Debate on Drug Policy - 11 December 2014
Contribution by Baroness Meacher to the debate on the Queen's speech in the UK Parliament.
It is important to welcome the Government's review of international drug policy developments and the review of policy in relation to new psychoactive substances. Neither of these two pieces of work is complete, so I understand that there is nothing on those issues in the Queen's Speech. However I am sure that the Government are undertaking the reviews for a purpose and I hope that the Minister can give the House some hope that before the election they will introduce sensible evidence-based reforms that would provide a safer world for our children.
(Hansard June 9th)
1. Response to EU consultation on ‘Towards a stronger European response to drugs’
2. Submission to Lords EU Select Committee on the EU Drugs Strategy (2005-12)
3. Briefing on the Police Reform and Social Responsibility Bill (2011)
All-Party Group responds to EU consultation on ‘Towards a stronger European response to drugs’
The consultation closed on the 3rd February 2012. It provided an opportunity to revisit the main points of our earlier submission to the EU Select Committee (see post for the 4th October 2011). In summary we made the following comments.
In the first place, it is important to challenge the assumption behind the EU document that stronger
response is necessarily a more effective response. Such evidence as there is on the impact of drug
policy on prevalence, availability and consequent harms points strongly to the ineffectiveness of the
current EU and previous drug strategies in these respects even though they have emphasised
strongly enforcement and supply side interventions in their statements and activities.
Problem Areas and Recommendations
Problems with the EU role in all 3 areas covered by the consultation questions include:
1. Acknowledging a failure to impact on the availability and levels of use of drugs yet not revisiting the crime focussed policies associated with that failure;
2. Claiming to promote a balanced approach to drug policy across Europe when, on average, it is estimated that public spending on drug related public order and safety is almost 3 times as much as on drug related health;
3. Developing extensive monitoring frameworks with standard indicators for demand reduction measures yet after many years the challenge of developing and implementing Europe-wide indicators for the effectiveness of supply side interventions remains;
4. The EU’s drug related aid programme to developing countries is dominated by supply side initiatives and in some cases has facilitated human rights abuses;
5. The EU response to challenges such as new ‘legal highs’ emphasises the use of criminal law despite clear indications from member states that they wish to consider other regulatory options
6. Drug policy should be first and foremost evidence-based policy. As part of its Strategy, the EU undertook the development of the evidence base to improve understanding of the drugs problem across Europe and develop tools for evaluation. The European Monitoring Centre for Drugs and Drug Abuse (EMCDDA) continues to be a valuable resource in encouraging the sharing of data about drug problems, improving their quality, building the evidence base and opening the debate on drug policy. However there are worrying examples where the EU has failed to fully engage with the evidence
All-Party Group Submission to the Select Committee on the European Union Inquiry into the EU Drug Strategy (2005/12)
The All-Party Group made a submission to the Select Committee on the European Union Inquiry into the EU Drug Strategy (2005/12). In summary, the submission argued that the EU Drug Strategy has represented a European balancing act between the 27 national drug policies and in doing so has missed opportunities to be a vehicle for progressive reform in drug policy. There have been positive developments in the work of the European Monitoring Centre for Drugs and Drug Abuse (EMCDDA) which is a valuable resource of data and good practice in treatment and drug prevention. However, data and evaluations on supply side interventions are still seriously inadequate at European level. The EU should be in a strong position to promote change in drug policy. Its Member States have a broad and varied experience to draw upon in tackling drug problems, relatively good data and relatively strong public institutions. As such, it should promote a significant shift in drug policy away from policing and criminal justice towards health, assess a range of regulatory options for drug control and to provide a reforming influence on drug policy within international institutions such as the United Nations Office for Drugs and Crime (UNODC).
Submission to the SELECT COMMITTEE ON THE EUROPEAN UNION, Sub-Committee on Home Affairs - INQUIRY INTO THE EU DRUGS STRATEGY (2005-12)
The All Party Parliamentary Group for Drug Policy Reform (APPGDPR) is pleased to make a submission of evidence to the Select Committee on the European Union, Sub-Committee on Home Affairs – Inquiry into the EU Drugs Strategy (2005-12). The APPGDPR was formed at the beginning of this year in response to widespread criticism of current ‘war on drugs’ policies at both national and international levels and to promote evidence based, health focussed approaches to the formation and implementation of drug policy. Accordingly, our comments focus on these issues.
1. Summary conclusions
1.1 The EU Drug Strategy represents a balancing act between divergent approaches to drug policy by member states. It is also guided by the single UN Convention of 1961 on drugs and subsequent amendments. As such it is currently a reflection of many of the problems with national and international drug policy and has not fulfilled its potential as a vehicle for change. Examples of this include:
1.1.1 Acknowledging a failure to impact on the availability and levels of use of drugs yet not revisiting the crime focussed policies associated with that failure;
1.1.2 Claiming to promote a balanced approach to drug policy across Europe when, on average, it is estimated that public spending on drug related public order and safety is almost 3 times as much as on drug related health;
1.1.3 Developing extensive monitoring frameworks with standard indicators for demand reduction measures yet after seven years the challenge of developing and implementing Europe-wide indicators for the effectiveness of supply side interventions remains;
1.1.4 The EU’s drug related aid programme to developing countries is dominated by supply side initiatives;
1.1.5 The EU response to challenges such as new ‘legal highs’ emphasises the use of criminal law despite clear indications from member states that they wish to consider other regulatory options.
