Home Affairs Committee - Drugs: Breaking the CycleWritten evidence submitted Transform Drug Policy Foundation (DP127)

1. Introduction/Summary

1.1 The groundbreaking 2002 HASC drugs report1 made a number of important observations and recommendations that we hope this new inquiry will learn from and build upon. HASC 2002 rejected immediate moves towards legal regulation:

While acknowledging that there may come a day when the balance may tip in favour of legalising and regulating some types of presently illegal drugs, we decline to recommend this drastic step”

Yet, it did have the foresight to keep the issue on the table, recommending:

“that the Government initiates a discussion within the Commission on Narcotic Drugs of alternative ways—including the possibility of legalisation and regulation—to tackle the global drugs dilemma”

1.2 Much has changed in the ensuing decade to make this final recommendation more urgent than ever. The growing prison population; the deteriorating situations in key drug producer and transit regions such as Mexico, Afghanistan and West Africa; and the growing public support for more far reaching reforms (including from former UK drug ministers,2 prominent medical/health authorities,3 former and serving heads of state and numerous other public intellectuals,4 organisations and agencies5). The balance has shifted more decisively in favour of law reform. This Inquiry comes at an opportune moment. As foreseen, the day for meaningful Government action and leadership on exploring alternatives to prohibition has arrived.

2. International Drug Control: Free Markets, Prohibition and Effective Regulation

2.1 A spectrum of legal/policy frameworks exists for regulating production, supply and use of non-medical psychoactive drugs. Either end of this spectrum involves effectively unregulated markets; the criminal markets of a blanket prohibition at one end, legal/commercial free-markets at the other. Between these poles—both associated with high and avoidable social costs—exists a range of options for legally regulating different aspects of drug production, supply and use. Transform argues that given the reality of continuing high demand for drugs, and the evident resilience of criminal supply in meeting this demand, despite enforcement efforts, regulatory market models found in this central part of the spectrum will deliver the best outcomes. These outcomes should be measured in terms of minimising potential social and health harms (and creating positive policy opportunities) created by both drug use and drug markets. Contrary to the suggestion of such reform as “liberalisation” or “free market libertarianism”, drug market regulation is a pragmatic position involving rolling out of strict government control into a marketplace where currently there is none.

2.2 This thinking is illustrated by the graphic below. To put this in context we are currently witnessing tobacco control moving from the right of the x axis towards the centre, and conversely, illicit drug control also moving towards the centre, but from a starting point on the left. It is entirely consistent to support both of these trends, as Transform does, in pursuit of optimum models of drug regulation.

*Including market regulation models such as prescriptions and licensed retail. See Section 5.

3. The Historical Context: How we got Here

3.1 The 1961 UN Single Convention on Narcotic Drugs,—the established and continuing legal basis of UK and global prohibition—has two parallel functions. Alongside establishing a blanket global prohibition of some drugs for non-medical use, it also strictly regulates many of the same drugs for “scientific and medical use”. These parallel functions have in turn created parallel markets—one for medical drugs, effectively controlled and regulated by state and UN institutions, the other for non-medical drugs, controlled by organised criminals and paramilitaries.

3.2 The 1961 Convention describes non-medical drug use as a threat to the “health and welfare of mankind”, and a “serious evil” which the global community must “combat”6. Whilst nominally undertaken with the aim of reducing/eliminating drug availability and use, the political narrative is clearly framed as an emergency response to the drug “threat”, fuelling the crusading rhetoric of a “war” on drugs and the “securitisation”7 of the drugs issue then used to justify the extraordinary measures we now engage in.

3.3 The policy environment has changed dramatically since the 1940s and 50s when the 1961 convention was being drafted. Drug use has expanded exponentially, to hundreds of millions of users, with organised criminal networks now accruing hundreds of billions of pounds in untaxed profits from the unregulated market. Due to the associated corruption, crime and violence, drug-related organised crime was, by the 1980s, assessed as a threat to nation states. The world is now effectively engaged in two wars; the initial war on drug use, and now a second war on the organised crime profiting from the opportunities created by the first war.

