Policy > General > Options for Control - Supply

Background briefing notes for the Transform 'options for control: drug supply' seminar, Feb 2004.

Introduction

Drug prohibition is in big trouble. The effects of the collision between increased illegal drug activity and outdated legislation have become little short of catastrophic. From Bogota to Brixton, prohibition has brought mayhem and misery to the most disadvantaged sections of society. Ill-health, crime, inter-state conflict, and massive social and financial costs have arisen from the continuation of the policy of drug criminalisation.

Terminating prohibition and replacing it with a system of legal regulation and control is gaining political currency very quickly. Barely a week goes by without a new voice being added to calls for reform. This seminar provides a closed forum, run under the Chatham House Rule (see below) for different views on the road to drug law reform to be exchanged and discussed.

The Chatham House Rule is used worldwide to facilitate both free speech and confidentiality at meetings. Participants are free to use the information or opinions disclosed to them, subject to two conditions:
(1) Neither the identity nor the affiliation of the speakers, nor that of any other participant at that meeting may be revealed.
(2) It may not be divulged that the information was received at that meeting

This is a groundbreaking opportunity to examine the possibilities for practical alternatives to prohibition, as opposed to the frequent legalisation/prohibition debates. We acknowledge that the seminar participants hold a range of views on the subject of drug law reform and that by no means all concur with that of Transform.

We hope, however, that participants will embrace this opportunity to bring their expertise and experience to the discussion and that this will contribute to constructing a more coherent and detailed model for legally regulated drug markets. This will in turn help inform and stimulate a wider public debate that will be of benefit to all.

2020 Vision

It is Transform’s belief that global prohibition has a limited shelf of life and is likely to end before the year 2020. We would like to make the most of the momentum for change by bringing together some of the leading figures in the field to discuss what a legally regulated global market might look like and to plot a course toward reform.

This is an opportunity to imagine a future where evidence and democratic structures provide the basis for global drugs regulation. This is your chance to contribute to a process that is likely to end in significantly benefiting the lives of millions.

We recognise that the time that we have available will probably prevent us from coming to detailed solid conclusions. However, we would like the day to inspire participants to begin a process of debate and policy development that Transform and others will help facilitate in the coming months and years.

Definitions

For the purposes of this briefing paper the following definitions will apply:

Prohibition:
The over arching global policy paradigm criminalising the production, supply and use of specific drugs. A policy based on eliminating drugs from society. The UN’s slogan is ‘A drug free world, we can do it!’ and aims to eliminate coca, opium and cannabis by 2008.

Decriminalisation:
The removal of criminal sanctions (through either legislative change or tolerant policing) on production, supply or use of some or all currently illegal drugs. (eg. the policies of Holland, Portugal, Switzerland and most recently Russia)

Legalisation:
The termination of the global conventions criminalising production, supply and use, allowing freedom for domestic governments to legally control and regulate (note: this can include the criminalisation of some drug-related activities).

Historical and political context

Drug policy and legislative developments have been heavily influenced by a variety of religious movements and moral crusades, in a close echo of past legislation around sexual behaviour. The association of drugs with a range of emotive political issues - from race and immigration in the early 20th century, to populist law and order crusades in the 1980s and 90s has further distorted drug legislation. The most recent manifestation of this trend has been the merging rhetoric of the war on drugs and the war on terrorism.

The result has been a debate predominantly characterised by moral absolutes: drugs are an ‘evil’ against which ‘war’ must be waged. In this context almost any policies, however punitive or extreme, have been politically justifiable under the banner of the drug war, regardless of evidence of effectiveness. Conversely, movement away from the basic tenets of prohibition have been associated with immorality, weakness, or surrender.

The prohibitionist paradigm has its spiritual home in the US, and it is the overarching influence of the world’s last superpower on the international stage, in particular the UN drug agencies, that has promoted and maintained prohibition globally in the post war era. After a century of prohibitionist legislation and rhetoric we are in the position that (almost) every country is now signatory to the three UN drug conventions (1961, 1971, 1988), enshrining the prohibition of (and criminal penalties for) the production, supply and use of certain drugs into domestic law.