1.2 As part of its Strategy, the EU undertook the development of the evidence base to improve understanding of the drugs problem across Europe and develop tools for evaluation. The European Monitoring Centre for Drugs and Drug Abuse (EMCDDA) continues to be a valuable resource in encouraging the sharing of data about drug problems, improving their quality, building the evidence base and opening the debate on drug policy. However there are worrying examples where the EU has failed to fully engage with the evidence.
1.2.1 The EU appears to be unwilling to promote contested practice even when it is strongly indicated by evidence. For example heroin assisted treatment does not appear in the EMCDDA treatment or best practice databases despite being successfully implemented in several member states and being indicated by research evidence as successful for those with problems in engaging with more mainstream forms of treatment.
1.2.2 A major area of competence for the EU is in the field of information and prevention. However, the evidence base for effectiveness in this field is extremely limited. Such evidence as there is can be found in the EMCDDA’s online resources but an enormous amount of prevention practice occurs within Europe without reference to the known evidence and, unfortunately, poor practice is promoted by other EU institutions.
1.3 The EU has an important role in arguing for good practice at international level and it has been an important advocate for harm reduction approaches. However, the level of harm reduction provision is concerningly low in some member states and as far as high risk groups in prisons are concerned concerningly low across Europe. Although these issues are featured in the current EU strategy and Action Plan they need to be given a stronger priority.
A future EU Strategy
1.4 The UNODC discussion document 'from coercion to cohesion’ spells out clearly that drug addiction is a health problem and not a crime and represents a sign of potential change at UN level. The EU strategy needs to highlight and reinforce this new approach and actively promote evidence based health oriented practises such as the Swiss Heroin Treatment clinics and Portuguese decriminalisation of drug use combined with tough treatment requirements.
1.5 The EU should be in a strong position to promote change in drug policy. Its Member States have a broad and varied experience to draw upon in tackling drug problems, good data and relatively strong public institutions. In this it will have a much more useful role in being robust and assertive to member states about evidence based policy rather than continuing to try and represent the average of the 27 national approaches. Accordingly the EU Drug Strategy should include the following commitments:
1.5.1 To build and strengthen data and intelligence on drug use and policy responses, to improve understanding of policy impact and to be clearer and more assertive about good practice. This should include evidence of the efficacy of preventive, treatment and harm reduction policies but also incorporate firm recommendations about minimum levels of service;
1.5.2 To take opportunities for widening the debate about drug control. For example, responding to the call by member states for a ‘wider range of control options’ for new psychoactive substances;
1.5.3 To develop, as a priority, transparent monitoring systems by which to assess and review the impact of supply side interventions;
1.5.4 To adopt a critical and questioning role with respect to the continuing failures in supply side interventions at national level and be prepared to take a harm reduction approach to tackling drug supply. As a minimum priority the EU should take note of and act on guidance from the World Health Organisation (WHO) to ensure that enforcement practices do not impede the implementation of harm reduction services;
1.5.5 To examine, as a priority and report on prospects for different forms of regulation for psychoactive substances;
1.5.6 To build on its role as a potential world leader in developing drug policy by being assertive and proactive in world forums such as the UNODC, in disseminating good practice globally and ensuring that EU drug-related aid programmes to the developing world are based on evidence and harm reduction principles and represent a truly balanced approach.
1.5.7 To reflect the importance of a health focus in EU drug policy it should be made clear in a future Strategy that the lead role for Drug Policy should be transferred from the Justice to the Health and Consumers Directorate.
2. Scope of the submission
2.1 An assessment and discussion of the current EU drug strategy could be extremely wide ranging and take in a general critique of the role of European institutions in policy areas where substantial national responsibilities remain. Also the consultation paper invites comments on a number of points of detail about the strategy. The All Party Parliamentary Group for Drug Policy Reform was set up this year in response to widespread criticism of current drug policies at both national and international levels to promote evidence based, and health focussed approaches to the formation and implementation of drug policy. Accordingly, this submission will limit itself to a consideration of whether the EU drug strategy could have, actually did and could in the future support these general aims. The submission will summarise our understanding of what the EU Drugs Strategy is and then address 3 main questions.
· What could the Strategy expect to achieve in terms of impacting on drug harms given the levels of subsidiarity remaining in key areas of drug policy?
· Was the Strategy successful in meeting the goals and targets which it set itself and what lessons are to be learnt from that; and
· What would be necessary to get a strategy at European level to encourage evidence based and health focussed drug policies across Europe.
3. Our understanding of the Strategy
3.1 The period covered by the strategy is 2005-2012 with two supporting action plans covering 2005-2008 and 2009-2012. It is monitored by means of an annual report and it is currently being independently evaluated by Rand and Ipsos Mori with the report due in 2012.
