The state of play for drug law reform; ideas for the next phase
By Darryl Bickler,
solicitor, Drug Equality Alliance
NOWADAYS there is willingness for the medical use of cannabis to be on the debating table in the media and even the BBC. People nowadays talk about regulation of some drugs (actually they mean the users of some drugs) as a possible way of reducing harms and attendant costs. Yet the ending of the stigmatization of everyday cannabis users seems as far away as ever – every day there is a hostile press linking cannabis use to some terrible outcome, making adverse connections with criminality, irresponsibility and danger.
Every day police break into the private homes of peaceful cannabis growers and turn their lives upside down before reporting the person to their employer, local councils and housing associations, bringing chaos to previously quiet and stable family lives. And still every very day the courts affirm this outrage, imposing dehumanising punishments, enforcing heavy fines and costs orders and further demonising folk who just want to relax with their medicinal herbs in peace.
Seemingly nobody will stand up for the rights of some kinds of drug users. We might expect our lawyers to be concerned about civil liberties and disproportionate punishments, but now you will never find one who will fight it, they will tell you to plead guilty, maybe tell the court that you are sorry, in pain, naive, but they won’t say something is wrong, not any more – and yet it is wrong, patently wrong. I was personally told by senior judges that if I ever argue for recognition of the human rights of drug using defendants, or complain of misadministration by the government again, that I will be held personally responsible for all the court and prosecution costs. Not even organisations like Liberty and Release offer any hope of challenging any of this.
Seemingly the notion of the separation of powers between government and the courts, and the aspiration for evolving recognition of difference and human rights has evaporated. Anyone who has seen a judge in action in a drugs case will tell you, as a user of some drugs you have no rights, no claim to autonomy over your own body, no right to medical use, no claim at all for fairness or equal treatment with even the worst of alcohol abusers, and no parity with tobacco smokers – you are going to be processed, criminalised and patronised, so much for most lawyers.
Whether you are imprisoned or forced into drug awareness counselling, nothing is getting better, you are to be controlled, you are a naughty child to be chastised, and this is where we are after decades of campaigning. Those who are not caught are subjected to suspicion, opprobrium and exclusion. And don’t be fooled by the great and the good signing petitions; it is getting worse, soon there will be drug testing everywhere, mark my words. Companies are getting ready to coin in on cheap testing for drugs at the police station, at the roadside, and soon in schools, workplaces, benefit agencies – it’s their secret weapon in this war, to step up the anti considerably. Not everyone will be prosecuted, that would be too expensive, but they will be dealt with by other behaviour modifying interventions, information will be passed between busybody judgmental agencies, you will not have any privacy over your body chemistry, the dystopian world of body surveillance is coming, it may be punishment light, but its insidious tentacles will reach much further.
So why is this happening, and what can we do? To be blunt we are creating certain rods for our own backs; we want to find the easiest way into this debate and understandably so. We have been marginalised for years, and the fact that people will now listen to the stories of medical cannabis users perhaps seems a great step forwards. I think we must examine the form of campaigning closely, what does it represent, how can it be made more potent. The debate seems focussed on harm reduction, and this is of course a laudable goal, it is in fact the whole point of the legislation, to address harms, in particular social harms. If there are harms to health then these do impact on the wider level, but we should be wary of entering into a debate about health benefits and risks, it is often a no-win situation, the law doesn’t formally recognise benefits, its’ legitimate concern is only social harm.
But is avoiding the negative consequences of prohibition really the way forwards? And even when certain drug use is clearly relatively safer than drinking or other leisure activities, with drugs someone will always find some study and say that its worth banning a whole range of substances, this because of the risk that even one young person will otherwise come to grief. Obviously this principle isn’t being applied to anyone other than drug users, or rather some drug users. Nobody is trying to stop drinking, and nobody suggests we should stop adventure sports, horse riding or even a diet of Big Macs and Coke. Yet the drug misuse law in the UK is not really a health measures Act; it is more a public order Act. The debate about harms and benefits must be made within the context of what the law actually mandates, we should not be concerned with absolute safety anyway, what we must aspire to is equality of treatment with other drug users – if the government can advise us how much alcohol we should drink, then there is no logical reason for not advising truthfully on cannabis or other drugs.
Why is there only the focus on dour harm prevention, if you go through the hundreds of submissions to the Home Affairs Committee drug inquiry you will read hundreds of copycat submissions about the paradox of consequences of prohibition, but the key point is missing, always missing. The key point is the human being, what does it mean to be human today, what right do you have to access the mind states drugs enable? What choice do you have over your own body chemistry and your own consciousness? Nobody is asking because for some reason this subject is not seen in terms of liberty in the slightest, every debate is about some people begging for their physical need for a drug, or how it will do more harm than good by trying to stop them.
