The prominent role of science

Another important stakeholder in helping to get decriminalisation of drug use accepted was science.

Particularly in the Netherlands scientists played a decisive role in the paradigm change from crime to health. The reports of the Hulsman and the Baan Commission also underpinned the view that criminalising drug use is counterproductive. It was one of their key arguments in favour of decriminalisation (see 4.1.2). These reports also mark the change from a bottom-up countermovement to a top-down driven reform like in the case of harm reduction. The Hulsman report stressed that criminalising drug use has a very limited effect on the extent of drug use and is therefore not an effective means to control or reduce drug use. The report came up with a rather elaborated plan how to implement decriminalisation. It suggested a number of steps in order to deal with the drug problems more successfully, to avoid marginalisation and exclusion, among others by fully decriminalising the use of cannabis and the possession of small quantities. The production and distribution of cannabis should – for the time being – remain within criminal law, but as misdemeanours. The use and possession of other drugs should also temporarily remain in the realm of criminal law, be it only as misdemeanours. However, in the long run these acts should also be decriminalized (Stichting Algemeen Centraal Bureau voor de Geestelijke Volksgezondheid 1971).

The report of the Baan Commission provided a thorough description of the negative consequences of criminalising drug use for the user. It focused for an important part on the cannabis issue.

Responding to so‑called ‘deviant’ behaviour by punitive measures was expected to in fact intensify this behaviour. In turn this might result in a spiral, impeding the return of people using drugs to a socially accepted lifestyle. The report also underlined that most drug use is a short-lasting experimentation by young people and that cannabis use is in most cases not the first step to the use of other, more dangerous drugs.

40 http://ec.europa.eu/justice/anti-drugs/civil-society/index_en.htm [accessed 16 December 2013].

70

The report of the Hulsman Commission noted that it is the criminalisation of cannabis which is the link between cannabis use and the use of “harder” drugs. Another important conclusion was that drug users are better served with drug information and prevention efforts than with prosecution (Werkgroep Verdovende Middelen 1972).

Both reports clearly differentiated between separate political strategies for soft drugs and hard drugs and also for drug use and production and sales of drugs. This does not only reflect the differentiation between drugs presenting unacceptable risks to user and society and drugs which present less serious risks. It also reflects a strategic choice, telling us something about the feasibility of drug law reforms in that time. Decriminalising the use of illicit drugs was – due to the appealing health paradigm – better accepted by various stakeholders than decriminalising of production and sales.

Decriminalising soft drugs was more acceptable than decriminalising hard drugs. However, even for those drugs that posed, according to the Baan Commission, unacceptable risks, the report concluded that using criminal law measures was not an appropriate approach. The commission also suggested a long-term goal of complete decriminalization, as soon a good treatment system was established. In the meantime, the justice system should only be used as a tool for getting heavy users into treatment.

These two reports corroborated the change from the crime paradigm to the health paradigm. They brought together the then available research evidence underpinning the view that criminalisation of drug use worsened problems for users and society. They contributed to a wider acceptance of this view. The health paradigm was embraced as leading concept in drug policy, giving the lead to the Netherlands Ministry of Health. The change of the Dutch drug law in 1976 resulted in a de facto decriminalisation of drug use.

The criminalisation debate in the UK in the early 21^st century: science overruled

The UK is another example where science played a key role in the (de)criminalisation debate. Here the debate centred mainly around the classification of drugs according to their actual harmfulness, an issue which also played a role in the Netherlands, resulting in the differentiation between ‘hard drugs’ and ‘soft drugs’ in 1976 drug law. Despite this somewhat different focus of the Dutch and the British debates about criminalisation, in both countries scientific advice played a prominent role for backing drug policy decisions, in particular in the 1970s, the early years of national drug policies. One cornerstone of UK drug policy, the differentiation between three classes of drugs according to the harm perceived⁴¹, laid down in the 1971 Misuse of Drugs Act (MDA), is claimed to be firmly based on scientific evidence. The Misuse of Drugs Act is the primary piece of legislation governing illegal drugs or legal drugs intended for nonmedical purposes. The classification system acts as a guide to the police, and the judiciary in terms of sentencing.⁴²

Scientific advice has traditionally an important say regarding the classification of drugs, as Monaghan (2014) notes: “A further key component of the 1971 legislation was that it established Britain’s first statutory expert advisory body on illicit drugs, the ACMD⁴³. Amongst their many functions, the ACMD continuously review the UK drug situation, paying particular attention to the misuse (or the potential thereof) of drugs by the public to the extent that they might be considered a social problem.

41 These are currently: Class A, among others heroin, cocaine, crack, MDMA, LSD, Class B, among others amphetamine, barbiturates, cannabis, spice, and mephedrone and Class C, among others benzodiazepines, mild amphetamine type stimulants, GHB, rohypnol and ketamine.

42 The Home Office, Drugs and the Law. [Online]. Available: http://www.homeoffice.gov.uk/drugs/drug-law/ [accessed 2^nd February 2013].