3.2 The Strategy is based on the founding values of the European Union including respect for human dignity, equality and human rights. The Strategy is also based on the UN conventions stemming from the UN single convention on Narcotic Drugs (1961). The EC sets out its main areas of competency to complement the work of member states as:
• In public health - information and prevention to reduce drug related harm;
• Providing a framework for controlling international trade in precursors;
• Providing a framework to limit the laundering of money from the drugs trade;
• Co-operation between police, customs and judicial authorities to combat the drugs trade; and
• Dialogues on drugs with other regions of the world and its international development programme.
3.3 Overall the Strategy aims to provide added value to the work of member states. The strategy has as its overarching and general objectives to reduce availability of illicit drugs and to reduce the harms arising from drug use. The Strategy aims for a ‘balanced approach’ between demand reduction and supply reduction. The inclusion of support for harm reduction policies in 2005 represented a key development for Europe by comparison with the rest of the world. The two action plans are performance management devices to pursue the objectives of the strategy and are meant to include specific actions. That is:
- ‘Actions at EU level must offer clear added value and results must be realistic and measurable.
- Actions must be cost-effective and contribute directly to the achievement of at least one of the goals or priorities set out in the Strategy.
- The number of actions in each field should be targeted and realistic.’
4. The European Policy context
4.1 What is the European policy context within which the Strategy has operated?
4.1.1 Wide variation in policies and practices in respect of drugs between the 27 member states within the European Union.
4.1.2 An evolving relationship between the EU and member states following the Lisbon Treaty and continuing enlargement of the membership
4.1.3 For the institutions of the European Commission (EC) drugs is a cross-cutting issue with many directorates having an interest. These interests are reflected to a degree within the EU Drug Strategy (2005 -2012) and its two underpinning action plans. Nevertheless, drug policy (as for the UK and the UN) is seen first and foremost as a crime issue and the co-ordinating body for drugs within the EC is located in its Justice and Home Affairs Directorate
4.1.4 Europol is meant to co-ordinate co-operation and information exchange in the policing of drug supply across Europe
4.1.5 Discussion between member states on drugs issues is via a ‘Horizontal Group’ of government representatives
4.1.6 The European Parliament has a role in scrutinising and commenting on the Strategy, Action Plans and EMCDDA reports
4.1.7 Public Expenditure on drug policy is estimated as 34 billion euro.
4.1.8 Drugs are an important issue for the citizens (particularly young people) of Europe as evidenced in ‘Eurobarometer’ surveys.
5. What could the strategy expect to achieve?
5.1 The main responsibilities for drug policy and implementation remain at the level of member states. So the policing of drugs possession and supply in local and middle markets and the health response to problematic drug use are national phenomena. The EU has a clear competency in co-operation with respect to transnational, organised crime and (to a lesser extent with) public health issues. This is arguably then reflected in the dominant concerns of the EU strategy on questions of trafficking. However it is unclear why the EU strategy should take upon itself the responsibility within its strategy for having an impact on the prevalence of drug use across Europe (see below) when it is not in its gift as an institution to deliver on it.
5.2 A problem with the kind of performance management framework set out in the EU Drug Strategy is that it is not sufficient to give clear specific and measurable high level indicators (eg ‘measurable reduction in the use of drugs’). The indicators need to be accompanied by an understanding of the interaction between the measures deployed and the phenomena being targeted plus an awareness of any other influencing factors. Without these it is impossible to draw meaningful conclusions from trends in monitoring data either positive or negative. For the EU a further problem is that the impact of the EU contribution cannot be disaggregated from that of the member states. To try and ascribe responsibility between EU institutions and member states for any trends would also be extremely difficult.
5.3 Under the principle of subsidiarity each state determines its own policies, priorities and budget. A Strategy linked to the sum of national outcomes must therefore be broad enough to capture the divergent approaches of Sweden and Portugal say and facilitate a means for them to co-operate within Europe where commonality between their approaches can be identified. The consequence of this balancing act is that the EU does not address issues that might appear controversial. For example, 11 countries within the EU have or are developing policies which effectively decriminalise the possession of small amounts of drugs (usually cannabis) and others such as the UK use police discretion to rarely prosecute for possession of small amounts. But decriminalisation as such is currently not part of the discourse at EU level. The EU is prepared to publish reports of examples such as the Portuguese decriminalisation policy but not to open a debate about decriminalisation in a systematic way.
5.4 An area where the EU clearly has a role is in public health (see 4.2 above). In this area it could be reasonable expected that the EU would take a lead in promoting good practice in drug prevention with young people. The EMCDDA has, in the ‘Resources’ section of its website a considered and research-led assessment of the spectrum of prevention programmes being used. On the highly contested US ‘Drug Abuse Resistance Education’ (DARE) Programme it takes a cautious approach referring to negative research findings – ‘Several evaluations of programmes such as DARE (or similar), which are delivered by uniformed police officers, have shown the ineffectiveness of this approach…’. By contrast, the European Crime Prevention Network (ECPN) has on its website, as an example of ‘good practice’, the Hungarian ‘DADA’ project which has no outcome evaluation but - ‘was developed on the success and basic concept of the US D.A.R.E.’ The ECPN is an institution founded by the EU in 2001 and funded by member states following a Council decision in 2009. It is accountable to the Council of the European Union in reporting on its activities and effectiveness. Taking the EMCDDA and the EUCPN together it appears that different parts of the EU are presenting different messages on good practice in an important area of drug policy. Also, significantly different systems for assessing the quality of examples of good practice are in place. These anomalies should be addressed via the governance and implementation of the next EU drugs Strategy.
