Select Committee on Home Affairs Minutes of Evidence

Examination of Witnesses (Questions 200 - 219)



David Winnick

  200. We did ask the Home Office for some added papers or ammunition against your persuasiveness which we expected, so to some extent we are armed. Can I ask about decriminalisation. How far would that be considered different from outright legislation?
  (Mr Davies) You said "legislation", you mean "legalisation"?

  201. Yes, as opposed to decriminalisation.
  (Mr Evans) I think it would be a completely false distinction. The Home Office talks about civil sanctions and so on, as a lawyer I see that as a completely false distinction. One simply has to make the mind shift from a system which proceeds from an assumption of fundamental illegality, which we have had since 1920, and it is very difficult to get out of it, to a system of reasoning which proceeds from legality and deals with malfunctions. I doubt if anyone here can do it. That is one of the reasons why we sat down for three months and tried to do it ourselves, the 15 of us, forcing ourselves to think through a new world where there was no presumption of illegality. It is a very difficult thing to do.
  (Mr Kushlick) If we look at the Dutch as a model of decriminalisation, and alcohol, tranquillisers, tobacco, paracetamol, aspirin, as models of legalisation, the difference is the management of the supply side, and that is what in Transform's view makes the distinction. What legalisation enables you to do, and this could only be done by unsigning or renegotiating the international treaties, is to control the supply side through legalisation, through one of those four methods. Decriminalisation leaves the whole structure in place and means you can mitigate against the worst excesses, the prohibition causes, and, as Conor was saying, you can tinker and tamper with bits and pieces and you can regulate the worst excesses of prohibition, but only legalisation will enable you to control price, purity and production.

  202. But in your own memorandum, paragraph 27, you do say, "Whilst Transform ultimately calls for the legalisation of drugs, that can only happen in conjunction with other countries and after the rewriting of the international treaties. In the meantime, decriminalisation would remove criminal sanctions . . .". So you accept it cannot be done as far as changing the law is concerned without changing international treaties?
  (Mr Kushlick) In terms of regulating the supply side, legalisation can only be done by renegotiating the international treaties. In terms of not busting users and dealers and putting in place coffee shops, the Dutch have been able to do what they have done and they are still signatories; they have not been ostracised by the whole UN community and they still play a part in international politics. There is room for manoeuvre.

  203. But when it comes to actual legislation, you accept it has to be done by a change in international treaties?
  (Mr Kushlick) Legalisation. Unless you just ignore them. The US do it quite happily, so you can do a Kyoto with it and pretend they do not exist.

  204. I am quoting your own memorandum.
  (Mr Kushlick) I am saying you can ignore them, but I would suggest that is not a useful way forward in terms of maintaining your status as an international player.


  205. Ignoring treaties, Mr Evans, you are a lawyer, is that a good idea?
  (Mr Evans) There is no doubt in the case of cannabis we can simply derogate. I think we can give six months' notice and say we are no longer going to comply with it. The bigger problem is, and it is not a problem which has resolved by the Dutch experience, if you simply decriminalise by a nod, nod, wink, wink by the police force, you decriminalise consumption but where do these cafés get their supplies from? At the moment the Netherlands are trying to face that and I gather the Parliament has passed a law decriminalising the backdoor as well as the front door. I think we are faced with something much more difficult but we have not got the various judicial half-way houses which they have in continental systems like administrative offences which do not equate to crimes, the power to give a direction to the prosecuting authorities generally not to take action. We have not got any of those devices in our law and we are, and you are, faced with the uncomfortable proposition of actually changing the substance of the law in order to get an effect. I think a very large number of the continental experiments, including Portugal and Spain—not Italy because Italy faced up to complying with the Human Rights Act with the European Convention and specifically changed their law on personal consumption—are fudging it in ways which you, as parliamentarians, would find probably unacceptable. We have not got a number of the fudging devices which are available in continental criminal law.