In the light of the apparent worldwide consensus behind prohibition it has taken a quite spectacular failure of the policy (see Prohibition Report p.10-11 in TDPF’s annual report) to provoke even the most modest questioning of it basic tenets. It has been the continuing failure to stem the rise in the availability of drugs, the rise in use and misuse of drugs, and the growing problems associated with the lucrative and violent illegal drugs markets that has forced drug policy and law reform into the political arena.

Growing calls for reform

In recent years there has been a growing number of critics of drug policy failings. In the UK alone there have been substantial and sophisticated critiques, including:

 The recent No 10 Strategy Unit drugs review – an unpublished document that (according to The Independent) showed that supply side enforcement interventions are ineffectual or counterproductive. Its ‘blue sky’ recommendations called for heroin use to be made an offence and an increase in coerced treatment for drug using offenders.

 The Home Affairs Select Committee inquiry of 2002 called on the UK Government to initiate a discussion, at UN level, around the possibility of legalising drugs.

 The recently revamped Lib Dems drug policy contains a fierce critique of prohibition.

 The Police Foundation Inquiry (2000) thrust drug law reform into the spotlight when it called for the reclassification of cannabis and ecstasy.

 In 1997 Demos published a manifesto for change (edited by Geoff Mulgan, now of the Prime Minister’s Strategy Unit) called for the legalisation of all drugs.

 The Foreign Policy Centre, The Centre for Reform, the Social Market Foundation, and Transform have all produced publications calling for reform of drug policy and legislation.

 The recent Nacro drugs report suggested that the drugs war had been lost.

 The Scottish Police Federation voted unanimously for a Royal Commission to overhaul the drug laws.

 The National Association of Probation Officers, Liberty, Drugscope and many more have called for decriminalisation or legalisation of drugs.

In 2003 leaders of all UN states gathered in Vienna to discuss progress at the half way stage of the UN’s ten year drug control strategy, devised in New York in 1998 under the banner “A drug free world, we can do it!”. There was an unprecedented level of NGO activity at this event, both grass roots campaigns, and well-funded high level lobbying work. The dominant call made by both groups was that UN drug control and enforcement programs should be independently evaluated to establish their effectiveness on key indicators, including public health, crime, and social and economic development (in particular of key producer and transit countries).

The failure of these lobbying and campaigning activities to achieve any significant policy shift ( the meeting essentially reiterated UN’s commitment to the enforcement oriented prohibitionist approach) underlined just how entrenched ‘war on drugs’ status quo has become, and the magnitude of the task facing those advocating reform.

Legalisation and incrementalism

There is a growing consensus that current drug policy is failing to achieve its stated goals but considerably less agreement on how to address these failings and move forward. Excluding the dwindling band of advocates for intensifying the drug war, there appear to be three broad schools of thought;

1. Maintain the status quo
The Government position as outlined in the 1997 ten-year drug strategy (updated in 2002). There have been new resources for drug treatment and harm reduction, and some minor changes to legislation including the recent reclassification of cannabis. A resolute commitment to prohibition is maintained: The UK Updated Drugs Strategy 2002 says: "...we will prevent young people from using drugs by maintaining prohibition which deters use…".

2. Short and medium term reform - Incremental change within the prohibitionist legal framework.
This position (generally) calls for a less punitive approach to drug law enforcement - including non-arrest or prosecution for personal possession, heroin prescribing, and ecstasy testing. It does not fundamentally challenge prohibition, but seeks to achieve better outcomes within it.

3. Long term reform - replacing prohibition with legally regulated drug production and supply
This position maintains that reforms within prohibition are largely mitigating against harms created by prohibition and do not present a viable long term solution. That only the legalisation and subsequent regulation of production supply and use of drugs will eliminate the problems of illegal markets and create an environment in which drug use and misuse can be effectively managed and the harm caused to individuals and communities minimised.

Debate around legalisation and regulation has gained considerable currency in the past five years. However, whilst the ranks of public figures, policy makers, journalists, and NGOs considering legalisation is growing rapidly, it remains a contentious issue and a political minefield for many individuals and organisations in the public sphere.

There are also considerable differences of opinion within the legalisation debate as to how a legally regulated drug markets should operate, and how they can be realised. The result is that for a policy position that is being so widely debated, there is relatively little solid work being done on it, leaving it vulnerable to attack and undermining prospects for meaningful policy change. The Strategy Unit report (mentioned above) is a prime example. It showed that supply side interventions don’t work and that levels of misuse are rising. Rather than even contemplate evaluating the effectiveness of prohibition, it called for draconian demand-side measures.

