A blanket ban on psychoactive substances makes UK drugs policy even worse

It is a truth under-acknowledged that a drug user denied possession of their poison is in want of an alternative. The current ‘explosion‘ in varied and easily-accessible ‘legal highs’ (also know as ‘new psychoactive substances’) are a clear example of this.

In June 2008 33 tonnes of sassafras oil - a key ingredient in the production of MDMA – were seized in Cambodia; enough to produce an estimated 245 million ecstasy tablets. The following year real ecstasy pills ‘almost vanished‘ from Britain’s clubs. At the same time the purity of street cocaine had also been steadily falling, from over 60% in 2002 to 22% in 2009.

Enter mephedrone: a legal high with similar effects to MDMA but readily available and for less than a quarter of the price. As the quality of ecstasy plummeted (as shown by the blue line on this graph) and substituted with things like piperazines, (the orange line) mephedrone usage soared (purple line). The 2010 (self-selecting, online) Global Drug Survey found that 51% of regular clubbers had used mephedrone that year, and official figures from the 2010/11 British Crime Survey estimate that around 4.4% 16 to 24 year olds had tried it in the past year.

Similarly, law changes and clampdowns in India resulted in a UK ketamine drought, leading to dabblers (both knowingly and unknowingly) taking things like (the once legal, now Class B) methoxetamine. And indeed, the majority of legal highs on offer are ‘synthetic cannabinoids’ which claim to mimic the effect of cannabis. In all, it’s fairly safe to claim that were recreational drugs like ecstasy, cannabis and cocaine not so stringently prohibited, these ‘legal highs’ (about which we know very little) probably wouldn’t be knocking about.

Still, governments tend to be of the view that any use of drugs is simply objectively bad, so the above is rather a moot point. But what anxious states can do, of course, is ban new legal highs as they crop up. However, even this apparently obvious solution has a few problems— the first being that there seems to be a near-limitless supply of cheap, experimental compounds to bring to market. When mephedrone was made a Class B controlled substance in 2010, alternative legal highs such NRG-1 and ‘Benzo Fury’ started to appear. In fact, over 550 NPS have been controlled since 2009. Generally less is known about each concoction than the last, presenting potentially far greater health risks to users.

At the same time, restricting a drug under the Misuse of Drugs Act 1971 requires evidence of the harm they cause (not that harm levels always bear much relation to a drug’s legality), demanding actual research as opposed to sensationalist headlines. Even though temporary class drug orders were introduced in 2011 to speed up the process, a full-out ban still requires study, time and resources. Many have claimed the battle with the chemists in China  is one lawmakers are unlikely to win.

And so with all of this in mind, the Queen’s Speech on Wednesday confirmed that Conservatives will take the next rational step in drug enforcement, namely, to simply ban ALL OF THE THINGS.

In order to automatically outlaw anything which can make people’s heads go a bit funny, their proposed blanket ban (modelled on a similar Irish policy) will prohibit the trade of ‘any substance intended for human consumption that is capable of producing a psychoactive effect’, and will carry up to a 7-year prison sentence.

Somewhat ironically for a party so concerned with preserving the UK’s legal identity it wants to replace the Human Rights Act with a British Bill of Rights, this represents a break from centuries of British common law, under which we are free to do something unless the law expressly forbids it. This law enshrines the opposite. In fact, so heavy-handed and far-reaching is the definition of what it is prohibited to supply that special exemptions have to be granted for those everyday psychoactive drugs like caffeine, alcohol and tobacco. Whilst on first glance the ban might sound like sensible-enough tinkering at the edges of our already nonsensical drug policy, it really is rather sinister, setting a worrying precedent for the state to bestow upon citizens permission to behave in certain ways.

This law will probably (at least initially) wipe out the high street ‘head shops’ which the Daily Mail and Centre for Social Justice  are so concerned about. However, banning something has never yet simply made a drug disappear. An expert panel commissioned by the government to investigate legal highs acknowledged that a 50% increase in seizures of Class B drugs between 2011/12 and 2013/14 was driven by the continued sale of mephedrone and other once-legal highs like it. Usage has fallen from pre-ban levels, but so has its purity whilst the street price has doubled. Perhaps the most damning evidence, however, comes from the Home Office’s own report into different national drug control strategies, which failed to find “any obvious relationship between the toughness of a country’s enforcement against drug possession, and levels of drug use in that country”.