5.5 The EU has a clear role as a leader and influencer both in Europe and globally. For example, it has been a progressive force in international debates on drug policy and promoted harm reduction measures in world forums. Also it has had a role disseminating good practice in demand reduction around the world. However, it could be more assertive in addressing poor practices and unacceptable levels of key health services (including harm reduction provision) within member states. For example, according to the EMCDDA annual report 2010 – ‘ … only around 2 % of substitution treatments occur in the 12 Member States who joined the European Union since 2004.’ This demonstrates markedly different levels of treatment services available in different member states and represents an important challenge for the future drug strategy.
5.6 A much more universal problem for Europe is the health risks to those in prison. EMCDDA figures indicate that for most member states between 10 and 30% of sentenced prisoners are convicted of drugs offences; of those in prison half had previously used drugs and over a third had injected drugs. Although the health risks for those in prison (and immediately on release) are higher than the general population the health and harm reduction response across Europe is completely inadequate. Out of the member states (+ Norway and Turkey) only 12 have substitution treatment available in the majority of their prisons, 2 have full or extensive prison needle exchange programmes; 2 have full or extensive pre-release counselling for overdose risk; and 8 have full or extensive individual counselling on infection risk.
5.7 The problem is acknowledged in the EU Action Plan (2009-2012) Objective 9 (out of 24) which states ‘Provide access to health care for drug users in prison to prevent and reduce health-related harms associated with drug abuse’. Also, the EMCDDA have done valuable work in assembling the data which highlights this problem. The next step via the forthcoming EU drug strategy should be to prioritise action to tackle the health risks for this vulnerable group and to reduce the numbers placed in the riskier environment of prison. The EU could take a clear lead on this issue, based on its competency for public health and making full use of the mechanism of ‘Commission Review’ to influence national policy.
6. Was the strategy successful in its own terms?
6.1 We can identify successes in terms of the implementation of certain initiatives. However, the Strategy set itself a major target to reduce the prevalence of drug use but has dramatically failed to meet it.
6.2 The period covered by the current EU drug strategy (2005-12) has been one where there has been a significant increase in the numbers of those entering drug treatment. It is now estimated that there are over a million in treatment across Europe . This is chiefly due to national initiatives but it is arguable that a contributing factor has been the work of the EMCDDA with national focal points particularly those in new and applicant member states. This is one of the major positive developments for drug policy in Europe but has very little to do with the work of the Justice Directorate which is where the lead for drugs policy currently lies.
6.3 The creation (in 1994) and work of the European Monitoring Centre for Drug and Drug Abuse (EMCDDA) has been a success and good progress has been made in improving understanding of drug use, drug problems, and the impact of policy and programme responses. In particular, the EU have commissioned valuable reports which among other things have – ‘found no evidence that the global drug problem had been reduced in the past decade, but judged that the enforcement of drug prohibition had caused substantial unintended harms’
6.4 It is however, unclear why heroin assisted maintenance is not included in the EMCDDA database of treatment options or best practices even though it is being successfully delivered in Switzerland and member states Germany, Belgium, the Netherlands and the UK. Further, a Cochrane systematic review has concluded ‘heroin prescription should be indicated to people who (..) currently or have previously failed maintenance treatment’.
6.5 The EU strategy document also recognised that in 2004 previous policies had not had a significant impact. According to the final evaluation of the EU Drug Strategy and Action Plan 2000 – 2004 ‘the available data do not suggest that there has been a significant reduction in drug use prevalence or that the availability of drugs has been substantially reduced’ However, the Strategy did not seek to change the policy emphasis on prohibition and enforcement. Unsurprisingly, recent reports indicate that there has been little or no impact on prevalence since 2005. According to the EMCDDA annual report 2010 - ‘Overall, the data suggest that cannabis, in its various forms, may be becoming more rather than less available on the European market.’; ‘Data from a range of sources point to an overall stable to increasing opioid problem in the European Union since 2003/04’
6.6 After so many years of repeated failure to impact on the drugs problem surely it is time to take the obvious step to question and review current policies. Compare the EU role in public health focussed work on tobacco – ‘Since 1989 the European Community tobacco-control strategy has produced:
- three directives on tobacco taxation;
- three directives on tobacco advertising;
- two directives on labelling;
- one directive on tar yields;
- a re-casting of three earlier directives into one directive called the Tobacco Products Directive;
- eight health and safety at work directives restricting smoking in the work place;
- five non-binding resolutions and recommendations; (…..)
- adoption of the WHO Framework Convention on Tobacco Control (FCTC);
- and effective action against tobacco smuggling in some Member States.’
