"The 40-year regime introduced by the Misuse of Drugs Act has been characterised by a nonstop boom in the misuse of drugs. Surely it is time to rip it up and start again." Thus concludes the editorial in yesterday's British Observer newspaper.
The editorial accompanies a news story on Taking Drugs Seriously, a new report from the UK Drug Policy Commission, commissioned by the think tank Demos, which damns Britain's present drug laws as no longer "fit for purpose" and urges the adoption of consumer protection legislation in their place.
"Forty years ago, the Misuse of Drugs Act was passed in a world where new drugs came along every few years, not every few weeks," said Roger Howard, the chief executive of the commission. "The argument about whether to be tough or soft about drugs is increasingly redundant in the era of the internet and global trade; we have to think differently." The 149-page report, which has been welcomed by senior police officers, will be seen as a stern corrective to successive governments' thinking on drug control, which has heavily favoured prohibition.
The New Zealand Law Commission recently published its review of our own Misuse of Drugs Act, which addresses many of the same problems as the British report and -- albeit more cautiously -- comes to some of the same conclusions.
The news media discussion here has revolved principally about whether the Law Commission's proposal for a system of warnings before prosecution on minor personal use drug offences, and a distinction between commercial and "social" dealing -- as part of an effort to ensure that "the harms associated with the criminalisation of drug users are mitigated wherever possible by introducing a wider menu of legal responses to personal drug use offences" -- means "going soft" on drugs.
While the Bay of Plenty times demands that drugs be stamped out, and the law made, if anything, harsher, the Manawatu Standard says it's time to move on reform, and quickly. Police Association president Greg O'Connor insists that letting minor offenders off with a warning would encourage drug use. (Actually, he knows very well that police officers do that all the time. What he fears is the loss of a police discretionary ability that is sometimes abused.)
The New Zealand Herald looked a little deeper in noting in an editorial that the short-term effect of the review's recommendations would be that all "legal highs" would disappear from the shelves until -- if and when -- they satisfied an approval process managed by the Ministry of Health.
Given that we already do the same thing with "therapeutic substances" and supplements, there is a sound logic to this. But only if there is some credible path to approval for the least harmful substances -- which would require a striking change of official philosophy, one that acknowledged that it should not be an offence per se to sell, possess and use a consciousness-altering drug. (There is, of course, one very prominent consciousness-altering drug widely available for purchase -- alcohol -- and, as the Herald notes, it wouldn't exactly be a shoo-in for approval were it presented today.)
This passage in the editorial will jump out for students of the Herald's evolving editorial stance on drug issues (a group which may, I confess, consist solely of me):
But the principle remains that the law should not, without very good reason, restrict what people consume voluntarily at a risk to nobody but themselves.
It's not exactly the rip-it-up-and-start-again of the Observer editorial, but it's a long way from the raging editorials of the 1990s.
But I don't think anyone in the media has yet spotted a crucial technical change in the review. The Herald says this:
Party-pill manufacturers have shown themselves capable of substituting a pill's chemical composition with another as soon as the first is found harmful, and the substitute might be worse, as health authorities discovered when a product claiming to be a non-neurotoxic substitute for Ecstasy went on sale in 2005. It took several months to discover that the new ingredient was an analogue of an already prohibited Class C drug.
The substitute drug was called methylone and sold by Matt Bowden as Ease, and it was not, as far as anyone knows, "worse" than Ecstasy. Some evidence suggests it might even be considerably less harmful. But it was not banned because of any risk it might present -- only because it was eventually deemed to be somewhat similar to MDMA under the sweeping analogue provisions of the Misuse of Drugs Act. It was illegal because, well, it was illegal. Meanwhile, BZP, a drug that actually did send some users to emergency departments, was allowed to be widely sold basically because it wasn't already illegal.
Well, guess what? The Commission wants to fix that. It proposes a regime that would "replace the restricted substances regime and the controlled drug analogue provisions. Like HSNO, the regime would require manufacturers and importers of a new substance to obtain an approval for a substance before releasing it onto the market."