The best that can be hoped for with this ridiculous plan is that with the banning of absolutely everything, dealers stick to pushing the tried and tested (and what seems to be safer) stuff. Sadly, this doesn’t seem to be the case – mephedrone and and other legal and once-legal highs have been turning up in batches of drugs like MDMA and cocaine as adulterants, and even being passed off as the real things.  Funnily enough, the best chance of new psychoactive substances disappearing from use comes from a resurgence of super-strong ecstasy, thanks to the discovery of a way to make MDMA using less heavily-controlled ingredients.

The ASI has pointed out somanytimes. that the best way to reduce the harms associated with drug use is to decriminalise, license and tax recreational drugs. Sadly, it doesn’t look like the Conservatives will see sense in the course of this parliament.  However, at least the mischievous can entertain themselves with the prospect that home-grown opiates could soon be on the horizon thanks to genetically modified wheat. And what a moral panic-cum-legislative nightmare that will be…

Don’t fear the trade bill

We do admit we find this all rather amusing. We’ve all been shouted at for months now that the transatlantic trade deal (and various others under discussion) will allow such evils as tobacco companies suing if they are deprived of their intellectual property as a result of plain packaging. Thus we must reject said trade deals. And then this happens:

One such measure is the introduction of plain cigarette packaging – a policy that David Cameron’s successful spinmeister and tobacco lobbyist, Lynton Crosby, thankfully failed to block. But now the tobacco companies are fighting back, suing the government for up to £11bn on the basis that it would constitute “deprivation of a highly valuable intellectual property”.

This is an absurd example of how the law values property over people. Our government is democratically elected. Yes, that rightly means there have to be checks and balances, and policies must abide by the existing framework of the law. But if the law enables tobacco companies to extort £11bn from the government – money, ironically enough, that could be used to treat people suffering from tobacco-related illnesses – then the law is wrong. If the law does not value people’s lives and wellbeing over the rights of tobacco companies to make profit from cancer sticks, then the law is morally bankrupt.

This privileging of corporate interests over democracy is only going to get worse. The Transatlantic Trade and Investment Partnership – a treaty being hammered out between the EU and the US with woefully little scrutiny – could grant companies the same legal rights as nation states, enabling them to sue elected governments in secret courts to block policies that dent future profits. And sure enough – using a similar treaty – Philip Morris sued the Australian government for the same policy. It used the same tactic against Uruguay’s government for enlarging health warnings on cigarette packages.

How it is going to get worse if these provisions are already in domestic law?

At which point we can point out the two important points here.

The first is that the law, rightly, contains provisions on such things as eminent domain, just as it contains provisions of rights to property. The government can indeed confiscate property on the grounds of greater national need. It can force you to proffer up your house for the building of a railway line. It can force you to give up your business to the government. That is, nationalisation is entirely legal under both domestic and international law. However, that right to property part also means that the government must pay full market value for that property that it is taking (and the Americans have it even more anchored in their law as “a taking”).

This is of course as it should be. If the value of that railway line, that nationalisation, even that imposition of plain packaging, is sufficiently large in the national interest then there must be, from the value added by the scheme to make it sufficiently large in the national interest, enough to compensate the original values of the properties. Moving an asset from a lower to a higher valued use is the very defintion of wealth creation after all: so, if we are indeed adding that value then some can be used to compensate.

This argument also works in reverse: if there is not the value being added to compensate those original owners at that original price then the scheme is not in fact value adding. If that plot of land as a place for a house is worth £200,000, but it’s only worth £20,000 as part of a railway line then that railway line is not value adding: it is value subtracting, thus something that makes us poorer.

So too with plain packaging. We’ve no idea whether the £11 billion is a realistic number or not: but we do insist that if plain packaging is in fact value adding then it must be possible to compensate those having their property confiscated to reach that goal. Otherwise, if the value isn’t there, then the scheme itself is not value adding. If that’s true, then why are we doing it?

Which is one of the values, over and above the civil liberty of secure property rights, why such a legal position is so useful. It insists that those who talk up the value of a scheme actually have to prove, by providing the cold hard cash, the value of that scheme.

The second point is about those tribunals and so on. Given that these rights already appear in UK domestic law there’s nothing to fear from our signing a treaty that also includes them. It would be like our signing a treaty that insists that murder is a crime. Yes, we agree, so why not sign?