6.7 The list above demonstrates a clear role for the EU within its competence for public health. The Eu initiatives contributed to a persistent reduction in the use of tobacco up to 2009
6.8 The EU has seemed unwilling to tackle the poor monitoring of and lack of data for assessing supply side interventions. Originally, the objectives for ‘Measurable reduction of the use of drugs, of dependence and of drug-related health and social risks …’, set out in the Strategy were linked solely to demand reduction. Those for supply reduction were limited to processes eg ‘A measurable improvement in the effectiveness, efficiency and knowledge base of law enforcement interventions and actions by the EU and its Member States ..’ The Strategy was criticised (Roberts et al 2006) for not having clear objectives against which progress could be measured. Despite this and the greater ability of both the EU and member states to deliver on such outputs it has taken until October of 2010 for the first European conference to be held to develop indicators for drug markets, drug related crime and drug supply reduction By contrast a monitoring framework and standard indicators for drug treatment are well developed at European level.
6.9 The EU’s lack of success in developing means by which supply side interventions can be assessed has been, in part, balanced by its preparedness to support research which has begun to tackle the issue of drug supply. Accordingly, the Rand Corporation and the Dutch Trimbos Institute were commissioned by the EU to provide an assessment of global drug markets. The report published in 2009 commented that it had found no evidence that the global drug problem had reduced between 1998 and 2007, that drug policy had only a marginal positive influence on the problem, enforcement against drug markets in most countries failed to prevent continued availability at a lower price and that enforcement of drug prohibitions has caused substantial unintended harm. In the absence of the EU being able to assess the impact of enforcement against drug markets across Europe the report provides a clear indication of the need for a thorough review of current drug policies.
6.10 The EU Strategy claims to pursue a balanced and evidence based approach. In this it reproduces the rhetoric of many national strategies. However, ‘balance’ is taken to mean having elements of supply reduction and demand reduction within a strategy no matter how large or small. It doesn’t mean that there is a balance between the two. So, across Europe EMCDDA have provided estimates that combining estimates of ‘labelled’ and ‘unlabelled’, drug related expenditure on public order and safety has been almost three times more than drug related spending on health. ‘Labelled’ expenditure is that which is explicitly set out as drug related in national budget headings. ‘Unlabelled’ expenditure occurs within broader budget headings such as policing or prisons and represents a far higher proportion of drug related expenditure than ‘labelled’ expenditure.  The situation has improved during the life of the EU drug strategy with an overall increase in treatment availability (see 7.2) and a much wider acceptance of the need for harm reduction measures but there is a long way to go before the balance in drug policy favours health interventions.
7. The EU and new ‘legal highs’ – a case study in problems and possibilities
7.1 How do the main actors at EU level see their role? An illustration is provided by their response to new ‘legal highs’. It comprises three essential elements - It involves the exchange of information (early warning system) between Member States on such substances, their risk assessment and, if necessary, their submission to control measures and criminal sanctions across the EU. In the first place there is an entirely laudable role based on the sharing of intelligence about the emergence of new psychoactive substances and their potential harms.
7.2 However, there is a suggestion of inevitability about the need to use criminal sanctions to control such drugs. This is underpinned by a reminder in the references to Member States of their obligations under UN conventions - ‘under Article 3 of the 1988 UN convention against illicit traffic in narcotic drugs and psychotropic substances: ‘Each Party shall adopt such measures as may be necessary to establish as criminal offences under its domestic law, when committed intentionally’ the production, manufacture, distribution, sale, delivery, transport, importation or exportation, the possession or purchase of any narcotic drug or any psychotropic substance.’
7.3 Nonetheless, the assumption of the predominance of criminal sanctions is somewhat undermined by an acknowledgement later in the report that in response to a survey about EU policy on new ‘legal highs’ a large number of member states wanted to consider alternative methods of control - ‘The survey showed that a large number of Member States see the current lack of alternatives to criminal control as inadequate and point out that a wider range of options should be considered …’ The Report concludes - ‘The Commission sees the need for a comprehensive response at EU level, closing gaps between drugs control and other types of legislation, including food or product safety. In addition to criminal justice control measures, alternative risk management options would need to be assessed with a view to a faster response, at EU level, to the emergence of substances that raise concerns.’
7.4 For the All-Party Parliamentary Group for Drug Policy Reform the question of assessing alternative risk management options is a matter of urgency and it recommends that this is given priority in the forthcoming EU Drug Strategy.
7.5 Europe is the largest donor to third countries providing 60% of all development assistance so has the potential to be a key influencer in drug policy. The EU Drug Strategy identified assistance to third countries as one of its ‘External Relations’ priorities – ‘3. Assisting third countries, including European Neighbourhood Countries, and key drug producing and transit countries to be more effective in both drugs demand and drugs supply reduction …’ The 2009/12 Action plan undertook to assess progress against this objective by establishing a ‘a monitoring mechanism on EU drug-related assistance given to third countries’ and the production of an annual report. This has been abandoned; the reason given being lack of data provided by member states on national (as opposed to Commission) assistance programmes. The fact remains that the EU currently provides no monitoring of EU assistance programmes. Such information as has been provided by the EU indicated (where budgetary information was available) that in 2010 there were no assistance programmes purely for demand reduction, 35.55m euros worth of programmes comprising a mix of demand reduction and enforcement initiatives and 82.7m euros worth of purely enforcement programmes. The emphasis clearly remains on supply side enforcement and the EU objective to encourage third countries to adopt a balanced approach to drug policy is undermined when it remains a net exporter of inbalance.
