Concerns about Legal Regulation

Click the questions below to reveal detail answers.

50 years of prohibition has failed to prevent a dramatic rise in the use of drugs, despite ever growing resources spent on enforcement. Research shows that criminalisation does not significantly deter use – the key factors that do influence drug use are social, economic and cultural. Legal market regulation would mean controlled, not increased, availability, and through such regulation the harms associated with both drug use and the drug trade would fall significantly.

Criminalisation does not deter use

  • Research comparing different approaches from very harsh to decriminalising possession of all drugs (including by the World Health Organization), shows that criminalisation has little impact on levels of use. Cannabis use in the Netherlands, for example, is no higher than in neighbouring countries.
  • There appears to be no relationship between the severity of a country's cannabis laws and its levels of cannabis use (see graph)
  • When Portugal decriminalised possession of all drugs in 2001, prohibitionists predicted drug use would go through the roof, and the country would be swamped by drug tourists. Neither happened.

Availability will be controlled

  • Even enforcement 'success' only has localised and temporary impacts, at best displacing criminal markets to new areas: decades of experience show that it cannot eradicate them.
  • Regulation means controlled availability, not free-availability, with tight controls on what can be sold, who can buy, and where and when different drugs can be sold and consumed. That is why in many states in the US, children find it easier to buy cannabis than beer1, and tobacco use has dramatically decreased in many countries without criminalising anyone, using health education combined with regulatory measures which are unavailable in a criminal market.
  • Policy should seek to reduce overall social and health harms associated with drug production supply and use. A narrow preoccupation with simply reducing total use can be counterproductive – especially given that most use is non-problematic.

1 National Center on Addiction and Substance Abuse at Columbia University (2009) 'National Survey of American Attitudes on Substance Abuse XIV: Teens and Parents', p. 13.

Supporting legalisation and regulation means giving up on the fantasy that prohibition can achieve its objective of eliminating the production, supply and use of certain psychoactive substances. It means giving up on a failed ideological, criminal justice-led policy and moving to a rational evidence-led public health policy, enabling us to minimise the harm caused by drugs.

Regulation offers the best policy outcomes on all key indicators: to reduce drug-related harm, to protect children and other vulnerable people from dangerous drugs, to reduce drug-related crime, and to spend our limited resources in the most cost-effective manner. It is not giving up: it is removing an obstacle that is preventing us from even getting started.

Furthermore, the idea that legal regulation is essentially the same as admitting defeat in controlling drug use is based on a confused understanding of the role of criminal law. The law exists to prevent and punish crimes, rather than to educate, ‘send messages’ or tutor on appropriate personal conduct. This is not to say that such goals are undesirable, only that criminal sanctions are not the tool for achieving them. A strong argument can be made that the law is both ineffective at the task – one far better achieved through public health and education interventions – as well as disproportionate: the punishments far outweigh the harms they are intended to deter.

We have a choice: the drug trade can be controlled by cartels or by organisations regulated by government. Unlike with tobacco and alcohol, new legal drug markets would be a blank slate, so we can introduce strict legal regulatory frameworks that function in the public’s best interest from the start. Options include strict regulation of commercial markets, or even having production or supply entirely controlled by non-profit or state-run enterprises.

For all the legitimate criticisms of some legal commercial companies, unlike organised crime they and their products are regulated by government bodies, pay taxes, are answerable to the law, unions and consumer groups, and do not use violence in their daily business dealings.

We can learn from the mistakes of alcohol and tobacco regulation. Levels of alcohol and tobacco use are the result of centuries of commercialised promotion, often in largely unregulated markets. With currently illegal drugs we can put in place the optimal regulatory framework from the start, controlling all aspects of the market.

Spectrum of drug policy options and their likely effects

'Drug tourism' can only occur if a country takes unilateral action in moving to a system of legal drug regulation. If other countries were to also legally regulate their drug markets, it would not be an issue.

Where countries have begun to reform their drug laws, the impact of people travelling to these countries has been marginal, and drug tourism, where it does occur, is likely to be very small scale and highly localised. Drugs are readily available on the illegal market throughout the Western world and there is no need to travel abroad to buy them.