However, there are places out there not so blessed with a largely honest and largely reasonable legal system. And treaties are always reciprocal: what we agree to domestically the other side is also agreeing to in their domestic arena. So, the real value of the treaty (ies) is that it extends those rights which we have, as Britons, to those who have the unfortunate circumstance of not being Britons. And quite why this is a bad idea escapes us.

Discrimination and the free market: hardly a piece of cake

We read this week that a judge has ruled that a Christian-run bakery discriminated against a gay customer by refusing to make a cake with a pro-gay marriage slogan. I’m uncomfortable with this particular legislation. Some people have been claiming that such a ruling is a victory for anti-discrimination proponents. The irony seems lost on them – that there is still discrimination going on – it’s just that in this case the discrimination is against the Christian couple running the cake shop.

The Christian couple’s view on homosexuality isn’t one I share, but I defend their right to choose to run their business according to their own religious beliefs and values, and in this case the State should do likewise.

Disapproving customers are free to walk away and shop elsewhere. They are even free to share their disapproval on social media and encourage others to join them in shopping elsewhere. Such responses are powerful in business, because they put pressure on socially undesirable behaviour, and they penalise discriminatory business owners with lost custom, diminished profits, and in extreme cases, bankruptcy.

Any law that makes it illegal to run a business according to your religious beliefs is a law that infringes on the liberties of the business owners in a way that is, in my view, socially undesirable. Saying that, however, doesn’t mean I think all anti-discrimination laws are undesirable – far from it. They just need to be applied more prudently.

As always, society involves tension between a) accommodating people’s right to hold views and beliefs, and b) protecting others from unwanted discrimination. It is probably socially desirable for a racist café owner who wants to put a ‘No Blacks’ sign on his door to be forced not to discriminate. But at the other end of the spectrum it is also socially desirable for another café owner to be allowed to discriminate against under 65s by offering a pensioner discount on Wednesdays and Thursdays. In this case, I prefer the café owner’s right to introduce pensioner discounts over any societal claims that under 65s are being discriminated against.

The question the cake shop case elicits is where on that spectrum do religious views sit? I think people’s religious views should not be legislated against in business such that their freedoms are encroached upon in ways that are unacceptable. It’s quite clear to me that if the choice is between a) forcing a businessperson to make/sell a good they do not wish to, or b) compelling a dissatisfied customer to use another business, it’s a no-brainer that society should prefer the latter. A law that effectively wants to commandeer someone’s bodies and cake-making facilities is to me far more repugnant than the offence these Christian bakers are supposed to have committed.

One final point: the market does a very good job of weeding out discrimination. Suppose racist Jim opened up a shop in 1960s apartheid South Africa but wouldn’t serve any of the majority blacks – he obviously shoots himself in the foot because his restricts his trade options to a minority few and excludes the majority of potential customers.

In short, in a free market it pays not to unfairly discriminate, because whether on large scale or a small one you’re going to limit your potential custom. The more socially undesirable your discrimination, or the more people your discrimination negatively impacts, the worse it will be for you. It is no coincidence that the time at which humans started to trade was also the time that we started to become more civilised and improved our methods of co-existence.

To be able to trade in any age, and in particular, the modern age, you need to be able to think of others; firstly, by coming up with something (goods, services, entertainment) that others want; and secondly, by being honest, ethical, friendly, and developing a good reputation for your business. Far from being a vortex of selfish, uncaring and unethical behaviour, free markets necessitate qualities that make trade conducive, with your success dependent (in most cases) on your being a reputable person who welcomes all and treats everyone well.

The paradox of opportunity cost

It does get a little tiresome to be told, yet again, that too much choice is bad for us. Because of course we’ve been told this before: it’s the cry of every bureaucracy everywhere, don’t worry about what you’re being given just accept what we’re willing to offer you. It’s also deeply rooted in basic economics, in the concept of opportunity cost:

Once, when I was suffering a fit of depression, I walked into a supermarket to buy a packet of washing powder. Confronted by a shelf full of different possibilities, I stood there for 15 minutes staring at them, then walked out without buying any washing powder at all.

I still feel echoes of that sensation of helplessness. If I just want to buy one item but discover that if I buy three of the items I will save myself half the item price, I find myself assailed by choice paralysis.

OK, depression can be serious but other than that, seriously? Modern society’s gone wrong because we have a choice of washing powders?

The solution apparently is:

So how should one react to complexity? Schwartz suggests we should limit choice, not extend it. If you are shopping for food, go to supermarkets that are priced simply with a limited range, such as Aldi and Lidl. Recognise and accept complexity – which means accepting that you can never be sure that you’ve made the right choice.