But the scenario noted by the Herald, whereby one banned substance is replaced in the market by a more harmful one, is well known to anyone who studies this policy area. At a global level, there has been some success in suppressing the production of MDMA by clamping down on its precursor chemicals, but that has not stopped the production and consumption of recreational pills. It just means the pills contain different, and usually nastier, things.
In Britain, all the talk is about mephedrone, an MDMA market substitute that has some unpleasant side effects, including vasoconstriction and headaches. Although David Farrier did a story for 3 News last year about mephedrone, and it has its own local information page, it's probably an under-reported story here. If you follow any bright young things via social media you might have noticed a degree of concern developing around its widespread use. We're not going to stop people wanting to get high and stay up late -- it might be an idea to ask how we can make it safer for them to do so.
Not everyone agrees of course. Greg O'Connor says that failing to nail young people with punitive sentences might would send the wrong message. Pauline Gardiner, writing for the New Zealand Centre for Political Research -- also known as the website that evidence forgot -- declares that harm reduction has gone quite far enough already and hasn't worked.
Those people get a pretty good run in the press, because their messages are simple and disturb no existing order. Advocates for reform have a tougher time making their arguments, and they don't have the benefit of programmes like TV3's remarkable Drug Bust series, in which assumptions are never questioned and the balance of harm is never assessed.
Detective Senior Sergeant Scott McGill, from New Zealand Police headquarters, is wheeled out periodically to utter statements like "We like to think we get a large proportion of the cannabis," when no one really thinks the "hundreds of plants" picked up in a day on the Operation Linda helicopter operation are a large proportion of anything.
At one point, the voiceover actually intones: "It's another victory in the war on drugs."
On one level, it's just another crime show in which the police have final editorial sign-off. But I don't think the people who make and broadcast Drug Bust really believe in what it says, or that the large majority of its audience does either. I wouldn't be surprised if the police offers who play their parts in it don't really have their hearts in some of the busts either. (By the way, TV3 -- your refusal to help us out with a copy of last week's programme won't stop us talking about it. It's just annoying.)
There are some better conversations going on -- we're trying to get permission to excerpt a forthcoming documentary that examines the case for the legislation and taxation of cannabis in New Zealand -- but there will need to be more talk if that most timid of species, our elected political class, is to get engaged. Even Russel Norman looked like he wanted to crawl under the chair when Guyon Espiner pressed him on Q+A on the Green Party's drug policy. He might have more firmly pointed out that Guyon didn't seem to grasp the difference between decriminalisation and legalisation of cannabis.
The Law Commission review does not propose legalisation or decriminalisation of presently banned substances; that would have embarrassed the government. But its recognition that drug harm includes the criminal penalties suffered by some users, its distinction between commercial and "social" dealing, its emphasis on the balance shifting towards the Ministry of Health and away from the criminal justice system, its ability to countenance medical marijuana and its willingness to foresee a world where some novel recreational drugs may be legal and regulated are all welcome.
Personally, I'm not an advocate for all-out legalisation. I think governments have a right to pick winners and losers in terms of public health impacts. It alarms me that Kronic et al can be sold without any restriction from suburban dairies and that the management of cannabis itself, which is used at some point by the majority of New Zealanders (two thirds of 20-24 year-old males report some use, as do more than half of those 45-50 years), is so clueless.
I think the forcible association of nearly all recreational substances with organised crime is dangerous. If you do manage to buy some MDMA (let alone cocaine), its production and distribution will have been a criminal enterprise -- but the yet-to-be-banned "new drug" is probably made in an ISO-compliant factory in India. Because of their legal status, and only because of that, they present two quite distinct moral profiles. I think the experience of Portugal -- where cannabis use increased after the decriminalisation of all drugs for personal use, but actual drug harms plummeted -- is worth scrutiny. The experience of Mexico's "Drug Wars" should be salutary.
We need to do better. And we should talk about that.
And talk about that we will: I'll be joined on Media7 this week by New Zealand Drug Foundation chief Ross Bell and visiting Mexican drug policy expert Aram Barrar, with one more to be confirmed.
If you'd like to come to our recording on Wednesday evening, we'll need you to present yourself at the Victoria Street entrance of TVNZ between 5.15 and 5.40 (it's a gate leading to a courtyard). As ever, do try and drop me an email to let me know you're coming.