Weighing up the options

Transform uses a simple analytical framework for evaluating different models (that will form the basis for the morning’s discussions):

1. What are the key areas of concern that drug policy should be addressing?

2. What are the options for the regulation and control of production and supply for different drugs?

3. Which options will achieve the best outcomes in key areas of concern?

Establishing answers to these questions creates the basis on which we can begin to make informed judgements as to which will be the best regulatory framework for managing the production and supply of a particular drug in a given locality.

Key areas to be addressed

Transform suggest that an effective drug policy would:

1. Reduce drug related ill health

2. Reduce drug related crime and conflict

3. Increase democratic regulation and control of the drugs trade

4. Extend provision of honest and effective drug education and information

5. Maximise effectiveness of drug-related expenditure and taxation of drug trade

6. Protect civil rights of drug users and non-users

7. Encourage inclusion of civil society in drug policy formation

Some key issues for consideration in options for control modelling:

Pharmaceutical industry:

The possibility of drug production being taken over by large pharmaceutical companies raises significant concerns over how such systems may operate. The Pharmaceutical industry is already the focus of considerable criticism for some of its ethical, business and marketing practices.

Development issues:

Illegal drug production is a major source of revenue for key producer countries and changes in international regulation will have significant impacts on social and economic infrastructure as prices respond to new market conditions or production shifts to new regions. It is important that the impacts on developing countries are not overlooked as developed countries begin to consider reform.

Price controls:

The ability for government to influence drug prices is a key reason for bringing drug production and supply under legal regulation. Price controls allow profit margins to be established that will undercut illegal profits and reduce the incentive for criminal entrepreneurs, as well as determining tax revenues. The necessity to undercut illegal market prices, however, needs to be balanced against potential impact of lower prices on demand.

Cultivation for personal use:

UK law currently allows individuals to brew alcohol for their own use but not to distil it. Tobacco growers must seek a license. Participants should consider whether individuals growing cannabis, coca, mushrooms or opium for their own use should be subject to licensing regulations.

Options for the regulation and control of production and supply of different drugs.

1. Drug production

Transform has divided existing models of drug production into two broad categories; pharmaceutical drugs and non-pharmaceutical drugs. What follows is by no means an exhaustive list but aims to highlight some of the existing options and stimulate thought on potential new models.

i) Pharmaceutical drugs

Example: Diamorphine (heroin)
Raw material (poppies) grown in Tasmania, imported to UK and refined into medical grade opiates. A similar model exists for medical cocaine. Key legislation includes the Medicines Act 1968, the Misuse of Drugs Act 1971, and the UN drug conventions. There are a range of regulatory bodies overseeing different aspects of legal heroin production including:
 Medicines and Healthcare products Regulatory Agency (MHRA)
 Committee on safety of Medicines (Advises the UK Licensing Authority)
 UK Licensing Authority (licenses medicines through the MHRA)
 European Medicines Evaluation Agency, (runs in parallel with UK agencies)
 UN drug agencies (International Narcotics Control Board)

ii) Non- pharmaceutical drugs

Alcohol
Produced/imported under UK and international licensing agreements.
Personal domestic production (home brewing) – unlicensed.

Tobacco
Produced/imported under licence - regulatory system differs from alcohol or caffeine products in that it is not a food or beverage.
Personal production - home growing – technically licensed - unlicensed in practice.

Caffeine
Not subject to any drug legislation, sold over the counter (coffee, energy drinks) and subject only to food and drink legislation.

iii) Unlicensed production

A number of substances in the UK have no regulation and control whatsoever over their production. These include magic mushrooms (imported from Holland), khat (imported from Yemen), Salvia Divinorum (grown in the UK), as well as some psychoactive ‘herbal remedies’ and ‘food supplements’. There is legislation pending at national and international level to bring some of these products under medical or recreational drug legislation. Some substances that are psychoactive are not covered under drug legislation – solvents, propellants etc

2. Drug supply

Transform has identified five existing models for the distribution of drugs. Below this are some ideas for new supply models.

