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.

DEA - Drug Equality Alliance

Drug Equality Alliance

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.


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10 Responses to “The state of play for drug law reform; ideas for the next phase”

  1. Kevin John BraidAugust 18, 2012 at 12:58 am #

    good stuff

  2. Chris Bovey on FacebookAugust 18, 2012 at 1:07 am #

    Excellent article Darryl, thank you!

  3. Commonly Known As ZacAugust 18, 2012 at 1:01 pm #

    the reason why they will not legalise drugs is because they the gov’t
    will lose out on their way of mass controlling people, the real reason
    is because of control, it boils down to controlling everyone else
    because they say so. Stuff what they say, so when I go to a rich mans
    house and take drugs maybe I should take photos of the rich man taking
    drugs, oh what if that man is the police commissioner for englands
    police, oooh I might get my head blown off to keep his drug taking quiet
    and from the public eye because that is all it is, the fact that the
    gov’t does not mind killing to keep its secrets but does not like it
    when its people are killed to keep secrets.

    • Commonly Known As ZacAugust 18, 2012 at 1:06 pm #

      well they should take a rule out of their own BLACK BOOK…… eye
      for an eye, and a life for a life……dont like it gov’t, your not as
      big as you think you are because if you think for one minute that your
      names and addresses where in the public lime light, then I guess your
      people would disapear as quick as petrol in the wind does.

      Do not fool yourselves, by controlling the masses you yourselves are
      controlled, the 1 percent gets what it wants because WE ALLOW YOU TO,
      plain and simple, you are not the controllers, WE CONTROL YOU, are we
      making up laws to put on the people, are we fussed and paranoid about
      you coming to take our things? NO, YOU LOT ARE THE PARANOID IDIOTS WHO

      One day you might actually wake up to the realization that you are the SLAVE and WE are YOUR masters.

      But then I am perfectly happy to leave you thinking you are in control since it suits our AGENDA’s perfectly.

    • Darryl BicklerAugust 18, 2012 at 4:51 pm #

      I did say that one cannot legalise drugs. This idea will always fall on deaf is, it is the reverse of reality.

  4. normlukAugust 20, 2012 at 12:42 am #

    While we welcome comments on Jeff’s article or indeed criticisms or people who disagree with it, can we keep the debate civil and not use the comments page to mock people or stir augments with other groups NORML UK has no interest in.

  5. thedoobiesnatcherAugust 20, 2012 at 5:21 pm #

    So basically you are saying peaceful people should be left alone to do what they want as long as nobody is being harmed. Its like the old saying ‘what goes on behind closed doors’. I agree that sometimes I think the whole argument of legalising cannabis or drugs in general is set out to fail because they are just substances, it is peoples behaviour that end up causing problems not the drug. I’m sure there are people that use hard rugs and never cause any problems to them selves or to other people because they keep them selves in check and don’t let addiction take a grip or they can afford what they are using i.e. not having to steal rob or kill anyone. I also think it has a lot to do with social class if some very wealthy person gets caught snorting a line of coke more often or not they seem to get away with it (or have to pay a fine). But if you get caught sometimes even with a small amount of cannabis and you are young or ‘working class’ they throw the book at you and ruin your life even if it’s only a caution it still means its a criminal record.

  6. SteveSarichNovember 22, 2012 at 8:20 am #

    Brilliant article. We should talk some time.
    (But NORML is the US may not agree with you)

    Steve Sarich
    Cannabis Action Coalition

  7. Michael MurrayNovember 25, 2012 at 12:09 am #

    This is childish in the extreme

    “completely fails to control any form of drug misuse.”
    Do you actually mean “fail to completely control” ? No law is completely effective – does that mean they should be abandoned too?

    “denied their rights absolutely” – again hysterical fabrications.

    And please – look up what “prohibition ” actually was if you are going to be so lazy as to use the commonly accepted drug promoting definition . It was a national ban on the sale, manufacture, and transportation of alcohol

    • Michael MurrayNovember 25, 2012 at 7:47 am #

      It did not prevent the personal manufacture of alcohol nor the consumption. It also affected a substance legal in either side of two adjacent countries. This was entirely different to legalisaing a substance which is restricted in virtually all countries Crime did not significantly change. Consumption decreased as did suicide , domestic violence and medical problems from alcohol. I know it bursts the bubble of a mainly unthinking catch phrased campaign .

      It just adds to the shallowness of the campaign but having a supposed professional using the same jingos with a smattering of pseudo intellectualism rebranding unsubstantiated claims because he is paid to.

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