What is legalisation?

In general, legalisation is meant to indicate that the supply and possession of currently illegal drugs, should be legally controlled in the same way that alcohol or tobacco are controlled in most countries. Decriminalisation is often meant to indicate a half-way house’ between legalisation and prohibition – in that, for example, possession of drugs for personal use would not be a criminal offence, but might be the equivalent of getting a parking ticket.

Drug law reform has re-emerged on the international and domestic policy agendas. More drug use by younger people and the connection with crime have taken the debate beyond cannabis. International conventions allow countries to impose only minor penalties for possession. Several have used this flexibility to withdraw from enforcing some laws. Arguments over legalisation cover individual freedom versus the duty of the state, the harms caused by current laws, how legalisation would work, and the health consequences.

After stewing on the political back burner for some 20 years, the issue of liberalising drug laws has re-emerged on the international policy agenda, to the point where recently the UN International Narcotics Control Board felt the need to refute the arguments in its annual report.

Malleable convention

One reason why more radical law reform proposals have been dismissed is the value placed on maintaining international solidarity in the fight against drug misuse. All the major industrialised nations of the West are among the 109 signatories to the 1961 UN Single Convention on Narcotic Drugs which obliges signatories to make possession and other drug-related activities involving a range of drugs (heroin, cocaine, cannabis, etc) ‘punishable offences’.

This has been interpreted to mean no major relaxation of the drug laws is possible unless the nation concerned opts out of the convention. However, the official commentary to the convention is clear that nations have wide latitude in the interpretations of this provision as it applies to possession. Some have taken it to mean that ‘possession’ refers only possessing the drug in the course of drug trafficking, not personal use; others have deemed fines “or even censure” as punishment enough for simple possession.

So while the convention is an obstacle to the legal possession and supply of currently illicit drugs, it appears that it is no barrier to the imposition of only minor penalties for possession. Signatories need consider imprisonment only for ‘serious offences’. Several legislatures have used this flexibility to mould the convention’s provisions to their own local cultures and legal systems.

Real world experiments

Netherlands
In Holland, the 1976 Opium Act tripled the penalties for dealing but an administrative framework was established which allowed the de facto legalisation of possession. For cannabis only, the drug was allowed to be sold from designated premises. Recently Holland has come under intense pressure to revise its policies.

Other European countries
The Spanish, Portuguese and Italian authorities have given the possession provision of the UN convention its most liberal interpretation. In Spain personal possession of any drug is not a criminal offence. Italy reverted punishes possession of drugs for personal use only by administrative’ sanctions. Belgium has also relaxed its laws in relation to cannabis possession. In October 2021, Luxembourg became the first country in Europe to legalise growing and using cannabis.

USA
In the ’70s 11 US states reduced penalties for personal possession of cannabis. Alaska allowed cultivation for personal use and held that it would be unconstitutional to bar its citizens from smoking cannabis in their own homes.

It is in America that the legalisation battle lines have been drawn most prominently. In the 1980s despite an ever-increasing budget, law enforcement agencies failed to stop widespread use of cocaine and the violence and massive profits for organised crime that followed in its wake. Probably the cocaine issue more than any other prompted a catholic spread of opinion (including academics, journalists, politicians, lawyers and law enforcement officers of both liberal and conservative persuasion) to argue that US drug policy had to be reconsidered. Their motivations are as disparate as their professional interests from civil liberties and reducing social and legal harms caused by prohibitionist laws to crime prevention. Preventing the spread of HIV as a rationale for liberalising drug laws has not been a major feature of the American debate. However, it has been thoroughly integrated into the European debate which has seen the formation of pan-European organisations dedicated both to the rolling back of the drug laws and to their maintenance or strengthening.

Canada
Canada made the decision to legalise cannabis for adult (non-medical) use in 2018. The Cannabis Act was the first time that a major industrialised country had chosen to create a legal, regulated market in what had been a prohibited drug for over ninety years. An analysis of the successes and problems of this decison can be found here.

South America
Uruguay was the first country in the world to legalise recreational cannabis. President José Mujica signed legislation to legalize recreational cannabis in December 2013. In August 2014, Uruguay legalized growing up to six plants at home, as well as the formation of growing clubs, a state-controlled marijuana dispensary regime, and the creation of a Cannabis regulatory institute.

Point and counterpoint

The debate is complex more than simply a question of ‘Do we legalise or not?’. What degree of reform are we talking about? What is the likely impact on society of the different options? How many more people would use drugs? At what point would this increase be unacceptable? Should the opportunity be taken to also rationalise controls on alcohol and tobacco? The list goes on …

The arguments generally break down into four areas:

• the freedom of the individual versus the duty of the state; in particular the application of the European Court of Human Rights Act;
• the perceived harms caused by enforcing current laws;
• how a legalised control regime would work; the potential health harms consequent on drugs being more freely available.
• The major themes in these areas are outined below; each pro-legalisation argument (italics) is followed by an anti-legalisation reply (normal text).

1. The individual and the state

The individual is entitled to conduct him or herself any way they wish so long as no harm is done to others. This principle of personal choice, and an individual’s right to privacy (privacy clause under the European Court of Human Rights Act), is applied to a wide range of private activities and should also apply to the drugs use. If harm is caused by drug use (eg, harm to family, committing crimes, etc) the state can rightfully act against that harm, but not against drug use per se.