3.4 Perhaps the starkest illustration of the harms created by prohibition comes from comparing two injecting heroin users—one in a criminal supply environment, the other in a legally prescribed and supervised medical environment.8 Globally, and even within individual countries, these two policy regimes exist in parallel9 so a real world harm comparison is possible.

The former:

Commits high volumes of property crime and/or street sex work to fund their habit.

Uses “street” heroin (of unknown strength and purity) with dirty, often shared needles in unsafe marginal environments.

Supplies are purchased from a criminal dealing/trafficking infrastructure that can be traced back to illicit production in Afghanistan.

They have HIV, HCV and a long—and growing—criminal record.

The latter:

Uses legally manufactured and prescribed pharmaceutical heroin of known strength and purity.

Uses clean injecting paraphernalia in a supervised quasi-clinical setting where they are in contact with health professionals on a daily basis.

There is no criminality, profiteering or violence involved at any stage of the drugs production supply or use.

4. Moving Forward: Counting the Costs of the War on Drugs and Exploring Alternatives

4.1 In 2008 the Executive Director of the UNODC noted how:

“the (global drug) control system and its application have had several unintended consequences”.

The first is the creation of:

“a huge criminal black market that thrives in order to get prohibited substances from producers to consumers”.

The second:

“ is what one night call policy displacement. Public health, which is clearly the first principle of drug control… was displaced into the background”.

The third is:

“often called the balloon effect because squeezing (by tighter controls) one place produces a swelling (namely an increase)in another place…” .

4.2 Considering these and other “unintended consequences” is of critical importance to the policy debate yet, whilst widely acknowledged, they are not systematically assessed and so largely remain outside of the high level political debate. As highlighted by a series UK Treasury, NAO, and internal Home Office studies, the Government has a history of inadequately evaluating the drug enforcement impacts in particular. Where more meaningful evaluations have been done publication has frequently been suppressed.10 Despite the obvious need, the Misuse of Drugs Act 1971 has yet to be subject to the scrutiny of an Impact Assessment—now standard practice for all new legislation. A growing group of concerned individuals and organisations has made a call for such an IA to be undertaken.11

4.3 Attempting to redress this imbalance at a global level, a broad international coalition of concerned NGOs, the Count the Costs initiative, is now calling on Governments and relevant UN agencies to meaningfully count the costs of the 50 years of the war on drugs and explore alternative approaches based on the best available evidence (www.countthecosts.org). The initiative has produced thematic briefings on key areas of concern and we urge the committee to consider these summaries of the wider unintended consequences of prohibition.12

Crime:13 The drugs/crime nexus continues to drive the policy agenda and it is worthy of note that it is the HASC (rather than, for example, the Health Select Committee) that is again enquiring into drug policy efficacy. Prohibition drives this confluence of drugs and crime in the first instance: The vast criminal opportunities created by rapidly expanding demand for prohibited goods, and acquisitive crime fuelled by the inflationary effects of drug control on prices.

Development and security:14 drug market related conflict and corruption is actively undermining development and security is some of the world’s most fragile and vulnerable regions.

Human Rights:15 drug control efforts result in serious human rights abuses around the world: torture and ill treatment by police, mass incarceration, executions, extrajudicial killings, arbitrary detention, and denial of basic health services.

Health:16 as well as the direct health harms associate with drug enforcement, criminalisation increase health harms associated with use, creates new harms associated with the violent illegal trade and creates political and practical obstacles to implementing effective health responses.

Environment:17 Deforestation and pollution in fragile ecosystems from unregulated illegal drug crop production.

5. Legalisation and Effective Regulation

Drug legalisation has to be addressed… the issue presented itself several times in the last 20, 30 years, and it is now a question that is on the table, and what is always important in political debates is to analyse the options present.

P Michael McKinley, US Ambassador to Colombia, 2010-present, El Pais,
5 December 2011

5.1 Whilst supporting the immediate decriminalisation of personal possession and use18 (as already implemented in more than 30 countries, and advocated by the ACMD,19 heads of international agencies including UNAIDS20 and the Global Fund21 and numerous other individuals and agencies22). Transform argue it is only the solution to a small part of the prohibition problem. A phased move towards responsible legal regulation of some or all markets for currently illegal drugs would not only reduce or eliminate the problems created or exacerbated by prohibition, but would create a dramatically improved environment for implementing effective responses to problematic use.