Above all, don’t fall for the old trope of only wanting “the best”. Schwartz calls such people “maximisers” – people who are never happy, because they have expectations that can never be met, since in a world of complexity and unlimited choice there is always a better option. Be a “satisficer” instead – people who are happy to say “that’s good enough”, or “it’ll do”.

Well, quite. Maximisation of utility is an interesting concept to be pursued through economic models but out here in the real world we all in fact satisfice. Even if you just want to put it down to the tautologous maximisation of utility by not having to pay too much attention to details of choice.

However, to opportunity cost. The true cost of anything is what we must give up in order to have that thing. So, the real cost of this mortgage is the not having a mortgage, the not having that other type of mortgage. The true cost of jam with toast is not having Marmite with toast and so on and on. So, as the choices available to us rise then the opportunity cost of any one of them rises. And thus, yes, it really is true, more choice makes us unhappier.

To which, of course, the usual answer from the usual quarter is that we should have less choice and thus we’ll be happier. But that’s not quite how it works. For consider this.

There’s long been a difference between male and female happiness rates. Women, in general, have always reported higher satisfaction rates than men. In recent decades that gap has been closing. No, men aren’t becoming happier. Women are becoming less so, closing that gap. And what has been the great societal change over those decades that this has been happening? Quite: the life choices of women have expanded massively over that time, those of men not so much.

Do we think that such an increase in female unhappiness (or, rather a decrease in reported levels of happiness) is a reason to turn back the feminism clock? No, we most certainly don’t, do we? And therefore nor is the unhappiness caused by having to choose one washing powder a reason to restrict the choice of washing powders.

There’s very few who would publicly argue that a modern relationship should be based on “good enough” or “that’ll do” despite the fact that near all of us are descended from generations of such relationships. Given that then why should we restrict what we may put on our toast?

There is no such thing as free speech

In my view there is no coherent, cohesive thing we can point to and call ‘free speech’. The traditional libertarian approach—speech is free unless violently interfered with (whether by the state or others)—is inadequate.

You don’t feel free to speak if you are going to be shouted down or subject to torrents of abuse, even if none of this is physical. You don’t even feel free to speak if you will be hated or even just less well liked. You wouldn’t feel free to say something if your friends were going to stop inviting you out or if your firm would stop employing you.

On the one hand, this just means that freedom of speech conflicts with your employer’s freedom to hire who they like, or your friends’ freedom of association, or people’s basic freedom to like who they want.

But it also conflicts with freedom of speech itself. Stopping me from saying my true views about what you say may make you more free to speak but it is itself an interference in my freedom of speech.

I think that no society has or could have complete freedom of speech, you can only choose to protect certain kinds of speech. For example, patterns of speech we (i.e. our laws and courts) decide count as threats, incitement, harassment, abuse, hate speech, and so on, are not permitted in the UK.

And we do permit lots of other actions by the public at large that limit people’s perceived freedom of speech: for example we allow people to be rude or mean on Twitter, we allow friends to tell their friends they respect them less when they’ve said things they don’t like.

Our society might have made the right choices: in practice this means stuff like racist speech is forbidden, homophobic and sexist speech is becoming forbidden, as well as all the obviously unpleasant harassment and abuse mentioned above.

By contrast older versions of our society allowed racist speech but effectively banned blasphemy, whether through the law or polite society. They also banned public allusions to homosexuality, graphic sex and whatnot. On our modern values, these older prohibitions seem silly whereas current prohibitions stop genuinely dangerous speech.

People take a ‘thick’ view of freedom of speech when their position is weak. They tend to think that violence isn’t the only thing that can restrict speech—losing a job or friends can too. But when they are strong they often resort to the ‘thin’ account, like xkcd 1357. I don’t think this self-serving tendency is deliberate, but it’s easy to come to when there is no single hard-to-challenge conception at the heart of the free speech idea.

It’s fine to say that the words ‘free speech’ just mean some or other conception, e.g. the libertarian conception. If so, I don’t think the concept ‘free speech’ is useful as a way of thinking about experienced freedom in speech. I’m happy to use another word or phrase to talk about the concept we should care about, i.e. feeling and being able to say important things.

But there is no conception that captures all of our intuitions about things we are and aren’t free to say; leaving us all free to say absolutely everything we want. In the end all societies can only choose to protect some speech, while necessarily banning others—whether through the law or social pressure—to achieve that goal.