The majority of any drug tourism is likely to be occasional recreational users (e.g. weekend trips to Amsterdam), rather than hardcore problematic users, who are more likely to struggle to finance international travel. Concerns can also be reduced by restricting sales to local residents.

Finally, it is important to consider that drug tourism need not always be a terrible thing – wine tours of the Rhine valley or visiting whisky distilleries in the Scottish highlands are examples of drug tourism that are generally welcomed and are positive for local economies. Indeed, the authorities in Amsterdam have successfully argued for their 'coffee shops' to continue to be allowed to sell cannabis to tourists precisely because of the economic benefits.

The term 'legal highs' was initially coined by those marketing them, and then latched onto by politicians and the media. However, it is an increasingly unhelpful term, not least because many of the substances that are often given this label are no longer legal. (Alcohol and tobacco are curiously never included under this moniker.) Instead, ‘novel psychoactive substances’ (NPS) is a more accurate and focused term.

There are a range of substances that come under this broad NPS heading. These drugs exist to meet a demand for that has historically been met by more familiar illegal drugs including cocaine, ecstasy/MDMA, amphetamines and cannabis. 

The emergence of NPS has therefore been driven primarily by the current prohibitionist legal environment. There would have been, for example, no demand or market opportunity for products like ‘Spice’ (one of the popular brand names for a synthetic cannabis product) in the UK if cannabis were legally available. While demand remains for a particular drug (or drug effect), the profit opportunity this creates means that the market will find a way to meet it – whether legal or illegal.

Under a strict system of legal regulation no new substance would be made available without at least a basic level of risk evaluation. A default prohibition on the commercial sale of any new NPS would therefore be justified. New drug products could only come to market provided they meet established safety criteria – as will soon be the case in New Zealand, where, rather than being prohibited outright, manufacturers of NPS will be allowed to sell their products legally, once it has been established that they do not present an unacceptable level of risk.

The frequent banning of NPS that currently occurs in many countries, however, will not be effective as long as there is no means by which the pre-existing demand for drugs can be met. Without some form of legally regulated drug supply, banning NPS simply results in a game of cat and mouse, whereby once a new drug is discovered and prohibited, manufacturers simply adapt and produce another substance that gets around existing legislation. The effects of such new and increasingly obscure substances are likely to be poorly understood and may in fact be more dangerous than ‘traditional’, illegal drugs.

Some people believe that drug use is immoral and that, since it permits such behaviour, legal regulation must also be immoral.

The morality of taking drugs for personal enjoyment is a philosophical question, yet one that has largely been answered by John Stuart Mill’s ‘harm principle’ – namely, that consenting adults should be free to engage in whatever behaviour they wish as long as it does not harm others, and that acting to prevent people from harming themselves is illegitimate.

In drug policy debates this is often portrayed as a libertarian position, but viewed more broadly this principle applies to the law with regard to almost all consenting adult risk-taking behaviours – from freedom over what we eat, how we consume legal drugs (like medicines and alcohol), through to our sexual habits, dangerous sports or other high-risk activities, and self harm up to and including suicide, which was decriminalised in the UK in 1961.

So drug laws that criminalise personal possession/use are at odds with the law as it applies to comparable personal choices regarding sovereignty over one’s body and freedoms related to individual risk-taking decisions. The legal regulation of drugs is therefore far more in keeping with existing conceptions of how society should manage issues of personal morality than the current phohibitive system.

A legally regulated drug market would significantly reduce the opportunities for organised criminals to make money from selling drugs. It is possible that drug gangs/cartels would move into other forms of criminal activity to make up for their losses. However, it is unlikely that any alternative criminal activities would hold the same high-profit/low-risk attraction, or that they would cause levels of harm to society similar to those we currently face as a result of prohibition.

Those who argue against legal regulation on the basis that criminal activity would not be eliminated, but only displaced, are effectively advocating that we maintain drug prohibition in order to try to keep criminals occupied with drug-related crime. This is clearly not the right approach. Logically, this would mean not carrying out any crime prevention measures in case criminals committed other crimes.