8. Towards a future EU Drug Strategy
8.1 The UNODC discussion document 'from coercion to cohesion’ spells out clearly that drug addiction is a health problem and not a crime and represents a sign of potential change at UN level. The EU strategy needs to highlight and reinforce this new approach and actively promote evidence based health oriented practises such as the Swiss Heroin Treatment clinics and Portuguese decriminalisation of drug use combined with tough treatment requirements.
8.2 The EU should be in a strong position to promote change in drug policy. Its Member States have a broad and varied experience to draw upon in tackling drug problems, good data and relatively strong public institutions. In this it will have a much more useful role in being robust and assertive to member states about evidence based policy rather than continuing to try and represent the average of the 27 national approaches. Accordingly the EU Drug Strategy should include the following commitments:
8.2.1 Not only to build and strengthen data and intelligence on drug use and policy responses and to improve understanding of policy impact, but to be clearer and more assertive about good practice in prevention, treatment and harm reduction provision but also in recommending appropriate minimum levels of service;
8.2.2 Within its reporting mechanisms (which should be clear and transparent) the EU should adopt a critical and questioning role with respect to the continuing failures in supply side interventions at national level and be prepared to promote a harm reduction approach to tackling drug supply;
8.2.3 As a priority to examine and report on prospects for different forms of regulation for psychoactive substances;
8.2.4 To build on its role as a potential world leader in developing drug policy by being assertive and proactive in world forums such as the UNODC, in disseminating good practice globally and ensuring that EU drug-related aid programmes to the developing world are based on evidence and harm reduction principles;
8.2.5 Finally, to underpin a health focus for drug policy, the Strategy should make clear that the lead role for Drug Policy should be transferred from the Justice to the Health and Consumers Directorate.
Baroness Meacher, September 2011
 EU Action Plan 2005-2008, pp2
 EMCDDA (2008): Towards a better understanding of drug related expenditure in Europe
 Release (2011): A Quiet Revolution: Drug Decriminalisation Policies in Practice across the Globe (unpublished)
 http://www.emcdda.europa.eu/publications/perk/resources/step3/theory . The sources for this comment are given on the website as links - Ennett et al., 1994; Lindström et al., 1998. Unfortunately the links don’t work. It is likely that the first refers to: ‘Ennett, S. T., N. S. Tobler, C. L. Ringwalt, and R. L. Flewelling. 1994. "How Effective is Drug Abuse Resistance Education? A Meta-Analysis of Project D.A.R.E. Outcome Evaluations." American Journal of Public Health 84: 1394-1401’ and that a similar conclusion to the second can be found in Lindstrom, P.; Svensson, R. Evaluacion del programa preventivo D.A.R.E. en Suecia. [Evaluation of the Swedish school prevention program D.A.R.E.]. Adicciones 1999, 11, 373-385.
 HUNGARY-DADA project.pdf - 8 janvier 2007; on http://www.eucpn.org/goodpractice/showdoc.asp?docid=156
 European Monitoring Centre for Drugs and Drug Addiction (2010): Annual Report 2010: State of the Drugs Problem in Europe: Luxembourg: Publications Office of the European Union, 2010
 Montanari L, Hedrich D, Bo A, Guarita B, Carpentier C,Giraudon C, Royuela L, Wiessing L (EMCDDA)(2009):Monitoring drug use, health problems and responses in prison population in Europe: Presentation at ‘Good prison health, better public health, safer society’: Oslo 2009
 NOTICES FROM EUROPEAN UNION INSTITUTIONS AND BODIES: COUNCIL: EU Drugs Action Plan for 2009-2012: (2008/C 326/09)
 EMCDDA Monographs 10 (2010): Harm Reduction - Evidence, Impacts and Challenges: © European Monitoring Centre for Drugs and Drug Addiction, 2010
 General Secretariat, Council of the European Union: EU Drug Strategy (2005-2012): Brussels, 22 November 2004
 Idem 3
 Roberts M, Bewley-Taylor D, Trace M(2005): Facing the Future – The Challenge for National and International Drug Policy; Beckley Foundation Drug Policy Programme Report Six (2005):
 ‘In October 2010, the first European conference on drug supply indicators initiated work on the conceptualisation of technically sound and sustainable indicators in this area of key importance for European drug policy’ Drugnet Europe 75, EMCDDA, Lisbon, July 2011 http://www.emcdda.europa.eu/publications/drugnet/75
 Reuter P and Trautmann F (eds) (2009): A Report on Illicit Global Drug Markets 1998 – 2007: European Communities 2009 http://ec.europa.eu/justice/anti-drugs/files/report-drug-markets-full_en.pdf
 Idem 2
 Idem 16
 EC: REPORT FROM THE COMMISSION on the assessment of the functioning of Council Decision 2005/387/JHA on the information exchange, risk assessment and control of new psychoactive substances: Brussels, 11.7.2011 COM(2011) 430 final : http://ec.europa.eu/justice/policies/drugs/docs/com_2011_430_en.pdf
 EC: Commission staff working paper on the assessment of the functioning of Council Decision 2005/387/JHA on the information exchange, risk assessment and control of new psychoactive substances: Brussels, 11.7.2011 SEC(2011) 912 final: http://ec.europa.eu/justice/policies/drugs/docs/sec_2011_912_en.pdf
 Idem 10
 Europeaid annual report 2008: European Commission 2008