If the law was administered rationally and according to purpose there would be a rush to address the deluge of health and social harms caused by alcohol / tobacco misuse. Yet we all know that for some dubious reason the persons concerned with dealing some dangerous drugs have been given a privileged drug dealing status, it’s not written in the law, it’s just a very curious, unequal and harmful policy governments adopt. So what if anything is wrong with arguing for benefits from cannabis for example? Well as far as presenting a case for people interested in cannabis, nothing. But we must also be aware of creating new divisions where we need a broad base of support and recognition of freedoms. Cognitive liberty unites, it is a true right, entitlements for the needy are divisive, of course people should have access if they need it, but liberty is not a finite resource, we do not need to overly ration it except with reference to actual harms caused by the irresponsible misuse of some drugs.
Whenever we make the case for special cases we necessarily create new lines in the sand, new rules that we actually don’t need or want. What needs to be identified is the essential quality of liberty that applies to all, it is a demand for a right for privacy or non-intervention until for whatever reason, we would sensibly agree that intervention by police, or by doctors, social workers or whoever is justified. When would it be justified? When the people concerned are causing real harms through their drug use, not harms caused by policy (e.g. being involved with a criminal enterprise) as those follow as a paradox of consequences of poor regulation, but if there are harms caused by the core activity of the drug itself, then greater regulation is appropriate. The key word is regulation, regulation of the (mis)user. It’s better to think of the law as a tool that regulates people with respect to drugs, not something that regulates drugs. We can address the problem people driving whilst impaired whilst respecting people’s rights to use drugs just as we do with alcohol for example.
The problem stems from this contemporary illusion that drugs are legal or illegal, it’s not actually right, it’s the person who acts unlawfully by being in possession, or cultivating or supplying the so-called ‘controlled drug’ for example. Anti-social activities associated with so-called legal drugs are not supposed to exempt from the drug misuse law, the law is meant to be outcome-based and neutral.
All these activities with all drugs can be regulated to address antisocial forms of conduct, but as soon as we imagine that the drug is illegal in and of itself, then that becomes impossible, as it is, supposedly, indivisibly illegal no matter what. This is one of the things that went wrong with drug policy, it works in an on/off fashion – no in betweens, no differentiation between peaceful use and misuse, this because we let the government get away with the absurdity that cannabis or indeed any drug is or ever could be illegal. It is not, it cannot be, it is we who are acting illegally with it. There is a difference, this criminalisation of all activities with some drugs is a policy choice, a bizarre policy that makes us unlawful no matter what outcome there is; and this is inconsistent with the purpose of the law – it is the fiction that leads to the dismissal of all human rights claims. We have no human rights because we imagine that the subject of regulation is an object, when in fact, it is us.
We must start from the premise that as adults we should enjoy some basic peaceful rights. Whilst I support NORML UK, I have to say that whatever interests we have, that we must recognise that a cannabis specific campaign in one sense starts from the wrong end. The problems we experience are because the world and his dog wrongly imagine that we are controlling drugs; we are controlling people, and what we want to rescue is the notion of a sensible threshold of autonomy for persons acting peacefully. This is never specific to an object or specific drug. It is fine to look at policy with respect to cannabis, but please be aware that the aim is to have peaceful adults left alone. Really it starts with the person, his rights, not a discussion just about cannabis. Yes we will end up in the same place with a rational administration over each and every type of drug user, but if it’s possible to act peacefully and responsibly with any particular substance, then we must express it like this, peaceful persons retain their privacy. It is not it that is capable of being legalized or de-criminalised, it is us. We want to be freed with respect to it, not it with respect to us.
Let’s be clear there is no war on drugs, no illicit drugs and no illegal drugs either! We should desist from using these terms because they are fictions created by the prohibitionist paradigm as forms of deception about the true nature of control. We might contemplate a ‘war’ targeting the worst outcomes of drug misuse, and develop best policies concerning harm reduction and prevention. Yet we ended up in this mess by failing to differentiate between good, acceptable and bad outcomes for some drug users. In the resultant artificial divide between different classes of persons using different drugs, some people are awarded privileged property rights, and others are denied their rights absolutely. This is maintained via the abuse of power inherent within the misadministration of outcome-based neutral primary law, creating a prohibition mandate that completely fails to control any form of drug misuse.
Darryl Bickler is a solicitor and a founding member of the Drug Equality Alliance.