amendment to the current prescription regime
which will be a repeat of what happened in the early 1970s. They
set up drug dependency units to give heroin to users, and then
the wind changed on policy and they introduced a rationing system,
so you could have the heroin but only for six weeks and in rapidly
reducing doses, which is what pushed people out into the black
market. Between 1926 and 1971 the black market was stable, then
217. Just on cannabis for the moment, so licensed
coffee shops, what about the harder forms of cannabisskunk,
superskunk, what have youwould you have that licensed through
coffee shops or would that be illegal, because there would still
be an element of a black market?
(Mr Kushlick) Again we need to look at what we do
with alcohol. We have low alcohol beers, 5 per cent, and then
we have spirits, and they are all marked, everybody knows what
they are drinking when they get it, the same thing needs to be
done here, so people know what they are buying. It is the same
sort of drug, it is just much more powerful.
218. Where do you think public opinion is on
all of this?
(Mr McNicholas) For me, I think Blunkett's announcement
really goes back to Ann Widdecombe's zero tolerance announcement
at the Tory Party Conference a couple of years ago and the ridicule
which ensued from that. The reason there was so much universal
derision was that a lot of the MPs at the Conference, a lot of
other people at the Conference, a lot of people in the media,
looked at that zero tolerance possibility and said, "That
means me"; a proportion would have said, "That means
me." Even if they were not a cannabis-user, they would have
looked at it and said, "My kids are at university or at college,
that probably means them."
219. That is helpful. I think people were worried
about criminal records for their children, yes. I would be interested
if any of you have any figures on public support for decriminalisation
or legalisation of cannabis.
(Mr Kushlick) We did an NOP poll last year and 50
per cent of people wanted some reform of the drug laws, mainly
on cannabis. It reflected a Home Office study from 1993 when 8
per cent of the population supported the legalisation of all drugs,
because 8 per cent supported legalisation of all drugs in the
NOP poll we ran. About half the population, it is generally accepted,
wants reform on cannabis. The other interesting thing here is
that public policy needs to be driven by what reduces harm and
what is in the best interests of the majority of the population,
and it may be that goes against public opinion. We currently have
a law on homosexuality which probably would not be supported by
the majority of the population and we have removed capital punishment.
What we are looking at here is leadership on the basis of what
works, rather than waiting for everybody to wave their hand and
say, "We want it now, we want it now."