i) Prescription
The basic model for prescription drugs (e.g. tranquillisers) is that they are prescribed by a licensed doctor and dispensed by licensed pharmacist from pharmacies. Injectable diamorphine follows a similar model but can only be prescribed by a specialist doctor requiring a licence from the home office. In Switzerland dispensing and injecting of diamorphine take place under supervision in specialised venues. Key legislation includes the Misuse of Drugs Act and the Medicines Act, and key regulatory bodies are the Home Office and the General Medical Council who oversee prescribers.

ii) Pharmacy sales
Sales from behind the counter made by qualified pharmacist, responsible for restricting sales on the basis of age, quantity being purchased and concerns regarding misuse. Also gives safety advice and health warnings. Examples include codeine preparations and kaolin and morphine.

iii) Licensed sales
For off licenses and tobacconists controls exist over named licensee, responsible for restricting sales on the basis of age (16 for tobacco, 18 for alcohol) and to specified opening hours. Array of legislation of overseen by local councils who act as licensing authority.

iv) Licensed premises for sale and use
The obvious model in this case is public houses, having strict controls over the licensee, who can restrict sales on the basis of age, intoxication of purchaser and hours of opening. There is a confusing array of over 23 statutes relating to the supply and sale of alcohol dating back to the Disorderly House Act, 1751. Many now being replaced by the Alcohol and Licensing Act 2003 (rolled out over the next 3 years) that also covers licensed clubs and entertainment venues. Local councils serve as licensing authority.

v) Unlicensed sales
For certain substances such as fresh magic mushrooms, coffee, nitrous oxide, nutmeg, khat and salvia divinorum, there are no significant controls at point of purchase. Food and drink products are covered by basic legislation including the Trades Description Act and Shops Act. Mushroom vendors currently operating a voluntary code of practice.

What other options exist for drug supply?

It may be that one of these five options is the most appropriate for most drugs. However it is worth speculating about some new models that could potentially be established but that do not exist at present. Below are a few possible ideas aimed to stimulate such speculation:

i) Druggists
A druggist (or other appropriate name) would be a new profession, in effect a specialist pharmacist. They would be trained, qualified and licensed to vend specified drugs for recreational users, adhering to strict legal regulations, such as age restrictions. They would also be trained to give safety information and health advice regarding drug use and other drug services. Vending could potentially take place from existing pharmacy outlets or new, dedicated druggist outlets.

ii) Licensed users / membership based licensed premises
This would be a similar model to licensed premises but with an extra tear of regulation in that entry, drug purchase and drug consumption would require membership, which could have various conditions and restrictions attached. This is a similar model, in some respects, to existing casino licensing in the UK.

A roadmap for reform? Afternnon discussion topics

Prohibition – strengths and weaknesses
In order to campaign for reform we need to know what we are up against. We will explore the strengths and weaknesses of prohibition and the structures that support it.

Prohibition’s greatest strength lies in its level of support – from the general public to senior politicians and public institutions. It is enormously well funded.

Prohibition’s significant weakness is its almost total lack of success. The amount of evidence pointing to its ineffectiveness is overwhelming.

A long term road map for reform
This part of the day will reverse engineer a plan for reform with the goal of regulated control by 2020.

Questions include:
 What can be achieved domestically?
 What needs to be dealt with globally?
 Which audiences need to be lobbied – and how?
Politicians, media, academics, NGOs, professional bodies, judiciary, police etc.
 What is a realistic timeline for reforms to take place?

Ideas for next steps

There are already a number of initiatives and organisations campaigning for reform:

 Forward thinking on drugs
http://www.forward-thinking-on-drugs.org/

 Senlis Council
http://www.senliscouncil.net/

 Transnational Institute - drugs and democracy project
http://www.tni.org/drugs/index.htm

 European NGO Council on Drugs and Development
http://www.encod.org/

 Transform Drug Policy Foundation
http://www.tdpf.org.uk

 Drugscope
http://www.drugscope.org.uk/

 Drug Policy Alliance
http://www.drugpolicy.org/homepage.cfm

 Religious leaders for a more just and compassionate drug policy
http://www.november.org/razorwire/rzold/12/1206.html

 Law enforcement against prohibition
http://www.leap.cc/