43 Advisory Council of the Misuse of Drugs.

71

This is mainly achieved through the production of detailed and rigorous evidence reviews. Their membership is made up from across the scientific, industrial and professional sectors, but most of their work concentrates on the pharmacological evidence-base for existing and emerging substances thus embedding science, research and expertise into the decision-making process. For most of its existence it was common practice for the government to accept and act upon the recommendations of the council, although in a very high-profile way this relationship has been tumultuous over recent years, highlighted in recent public debates about the classification of ecstasy, magic mushrooms and, primarily, cannabis within the MDA.”

Indeed, the ‘tumultuous’ developments around the classification of cannabis present an interesting case, which shows that it is no longer a matter of course that political decisions follow the advice given by the ACMD. Cannabis was classified as a class B drug from the introduction of the Misuse of Drugs act in 1971. In 2001 the governing Labour Party announced plans to downgrade cannabis to a class C drug.⁴⁴ In January 2004 cannabis was reclassified as a class C drug. Evidence produced by the ACMD that cannabis was less harmful than other class A and B drugs was the driver behind this reclassification. The ACMD had been calling for such a step since the late 1970s.⁴⁵ This policy – which was also well supported by public opinion polls – resulted in less strict regimes and less harsh sanctions, which translated into a decrease of one third in cannabis arrests in the first year⁴⁶. This reclassification in effect stopped people being arrested for possessing small amounts of cannabis.

And there was the additional benefit of allowing the police to focus on what were seen as more harmful drugs and more serious offences.

In the following (2005) general election campaign Tony Blair, then Prime Minister, stated at an election event that the downgrading of cannabis might have been an error. He said that in light of evidence of the growing strength of some types of cannabis available in the UK that the classification would be re-examined.⁴⁷ After winning the election the issue of cannabis classification was in March 2005 once again given to the ACMD for an evaluation. This was primarily a response to warnings about the link between the use of particularly high-strength strains of cannabis (skunk) and certain kinds of mental illness. The ACMD published a second review later that year supporting the classification of cannabis as class C drug.⁴⁸ The then Home Secretary Charles Clarke accepted this and initiated a new educational programme for the public in relation to cannabis.

However, drug classification appeared again in media headlines in 2008. The government under new Prime Minister Gordon Brown raised concerns about cannabis once more. Again the ACMD was requested to produce a review. What followed is an interesting chapter in the history of UK drug policy making:

44 Alan Travis (Wednesday 24 October 2001). Cannabis laws eased in drug policy shakeup, The Guardian. [Online]. Available at:

http://www.guardian.co.uk/society/2001/oct/24 drugsandalcohol/ [accessed 4th February 2013].

45 Schaffer Library of Drug Policy, The Police Foundation (1999). Drugs and the Law: Report of the independent inquiry into The Misuse of Drugs Act 1971. [Online]. Available at: http://www.druglibrary.org/SCHAFFER/LIBRARY/studies/runciman/default.htm [accessed 4th February 2013].

46 Home Office, 28^th January 2005, Cannabis Reclassification (Press release), National Archives. [Online]. Available at:

http://web.archive.org/web/20050412170503/http://www.homeoffice.gov.uk/n_story.asp?item_id=1222 [accessed 4^th February 2013].

47 Philip Johnson and George Jones, 4^th May 2005, Blair Hints at Error over Cannabis Downgrade, The Telegraph. [Online]. Available at:

http://www.telegraph.co.uk/news/uknews/1489263/Blair-hints-at-error-over-cannabis-downgrade.html [accessed 4th February 2013].

48 Advisory Council on the Misuse of Drugs (2005) The Advisory Council’s Report - Further consideration of the classification of cannabis under the Misuse of Drugs Act 1971.(2005), Home office. [Online]. Available at: http://www.homeoffice.gov.uk/publications/agencies-public-bodies/acmd1/cannabis-reclass-2005 [accessed 4th February 2013].

72

“The ACMD (2008) reported back that although there was a consistent, but ‘weak’ association between cannabis use and the development of psychotic illness, they remained resolute that cannabis was correctly classified as a class C substance. However, unlike in 2005, the Government ignored this advice and announced a reversal of the 2004 downgrading. Some informed observers argue this was done to demonstrate difference with the previous policies and to curry favour with certain parts of the media ( … ). Whatever the underlying reasons, this was the origin of the dispute between Professor Nutt, the then Chair of the ACMD and the New Labour government. This was to later escalate, when in March 2009, the advisory council considered the legal status of ecstasy recommending a downgrading of its classification from class A to B (ACMD, 2009). The government’s decision to seemingly ignore outright this advice led to a heated exchange between Nutt and the then Home Secretary, Jacqui Smith. Later in 2009, relations between members of the ACMD and the government further deteriorated. Alan Johnson, who by this time had replaced Smith as Home Secretary, accused Nutt of overstepping his remit and of ‘campaigning against’ government policy in a lecture delivered in July 2009 where Nutt claimed that based on the existing science both cannabis and ecstasy are less harmful than legal drugs such as alcohol and should, therefore, be downgraded.

Nutt was subsequently dismissed from the ACMD leading to the resignation of five other members.”

(Monaghan 2014).

5.3.3 Politicisation of drug policy: the tension between scientific evidence and political decisions