 Idem 14
 Idem 10
 COMMISSION STAFF WORKING DOCUMENT (2010):accompanying the REPORT FROM THE COMMISSION on the Mid-Term Review of the implementation of the EU Drugs Action Plan (2009-2012
Amendment to the Police Bill
On Thursday the 16th June Baroness Meacher moved an amendment to Clause 152, Schedule 17 of the Bill which introduces a capacity to take out ‘temporary class drug orders’ (often referred to as ‘temporary banning orders’) for new psychoactive substances by amending the Misuse of Drugs Act 1971. The amendment was intended to promote a debate about alternative forms of regulation and to introduce specifically a consideration of the Intoxicating Substances (supply) Act 1985 which was designed to limit the access of minors to solvents and more generally ‘enactments of trading standards. After a good debate with a number of supporting contributions Baroness Meacher withdrew the amendment with a view to discussing the detail of the implementation of Schedule 17 with the government. (see Briefing below)
Briefing on the Police Reform and Social Responsibility Bill – Clause 152, Schedule 17 – Temporary Banning Orders
What is being proposed?
Clause 152, Schedule 17 of the Bill introduces a capacity to take out ‘temporary class drug orders’ (often referred to as ‘temporary banning orders’) for new psychoactive substances by amending the Misuse of Drugs Act 1971. A summary of what is in Schedule 17 can be found in a Home Office briefing on temporary banning orders : (http://www.homeoffice.gov.uk/publications/alcohol-drugs/drugs/temporary-bans/temporary-class-drugs?view=Binary)
Key points include:
• Those caught in possession will not be prosecuted under a temporary banning order but all such drugs may be seized. However, as the Bill stands, at the end of the temporary banning order, as the Bill stand, legal highs will fall under the control of the Misuse of Drugs Act, thus criminalising drug users.
• Offences of production, importation, exportation and supply will remain.
• Temporary banning orders (‘Temporary class drug orders’) will be in force for 1 year.
• The Advisory Council for the Misuse of Drugs (ACMD) should be consulted before an order is taken out. This will necessarily be an opinion on the part of the ACMD as there will not be time to carry out a systematic review of such evidence as exists about the harms associated and potentially associated with a new drug or commission any robust primary research about its effects.
· Normally it takes 3 to 6 months for the ACMD to assess available evidence about a drug and up to 2 months for the current method of parliamentary approval – Privy Council Orders - to take effect. By contrast, it normally takes five years to assess a medicine before it is approved for use. We do not believe the ACMD will be able to assess ‘legal highs’ adequately in the time available.
New ‘legal highs’ are being produced and marketed at an unprecedented rate. According to the European Monitoring Centre for Drugs and Drug Addiction (EMCDDA) an unprecedented 41 new psychoactive drugs were produced last year. According to the Home Office there were 600 drugs controlled by the Misuse of Drugs Act in 2010. The phenomenon of new ‘legal highs’ is characterised by: - chemical synthesis rather than the processing of a natural product; the use of the efficient and difficult to regulate internet for marketing and sales; a context of increased cultural acceptance of drug use and; deception and confusion about new drugs as they may be mixed together and mislabelled.
United Nations Office on Drugs and Crime (UNODC ) estimates on worldwide drug use are:
· Between 3% and 6% of the world’s population used illicit substances in 2008 – 80% of these used cannabis
· Chemically synthesised drugs including amphetamines, ecstasy and ‘legal highs’ are second in popularity after cannabis
· There are between 16 million and 38 million problem drug users worldwide
There have been two influential new reports, published recently, which advocate alternative systems of regulation for new drugs to prohibition as a means to minimise harms and promote public health. They are ‘Taking Drugs Seriously’, produced jointly by the United Kingdom Drug Policy Commission and the think tank Demos and ‘Controlling and Regulating Drugs’ a review of the New Zealand Misuse of Drugs Act 1975 commissioned by the New Zealand Government and carried out by the New Zealand Law Commission.
‘Taking Drugs Seriously’ argues for ‘greater consideration to controlling the supply of new psychoactive drugs through the wide range of consumer protection legislation…’
‘Controlling and Regulating Drugs’ recommends for new drugs that prohibition should be considered as a last resort and makes a number of very specific recommendations about an alternative system of regulation. These start with the requirement that ‘anyone who wishes to manufacture, import or distribute a new psychoactive substance … (should) apply for an approval for the substance before doing so.’ It is further proposed to administer this system by creating the post of Regulator who would decide to approve a new psychoactive drug using a number of criteria including: the nature of any harms involved; how possible it is to regulate the drug; the likely consequences of any proposed regulation or prohibition and; potential effects on other drug use. As with other systems of regulation, controls would be in place in terms of advertising, the age of customers, approved locations for sales and so on.