5.2 When HASC looked at the issue in 2002 there were no detailed descriptions of a how a regulated regime would work. Since then a number of publications have emerged into this void, including contributions from the King County Bar Association,23 and The Health Officers Council of British Colombia,24 and Transform’s 2009 publication After the War on Drugs: Blueprint for Regulation.25 The models proposed by Transform have since been explored in the British Medical Journal,26 and been endorsed by the BMJ editor27 and President of the Royal College of Physicians.28

5.3 Rather than a universal model, a flexible range of regulatory tools are presented with the more restrictive controls used for more risky products and less restrictive controls for lower risk products.

Options for control are explored for:

products (dose, preparation, price, and packaging);

vendors (licensing, vetting and training requirements, marketing and promotions);

outlets (location, outlet density, appearance);

who has access (age controls, licensed buyers, club membership schemes); and

where and when drugs can be consumed.

5.4 Options for regulating different drugs in different populations are then explored, suggesting regulatory models that may deliver the best outcomes. Five basic models for regulating drug availability are described:

Medical prescription model or supervised venues.

Specialist pharmacist retail model—potentially combined with named/licensed user access and rationing of volume of sales.

Licensed retailing—including tiers of regulation appropriate to product risk and local needs.

Licensed premises for sale and consumption.

Unlicensed sales.

5.5 Lessons are drawn from successes and failings with regulation of alcohol, tobacco, medical drugs and other risky products and activities—essentially applying well established regulatory and public health principles to a policy arena where they have been previously absent. Particular attention is given to how availability can be controlled (not increased) and the importance of controlling commercialisation and profit-seeking marketing and promotion that seek to increase or encourage increased consumption.

5.6 Any such moves require negotiating the substantial institutional and political obstacles presented by the international drug control system (the UN drug conventions).29 They would also need to be phased in cautiously over several years, with close evaluation and monitoring of effects and any unintended negative consequences.

6. Objections to Regulated Market Models?

6.1 The Government’s repeated casual dismissal of any real debate on alternatives to prohibition is often based on a wilful mischaracterisation of the reform arguments. Its position appears based on political considerations rather than an assessment of evidence on proposed reforms.

6.2 Standardised wording is now used in these dismissals;30 including that “Drugs are illegal because they are harmful”—they “destroy lives and cause untold misery to families and communities”; that any “liberalisation” would “send out the wrong message”; that reform proposals are “simplistic” and ignore the realities of drug related harm, and that legalisation would increase availability and use. These positions are almost the polar opposite of what is being proposed.

Regulation of drugs is proposed precisely because drugs are harmful; but they are even more so when supplied illegally and consumed clandestinely.

Much of the “untold misery” is the result of prohibition and the illegal trade—the government is conflating the drug harms with policy harms, then using it to justify the policies continuation.

Introducing legal regulation of markets is the opposite of “liberalisation”; what is proposed would bring strict government control into an arena where currently there is none.

Mass criminalisation and punitive enforcement should not be the basis for educating young people about sensible health and lifestyle choices—nor has it proven effective historically. Redirecting drug enforcement spending into proven public health interventions (education, prevention, harm reduction, treatment/recovery etc) will be far more likely to deliver the outcomes we all seek.

Suggesting law reform proposals are “simplistic” is a weak attempt to undermine a growing body of scholarship and research into effective policymaking.

Regulation allows for controlled rather than increased availability, where currently there is almost no control at all. The implication that drugs are unavailable now, and would be dramatically more available under proposed government regulation is a misrepresentation of both current realities and reform proposals.

6.3 It is clear that a policy and legal framework based on a set of agreed legal, pragmatic and public health principles31 would look very different to the one we have today. We must ask why prohibition continues when it has so evidently failed. Transform has identified four key factors that prevent us moving beyond entrenched war on drugs positions:

6.4 Ignorance—Most people know little about drugs—their use and misuse. Most are unaware that much of what we call the drug problem is the consequence of pursuing a prohibition based approach, and most are unaware of well developed alternatives to prohibition.