In any case, criminality is largely a function of opportunity (rather than the result of 'bad apples' doing bad things), and in many parts of the world – particularly Central and Latin America – drug cartels are already taking the criminal opportunities available to them. 
Importantly, if you legally regulate a lucrative black market you are cutting off resources from people who are willing to break the law and do harm, meaning those same people will not necessarily be able to partake in other criminal activities for lack of resources. 
Even if there is some diversion into other criminal activity, overall there will be a significant net fall in crime (because of many activities becoming legalised), meaning law enforcement resources will be freed up to tackle other forms of criminality.

Finally, the crime problems generated by US alcohol prohibition in the early 20th century echo those of modern drug prohibition, and the benefits of its repeal are well documented.

Illicit drug production and trade has had a range of profound and largely negative consequences for the social, political and economic development of key producer and transit countries. 

  • The illegal market causes violence in developing producer or transit countries, partly because the only way to stand your ground as a business person without recourse to the law is to use violence. 
  • The amount of demand for drugs globally means those in control of production have huge amounts of money which they can and often do use to bribe government officials and law enforcement, thus undermining governments. Instead of making decisions based on the welfare and furtherance of the wider public, an official may be bribed to make a decision 'favourable' to a drug lord. 
  • The more activities are criminalised, the more money is needed for enforcement. In a region where a lot of people and resources are engaged in illegal actvity, like cocaine production in some South American countries, money is spent on enforcement which could otherwise be spent on infrastructure, health care or education. The nature of market criminalisation means that necessarily finite public money is allocated away from things which could bring about development and growth. 

Consequently, legal regulation, though coming with risks of its own, is expected to benefit developing countries which are currently involved in drug production and transit. The development consequences of global prohibition – and impacts of any shifts away from it – need to become more central to the drug reform discourse, which has tended to focus on the domestic concerns of developed world user countries.

Driving under the influence of any drug that impairs driving performance is dangerous, risks causing harm to others and should be an offence, regardless of the drug's legal status.

However, it should be noted that testing drivers for any impairing effects produced by various currently illegal drugs is in most cases more complicated than testing for any impairment produced by alcohol. Indeed, blood alcohol content (BAC) is widely accepted to have a strong correlation with levels of impairment, meaning threshold limits can be established that are associated with a hierarchy of penalties for drink driving offences.

The same, however, cannot be said for blood concentrations of the active ingredients found in many other drugs. For example, blood concentrations of the main psychoactive ingredient in cannabis, THC, do not correlate closely with levels of impairment due to the unique way that it is processed by the body. Depending on the testing method being used, cannabis can also be detected in a user’s system long after any impairing effect has worn off – sometimes several weeks after use. There is therefore a considerable risk of tests registering false positives.

There are also technological obstacles preventing the use of quick, non-invasive testing methods similar to the ‘breathalysers’ that are routinely used to identify those driving under the influence of alcohol.

In light of such challenges, and the wide variety of possible effects that different drugs can have on different people, developing limits that are equivalent to those which exist for alcohol is highly problematic. For most drugs, it therefore seems prudent for behavioural assessments of impairment to form a central part of the evidence on which any legal penalty might be based. Such assessments vary in their degree of sophistication, ranging from field sobriety tests that involve touching your nose or walking in a straight line, to computer assisted tests. Once evidence of impairment has been established via such methods, this can be corroborated by analysis of (preferably) a blood sample, provided there exists sufficient scientific consensus regarding the way in which blood concentrations of drug ingredients correspond to levels of impairment.

Finally, it is worth recognising that different drugs will have different effects on impairment, with some potentially reducing it. There is strong evidence, for example, that some stimulants such as cocaine and amphetamines can actually increase alertness and vigilance. (There is even a long history of fighter pilots being administered stimulants to increase there concentration and alertness.) Similarly, it is interesting to note that the government advice for tired drivers is to stop, rest and drink a cup of coffee. They are, unambiguously, advocating that drivers actually take drugs (in this case caffeine) as a way of improving their driving. The RAC, too, produces a red-bull style caffeine energy drink for the same purpose.