Responses to the proposal for temporary banning orders
A question on temporary banning orders was included in the consultation carried out by the Government on its proposed drug strategy last year.
According to the report on the consultation: (http://www.homeoffice.gov.uk/publications/consultations/cons-drug-strategy-2010/consultation-responses?view=Binary)
(As far as temporary bans are concerned)
· ‘’[The Government should consider] “Clear evidence of harm as deduced by the drugs advisory committee, rather than political reasons/public outcry”
· “The Government should look into the results of research [and] listen to experts.”
These points appear to have been rejected by the Government. In the earlier scrutiny stage of the Police Bill, James Brokenshire, Home Office drugs minister argued:
The impact of domestic and international prohibition policy on levels of consumption and production globally is key in any meaningful assessment and analysis of the 1971 Act. We do not accept that meaningful figures can be ascribed to the likely public and individual health cost or that it is possible to properly assess the impact of drugs on productivity and industry or on industrial or traffic accidents. Those fundamental difficulties point up the question of whether the task is an appropriate use of research funding. In our judgement it would not be proper use of public money.
According to ‘Taking Drugs Seriously’ prohibition can exacerbate drug harms, driving supply into the hands of criminals who are prepared to risk breaking the law to realise substantial profits, who constantly adapt distribution and are prepared to sustain profits by cutting their drugs with potentially harmful substances. Users wishing to stay within the law may turn to other less tested and potentially more harmful substances. For example, some of the drugs that have been substituted for mephedrone (a ‘legal high’ made a Class B controlled substance in 2010) are understood to be considerably more powerful (eg naphyrone also banned in 2010)
Current systems for regulating substances.
It is perhaps not fully realised that alongside the Misuse of Drugs Act 1971 there are already a range of regulatory instruments used to control the supply and use of substances and developed in a pragmatic way to respond to specific challenges. The range of controls includes:
· MDA; used to control both a range of substances used recreationally and drugs used medicinally and recreationally; (Not always a prohibition - possession of the Class C drug Anabolic Steroids is legal in a medicinal form for personal use)
· Intoxicating Substances (supply) Act (1985) (developed to control access to solvents, which are widely available for industrial and commercial use – understood to be successful in getting manufacturers to make their products safer and getting retailers to ensure that availability is restricted in respect of minors)
· Consumer protection and trading standards (currently used to protect public health in relation to alcohol and tobacco)
· Foodstuffs controls (currently used in relation to caffeine and the stimulant khat)
· Medicinal Controls (Medicines Act) (used in relation to Morphine and Amyl Nitrites (Not controlled under the MDA ,probably due to their extensive use in industry, although used recreationally as ‘poppers’)
Points of argument
· Enforcement strategy against an increasing range of synthetic drugs will be complex and costly. Unlike heroin, cocaine and cannabis. They can be made close to their markets with shorter distribution chains. They cannot be detected by remote sensing at the point of growth. Control would need to incorporate control of precursors.
· Banning drugs does not reduce usage. The failures of the War on Drugs are well documented. The limited evidence on Mephedrone after its ban in 2010 suggests that it is still widely available and that the majority of those who report using it tried it after the ban.
· A significant driver in the search for new legal highs is prohibition. As more and more drugs are prohibited yet more will be developed as it is preferable to suppliers to be able to use legitimate means for distribution and sale but with little opportunity to test for harms.
· Another driver in the growth of markets for new legal highs is understood to be a concern about the lack of purity of ecstasy and cocaine and the consequent harms from impurities
· The time frame for temporary banning is such that it is unlikely that the ACMD will be able to access fully such research on harms as may be available and effective research becomes much more difficult once drugs are driven underground by banning orders.
· Temporary banning orders are very likely to turn into permanent ones. It will be very difficult to reverse a temporary ban. First is the issue of reviewing prosecutions and convictions undertaken during the temporary bans once the drug is legalised. Second, it is unlikely that in one year robust research could be undertaken which could conclusively establish a banned drug’s safety and without such evidence making a drug legal could be seen as irresponsible.
· Overall, the pace of development of legal highs, their proliferation and the lack of impact of prohibition on the prevalence of drug use so far point to the need to think of alternatives. The policy of temporary banning orders could be compared to efforts to control smoke by clutching at it.
 Birdwell J, Chapman J, Singleton N (2011):Taking Drugs Seriously: A DEMOS and UK Drug Policy Commission Report on Legal Highs: DEMOS, London May 2011
 Law Commission (2011): Controlling and regulating drugs: a review of the misuse of drugs act 1975: Report 122, Law Commission, Wellington, New Zealand: April 2011
 Op cit (1)
 McElrath and O’Neill: ‘Experiences with Mephedrone pre- and post- legislative controls’
 Mixmag drug survey 2011