6.5 Fear—Many fail to question the entrenched threat-based narrative, and fear-based agenda that conflates drug harms and policy harms. Drug War propaganda has further fuelled these fears. Most governmental and state institutions are not designed for adaptation to fundamental change and therefore fear reform. Politicians fear the consequences of challenging the status quo, (particularly the media response) of being portrayed as weak, waving the white flag, going soft on crime etc.

6.6 Opportunism—Like alcohol Prohibition in the US, drugs prohibition has created a huge profit opportunity for organised crime. The vast sums of money involved in the illegal trade provide opportunities for corrupt individuals and organisations. The conflation of the problems created by prohibition, with the problems created by drug use, has created a propaganda opportunity for politicians—to portray themselves as tough on drugs and protectors of our youth, and provide a smokescreen for wider failings of social policy. At the same time, institutions fighting the war on drugs have benefitted from ever growing enforcement budgets.

6.7 Indifference—The war on drugs impacts most heavily upon the marginalised, disadvantaged and powerless—from the urban poor in Mexico and the US, to peasant farmers in Colombia and Afghanistan. Their lives (and deaths) are of little consequence to policy makers in comparison to their more pressing domestic and foreign policy priorities.

It’s a fundamental debate (legalisation and regulation) in which I think, first of all, you must allow a democratic plurality (of opinions)… You have to analyse carefully the pros and cons and the key arguments on both sides.

President Calderon of Mexico, 4 August 2010

7. Recommendations

7.1 Make a clear call for decriminalisation of possession of drugs for personal use.32

7.2 Restate the 2002 recommendation 24, and build on this by calling on the Government to show pro-active leadership in promoting the debate on alternatives to prohibition (including legalisation/regulation) in a range of international fora, including the Commission on Narcotic Drugs, but also a range of other relevant UN and international fora.

7.3 Call for the establishment of a joint select committee inquiry to conduct a cross departmental inquiry into alternatives to prohibition

7.4 Noting that the HASC in 2010 recommended a “a full and independent value–for–money assessment of the Misuse of Drugs Act 1971 and related legislation and policy”,33 call for a comprehensive independent Impact Assessment of UK drug policy and legislation, both domestic and international commitments. Such an IA should consider alternative approaches, including intensifying the war on drugs, maintaining the status quo, decriminalisation models, and legalisation/regulation models. This undertaking could potentially involve a series of parallel thematic Impact Assessments (ie human rights, health, development, crime etc).

7.5 Call for the UN conventions to be revised to remove the stranglehold on individual states exploring models of legal drug market regulation, allowing experimentation by expanding the menu of available options.

January 2012

1 Home Affairs Select Committee report: “The Government’s Drug Policy: is it working?” 9 May 2002.

2 Mo Mowlan—former Minister for the Cabinet Office with responsibility for drugs 1999–2001
www.guardian.co.uk/politics/2003/jan/09/drugsandalcohol.uk,
Bob Ainsworth MP—former Home Office Drugs minister and Secretary of State for Defence
http://transform-drugs.blogspot.com/2010/12/legalise-and-regulate-drugs-says-uks.html

3 Sir Ian Gilmore, former President of the Royal College of Physicians
http://transform-drugs.blogspot.com/2010/08/consider-drug-regulation-says-ex.html. The UN special rapporteur on the right to health http://transform-drugs.blogspot.com/2010/10/un-expert-calls-for-fundamental-shift.html and more recently the California Medical Association (re cannabis) www.cmanet.org/files/pdf/news/cma-cannabis-tac-white-paper-101411.pdf

4 See for example; Global Commission report www.globalcommissionondrugs.org/ and public letter of the Global Initiative for Drug Policy Reform http://reformdrugpolicy.com/partner/public-letter/

5 For a more complete list see: www.tdpf.org.uk/MediaNews_Reform_supporters.htm

6 Quotes from the convention preamble www.incb.org/pdf/e/conv/convention_1961_en.pdf

7 For more discussion see Kushlick, D, “International security and the global war on drugs: the tragic irony of drug securitisation”, 2010 www.tdpf.org.uk/Security%20and%20Drugs%20-%20Danny%20Kushlick.pdf