The state has a duty to protect its citizens even from themselves. Witness the laws relating to the seat belts and motorcycle helmets. Government must look to the greatest good of the greatest number even at the expense of personal liberty. Society cannot possibly benefit from maximising the chances of its citizens becoming intoxicated. And if drug use is supposed to be a matter of personal choice’ how much choice does the drug addict have?

2. The harm from current laws

The worst aspect of prohibition is the way it hits the user. Many have been saddled with criminal records or even sent to prison just for possessing drugs. Enforcement of the drug laws causes tensions between the police and otherwise law-abiding citizens especially in the sensitive area of race relations. Users have to come into contact with criminal networks to obtain drugs. We should at least legalise possession for personal use. Prohibition brings in its wake violence and corruption on a huge scale while making massive profits for organised crime.

Anybody who uses illegal drugs knows the price of getting caught. People have to take responsibility for their actions. Decriminalisation legalising possession for personal use might be even more damaging than legalisation. It would do nothing to undermine the illicit market while introducing more people to drugs. Users would still have to contact criminals to get their drugs it’s just that there would be more of both.

For all the billions spent on enforcement, it doesn’t work use of illegal drugs is going up all the time.

Despite their faults, the laws against drug use prevent even more people becoming involved.

3. How would it work?

Legalisation would transfer huge revenues to government by way of taxation on what would then be legal commodities, while wiping out the illegal market and all the problems it brings. Eradicating the illegal market would also bring enormous savings in the costs of enforcement, criminal justice and imprisonment. Many Western governments are wedded to the merits of free market forces and know how difficult it is to ‘buck’ the markets. Yet they unrealistically believe they can use the law to suppress the illicit market in drugs.

How realistic is it to imagine drug syndicates would melt away if drugs were legalised? Given the prevailing economic and political ethos of the West, it is most unlikely that legalised drugs would become state monopolies. The drug business would become just another lucrative legal investment for organised crime much as now happens in the entertainment industry (gambling, hotels, etc).

A legal market would ensure that users were getting drugs produced under proper manufacturing conditions with quality control, etc.

Illegal manufacturers will still sell adulterated products because these will be cheaper than the legal alternatives, which will almost certainly be highly taxed to curb use. For example, unlike tobacco, cannabis can be grown anywhere, so there is every chance that the illicit market will continue, undercutting heavily taxed legal supplies.

We would be able to control legal supply more easily than illegal supply and stop drugs reaching the young or vulnerable. An unregulated market would be replaced by a regulated one.

The reform lobby goes on about legalisation without answering practical questions like: Which drugs? Who is going have access to what? How do you control manufacture and distribution, the time and place of sales, marketing and sales to minors, etc? And how successful have we been at stopping alcohol and tobacco being used by the young?

4. Health impact

Whatever health harms might be caused by drugs, the harms caused by the drug laws are much worse. We can only improve the situation by legalising.

What if you were wrong? After legalisation it would be very difficult to cut consumption, however disastrous the result. A ban could be re-imposed, but many people who had been introduced to drugs during the legal period would carry on using them. We would be in a worse position than before.

More availability doesn’t equal more use cannabis use did not escalate in the US states which decriminalised the drug in the ’70s. Nor does more availability mean more addiction. During the Vietnam war many US soldiers used heroin regularly; most stopped when they returned. Heroin was easy to obtain, but the main reason soldiers used it was because they were in a war situation. Once they got home, they didn’t use it even though they could have done so.

That’s wishful thinking. More availability does mean more use and that means more problems. What the Vietnam experience shows is that when drugs are freely available, more people will use them, and more will become addicted. You only have to look at the numbers who smoke and drink as opposed to those who use illegal drugs to know this must be true. Then look at the massive problems we already have from tobacco and alcohol. There is good evidence that the more alcohol drinkers there are, the more become problem drinkers.

What constitutes a dangerous drug is simply a value judgement that changes across cultures and eras. At various times since the Middle Ages, drinkers of alcohol and coffee and smokers of tobacco have been subjected to draconian punishments for their indulgences. At the same time, cannabis, heroin and cocaine had (and still do have) legitimate medical uses.

The laws against drugs reflect the fact that people can get into serious health and social problems with drugs like heroin and cocaine far quicker than with alcohol and tobacco. It is a major flaw in the argument for blanket legalisation to treat all drugs the same. There are significant pharmacological differences between drugs and to suggest, for example, that crack is the same as coffee is ridiculous.

Despite our knowledge of their harmful effects, alcohol and tobacco are freely available why not other drugs?

Even if illegal drugs were only’ as harmful as alcohol and tobacco, why make even more harmful drugs available?

The attempt to ban alcohol in America in the 1920s was a prime example of how the law harmed people’s health. Many died through drinking bathtub gin’ and other poorly made alcoholic drinks.

From a public health point of view, Prohibition was more successful than generally assumed. The number of heavy users fell as did the incidence of cirrhosis only to rise when alcohol was re-legalised.

Given credible information, people will avoid using drugs they believe are dangerous, just as many have reacted to the knowledge that smoking can kill.

So it seems particularly invidious to encourage the use of other smokable drugs, such as cannabis. This could undo the good that has been done through anti-smoking education.

By making cannabis illegal and treating it the same as heroin and cocaine, we undermine the credibility of drug education in the eyes of young people.

Any government legalising cannabis would be sending out the message to society that intoxication is OK.