David Winnick

  206. When we had the senior Home Office officials last week—and I do not criticise, they cannot say anything out of place for the obvious reason that it is not their job to do so, it is ministers'—I, with colleagues, made the point that in effect the Home Secretary's announcement of a fortnight ago meant those in possession of small amounts of cannabis would not be prosecuted so it was being decriminalised. The Home Office, again with the reservations I have made about senior officials who are civil servants, denied that. Would you accept, gentlemen, that what the Home Secretary has said has meant that those in possession of small amounts of cannabis will not face any criminal sanctions in practice, therefore it has in effect been decriminalised?
  (Mr Evans) The answer is no, it has not. There are many, many, particularly young professionals—I have heart-rending discussions with young teachers—who have had their careers wrecked merely for a minor cannabis possession offence. The fact is it is still on the statute book. I am sure the DfES would still withdraw a teacher's licence if a teacher is (if it gets out of course, you have the argument it may never get out) was caught in possession. The teacher would not be arrested and there probably would not be a prosecution, but it would be quite enough still because it would still be an illegal act to ruin careers, as it does in tragic ways all the time, it is happening now. So I think decriminalisation is simply a device to avoid a challenge in the courts under the Human Rights Act. It will do that, of course, because there will be no actionable wrong under section 5 of the Misuse of Drugs Act, namely simple possession for personal consumption. No one will be arrested, therefore there will not be an actionable wrong, no one will be prosecuted, therefore there will not an actionable wrong, and therefore Britain will not get taken to the European Court of Human Rights. I think that is the sole objective of the present change in policy.
  (Mr Buffry) If the policy suggested by the Home Secretary is implemented—declassification of cannabis as a class C drug—cannabis possession would still be an offence under criminal law, punishable by up to two years in prison, and for supply by up to five years in prison, so the sentences will come down. Basically the idea is that if somebody is caught with a small amount of cannabis, they might receive a warning from the police, have the cannabis confiscated, possibly receive a caution from the police, possibly a summons to court at a later date, but there is no limit put on to suggest what a personal amount of cannabis could be. If somebody, for instance, was growing cannabis at home, they could grow several pounds of it for their own use, be carting it down the street for some reason and get caught with a large amount of cannabis for their own use and still face prosecution. At the same time, for the people who are not growing it, there would be no legal supply yet the dealers themselves would face less severe penalties if caught and people might be more tempted to try it knowing they were not going to get arrested. The problem is, this is a very vague suggestion, it is not decriminalisation at all, it is reclassification. I do not see it as going to solve many problems for anybody other than the police who will not have to spend so much time arresting people and filling out reports and so on. Secondly, if somebody is caught, for instance, in possession of ecstasy or caught for shoplifting and arrested for those offences and found to be in possession of cannabis, they will probably still be prosecuted as well.

  207. I take the reservations both of you have made, and I think they are very important ones which will certainly be reflected in our considerations when we decide on these matters at the end of all the evidence, but it has been interpreted by the media as well as a number of commentators, that in effect this is a Government U-turn, that the Government has at least viewed this as a sensible approach, whatever may happen in months or years to come. But as far as I can tell from the answers from both of you—and presumably the other three witnesses—you do not see it in those terms, that the Government has taken the first step towards the sort of policies which you would like to see? You do not see it in that way?
  (Mr Kushlick) The thing is, it is not just cannabis which was mentioned. One of the most important things which was mentioned in the press release from the Home Office at the same time as the announcement on the reclassification of cannabis, was a new look at the heroin-prescribing programme. In terms of looking at things anew, looking at the drugs which as a result of prohibition have caused the most harm—heroin and cocaine—looking at heroin again is the most important. In terms of police allocation of resources, cannabis reclassification is going to make some difference, but not if they focus on class A dealers, because we know that does not make any difference either. The Home Office Study of Mike Hough shows that class A dealers are replaced within hours or days, or they are just displaced to other areas of the city. The significant issue is the re-look at heroin prescribing and, according to the Independent on Sunday article, an increase of five-fold in the number of people who are going to get scripts. We need to look at the whole thing. In terms of resource allocation, there is no point focusing police resources on busting people who smoke dope, it is a waste of time and everybody knows it. There is a strong case for looking at offering wider treatment modalities to people with heroin dependency, and there is a clear indication that is being looked at sincerely for the first time really since the Labour Government came in and harm reduction fell off the menu.
  (Mr Evans) I do think it is a first step. I think the whole fallacious logic of prohibition is crumbling, and this is an indication by the Government that it simply cannot sustain its position in the face of the Human Rights Act. I think it is now extremely unlikely there will be any successful Human Rights Act challenge to the Misuse of Drugs Act 1971, because it was only section 5, namely possession for personal use, which was open to human rights attack, and the Government over the last 18 months has gradually withdrawn from that position, culminating in the very important statement made.

  208. I am glad you said that because otherwise, in the form of a question, what would then be the difference between the Government's reaction when the Police Foundation report came out last year, when the whole Government line was there could be no possible change, no reclassification, and what has happened since? Presumably the other four of you do accept that however small a step, it has been a step in the sort of direction you wish to see?
  (Mr McNicholas) I think it is the beginning of a domino effect. If you apply the same logic to ecstasy as was applied to cannabis in this case, then immediately ecstasy must be classified as class B, and possibly even as class C. If you take the logic further, ultimately you end up with legalisation. My problem with decriminalisation at the moment is that a lot of drugs users are young people and it is very important they are able to build a relationship of trust with those people in authority, be they politicians or be they policemen. If you are in a situation where if you are caught with small amounts of cannabis, all that decriminalisation means is you are not guaranteed to be prosecuted but you could very well be prosecuted. That to me is a terrible fudge to stick on a whole load of young people who as far as they are concerned are simply going about recreational activities. It does not help build an establishment of trust with people in authority. These young people are not voting.

  Chairman: We will not get into that last point, if you do not mind.

Angela Watkinson

  209. If you accept the market and the demand for drugs is user-led, how do you foresee personal responsibility for the individual user's actions being introduced into policy? If they are going to be free to have access to the drugs they want, there must be some way of making them responsible for the outcomes of that usage.
  (Mr Evans) Not the Government's business.
  (Mr Kushlick) It is not because—

  210. It is, because the taxpayer has to pick up the bill.
  (Mr Kushlick) What do we do with alcohol and tobacco at the moment? We have a situation where tobacco kills 300 people every day. Government does not actually care that much.