8 For a useful illustration see Csete, J. “From the Mountaintops: What the World Can Learn from Drug Policy Change in Switzerland” OSF 2010
www.soros.org/initiatives/drugpolicy/articles_publications/publications/csete-mountaintops-20101021/from-the-mountaintops-english-20110524.pdf

9 The legal medical opiate market accounts for around half of global opium production based on International Narcotics Control Board figures for legal opium and UNODC figures for illicit opium.

10 Transform’s submission to the 2010 drug strategy consultation (page 9) for details of the relevant reports including quotes and references.
www.tdpf.org.uk/TRANSFORM%20Drug%20strategy%20consultation%202010%20response.pdf

11 See Transform’s page on Impact Assessment www.tdpf.org.uk/Impactassessmentlead.htm and the briefing on Impact Assessment for drug policy produced by Transform and IDPC
www.tdpf.org.uk/IDPC%20Briefing_Impact%20Assessment_June%202010.pdf

12 Submitted as supplementary evidence.

13 www.countthecosts.org/sites/default/files/Crime-briefing.pdf

14 www.countthecosts.org/sites/default/files/Development_and_security_briefing.pdf

15 www.countthecosts.org/sites/default/files/Human_rights_briefing.pdf also note Transform’s endorsement of the submission from the International Center for Human rights and Drug policy.

16 Unpublished health briefing draft will be submitted separately—available online at
www.countthecosts.org/seven-costs/threatening-public-health-spreading-disease-and-death February 2012

17 www.countthecosts.org/sites/default/files/Environment-briefing.pdf

18 Note our endorsement of the submission from Release.

19 http://transform-drugs.blogspot.com/2011/10/acmd-repeats-call-for-decriminalisation.html

20 http://unaidstoday.org/?p=497

21 www.viennadeclaration.com/2010/06/why-we-should-all-support-the-vienna-declaration-2/

22 See for example: www.viennadeclaration.com/

23 King County Bar Association Drug Policy Project (2005). Effective drug control: toward a new legal Framework. State-level intervention as a workable alternative to the “war on drugs”. Seattle: King County Bar Association www.kcba.org/druglaw/pdf/EffectiveDrugControl.pdf

24 Health Officers Council of British Columbia (2005). A public health approach to drug control. Victoria: Health Officers Council of British Columbia www.cfdp.ca/bchoc.pdf

25 Rolles, S. “After the War on Drugs Blueprint for Regulation” 2009 Transform drug policy Foundation, online here www.tdpf.org.uk/blueprint%20download.htm

26 Rolles, S. “An Alternative to the War on Drugs” BMJ 2010;341:c 3360.
www.bmj.com/content/341/bmj.c3360.full

27 Godlee, F. “Ideology in the ascendant BMJ 2010;341:c 3802 www.bmj.com/content/341/bmj.c3802”

28 See http://transform-drugs.blogspot.com/2010/08/follow-up-prof-ian-gilmore-for-de.html for detail and media coverage.

29 For a detailed exploration of these challenges and ways forward see appendix 1 “reforming the UN drug control system” p 165 in Rolles, S. “After the war on drugs: Blueprint for regulation” Transform Drug Policy Foundation 2009.

30 Recent examples include rapid and cursory Government responses to the ACMD proposal for non-criminal sanctions for personal possession of drugs, and to the Global Commission on Drug Policy report cited in the committee inquiry terms of reference.

31 See Transform’s “After the War on Drugs; Tools for the Debate” p 20 for discussion on what such principles might be. For a more detailed discussion on this theme see Rolles, S chapter in “The Politics of Narcotic Drugs” Routledge 2010, titled “Principles for rational policy making”.

32 See submission from Release for more detail and discussion.

33 Home Affairs Select Committee report on the Cocaine Trade:
www.publications.parliament.uk/pa/cm200910/cmselect/cmhaff/74/7402.htm

Prepared 8th December 2012