UK justice secretary Ken Clarke was only expressing a truism about the control of drugs when, last month, he told the Commons home affairs select committee he “frankly conceded that policy has not been working …it could be argued we are going backwards at times.”
Rather than steaming towards clear blue water and suggesting some change of approach, Clarke gently rowed himself back to the stagnant pool of the status quo, saying: “Government has no intention whatever of changing the criminal law on drugs.”
However, in contrast, the New Zealand Cabinet has just approved a radical new direction in controlling psychoactive substances “by prohibiting the sale of all psychoactive substances unless approved by a regulator.”
The switch from blanket bans to regulation is intended to “reduce risks to the public by removing untested and potentially harmful products from being sold and introducing a pre-market approval scheme with testing requirements and retail restrictions.”
The only barrier to the wave of new psychoactive substances flooding into the UK has only, so far, been some high level legal tinkering through use of temporary banning orders. But the “headshops” on our high streets still sell the fake weed, powders and pills and there appears to be a general apathy about what can be done.
The police cannot be deployed because most of the substances are still legal and the law cannot keep up with the numbers of new drugs emerging.
The online market also continues to thrive. The European Monitoring Centre for Drugs and Drug Addiction (EMCDDA) figures show in the six months between January and July 2011 the number of these retailers in the UK increased from 74 to 121 and made up more than 20% of the world market.
New Zealand shares a great many similarities to the UK in drug use, availability, and choice. Its laws on drugs are also remarkably similar to the UK’s. But officials and ministers in the New Zealand capital Wellington have taken a sideways look at the problem of legal highs and club drugs and have come up with an imaginative response. Why not legally force the manufacturers and suppliers of these substances to demonstrate they are safe for human consumption?
Reversing the onus may not be the perfect solution; no initiative on drugs ever is. Drugs are one of those intractable social problems where only improvements can be sought,but where cures remain elusive. But this new law looks like being a helpful contribution by adopting a purely pragmatic outlook.
Ross Bell, executive director of the New Zealand Drug Foundation, said: “Unknown and untested new synthetic substances have been hitting the shelves for a decade in New Zealand. Consumers have simply never known whether these drugs are safe or not. It makes sense that the industry should have to jump through hoops to prove its products are safe before they go on sale.” He described the current situation as “an absolute joke.”
Associate health minister Peter Dunne, the driving force behind the new legislation, said other countries “will be looking at what we do, and if we can make this regime work… then I think they will be following suit.”
The new model has been advocated by respected bodies such as the UK Drug Policy Commission in its 2011 report with the think tank Demos, Taking Drugs Seriously. The UK government’s own Advisory Council on the Misuse of Drugs report Consideration of the Novel Psychoactive Substances (‘Legal Highs’) recommended: “The burden of proof should be placed upon the supplier to establish beyond reasonable doubt that the product being sold is not for human consumption and is safe for its intended use.”
The Home Office seems implacable to what seems to be eminently sensible efforts to lift us from this political indolence. “We believe the Misuse of Drugs Act works and continues to protect the public from the serious harms caused by illicit drug use,” said a spokesman.
But there also appears to be plenty of existing legislation outside the Misuse of Drugs Act 1971 that could be applied locally now in respect of public protection and trading standards.
Headshops on the high street put the new psychoactive substances into the “shop window” for young people and so normalise their availability and use. Currently local councils, particularly in London, take very different views on headshops. Camden Council has had a long history of retailers wishing to push the boundaries of the law. In 2003/4 many began trading in legal magic mushrooms until primary legislation curtailed their trade.
The sale of new drugs was thriving but has been largely shut down by the council. A spokeswoman said: “The council has worked in conjunction with the police and local shop owners to discourage the sale of legal highs in Camden. In the past the council has advised shop owners as to what are and are not legal so they do not inadvertently fall foul of the law.”
By contrast in Greenwich, south London, a huge range of legal highs, such as Salvia Divinorum, are available in headshops.
The UK government could at least suggest to all councils to follow best practise and take a more aggressive stance. As it stands powerful drugs can just be bought over the counter in some high streets.
However, the departments of businesses innovation and skills, and for communities and local government, insist it is the Home Office that is responsible, and there seems to be no will to deploy local trading standards and consumer protection here.
Home secretary Theresa May, not usually one to bow meekly to Brussels, is hiding behind EU law. She said “much [of the] current UK consumer protection legislation implements Directives that are harmonised across the EU and which were not intended to deal with substances of misuse, [so] the scope to use consumer legislation to deal with new psychoactive substances is limited.”
British ministers still think solely about big solutions to the big social problems and so ignore more mundane options which could be used effectively now.
As our New Zealand counterparts have found, the test on policy should be simply whether it is effective, not whether Ministers can continue to look resolute in the face of ongoing failure.
Jeremy Sare is parliamentary adviser to the Angelus Foundation set up to education parents and children about the dangers of “legal highs.”