  211. That is a rather controversial statement. Enormous resources are taken up by dealing with the health effects of smoking.
  (Mr McNicholas) But they have not banned tobacco advertising, have they?

  212. You are not wishing us to, are you?
  (Mr Kushlick) If you want to hand another trade to the mafia, you could do. If you were to ban either alcohol or tobacco, you would hand another couple of substances to the mafia, and the price would go up and quality would go down. The issue is, what is the Government's responsibility in terms of people who are going to get into health difficulties as a result of drug misuse, and what do we do about addiction? At the moment, we offer facilities for people to come forward who have alcohol or tobacco problems and we provide treatment for them but we do not go around forcing them on to abstinence orders, and we do not do it for tranquilliser-users either. People who are addicted to tranquillisers just stay on them. They are so hard to come off, it is a lot harder to come off tranquillisers than any other drug, and they are pretty much prescribed until people die. That is what we do with those drugs. Let us level the playing field here. I know we are opening up a can of worms in terms of moving drugs from a prohibited status into a legalised status, but let us not miss the bigger picture here in terms of what we currently do with drugs which are already legally available. Unless we change the whole of our drugs policy and look at those things and change the way we look at them, there is a danger of moving into territory that is unheard of really.

Mr Cameron

  213. I take it from the previous answers, you all think that Blunkett's recent announcement is a small step in the right direction, but I want to get to what you think the next step would be. Is it decriminalisation, is it Peter Lilley's licensed premises, is it coffee shops? Where do you want to take it? Just on cannabis at the moment.
  (Mr Kushlick) We can take away all criminal sanctions, there is no reason for cannabis to have any criminal sanctions at all.

  214. Supply and use? You have to be precise here.
  (Mr Kushlick) In terms of use, absolutely none. There is no point busting users. In terms of supply, what we really need is a legalised supply.

  215. So licensed coffee shops?
  (Mr Kushlick) Licensed retailers.

  216. Mr Davies, are you for licensed retailers for cannabis?
  (Mr Davies) I am not terribly interested in cannabis. I think it is almost too small a problem to be dealing with. Can I talk about the Blunkett announcement? There is no point saying, "We will take a look at prescribing heroin" if at the same time you continue to accept the kind of language which he is talking, which is, "We want to do this on cannabis so the police can concentrate their resources on the more dangerous drugs." He is getting it all wrong. I do not know whether that is a clever political screen behind which he can do the right thing by heroin users, or whether he believes it. I am worried that if the Home Office continue to think in those terms, they may introduce some amendment to the current prescription regime which will be a repeat of what happened in the early 1970s. They set up drug dependency units to give heroin to users, and then the wind changed on policy and they introduced a rationing system, so you could have the heroin but only for six weeks and in rapidly reducing doses, which is what pushed people out into the black market. Between 1926 and 1971 the black market was stable, then it boomed.

  217. Just on cannabis for the moment, so licensed coffee shops, what about the harder forms of cannabis—skunk, superskunk, what have you—would you have that licensed through coffee shops or would that be illegal, because there would still be an element of a black market?
  (Mr Kushlick) Again we need to look at what we do with alcohol. We have low alcohol beers, 5 per cent, and then we have spirits, and they are all marked, everybody knows what they are drinking when they get it, the same thing needs to be done here, so people know what they are buying. It is the same sort of drug, it is just much more powerful.

  218. Where do you think public opinion is on all of this?
  (Mr McNicholas) For me, I think Blunkett's announcement really goes back to Ann Widdecombe's zero tolerance announcement at the Tory Party Conference a couple of years ago and the ridicule which ensued from that. The reason there was so much universal derision was that a lot of the MPs at the Conference, a lot of other people at the Conference, a lot of people in the media, looked at that zero tolerance possibility and said, "That means me"; a proportion would have said, "That means me." Even if they were not a cannabis-user, they would have looked at it and said, "My kids are at university or at college, that probably means them."

  219. That is helpful. I think people were worried about criminal records for their children, yes. I would be interested if any of you have any figures on public support for decriminalisation or legalisation of cannabis.
  (Mr Kushlick) We did an NOP poll last year and 50 per cent of people wanted some reform of the drug laws, mainly on cannabis. It reflected a Home Office study from 1993 when 8 per cent of the population supported the legalisation of all drugs, because 8 per cent supported legalisation of all drugs in the NOP poll we ran. About half the population, it is generally accepted, wants reform on cannabis. The other interesting thing here is that public policy needs to be driven by what reduces harm and what is in the best interests of the majority of the population, and it may be that goes against public opinion. We currently have a law on homosexuality which probably would not be supported by the majority of the population and we have removed capital punishment. What we are looking at here is leadership on the basis of what works, rather than waiting for everybody to wave their hand and say, "We want it now, we want it now."

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