Way back in the early 90’s there were several attempts to prove that cannabis couldn’t actually be illegal, that the law was not only “immoral in principal and unworkable in practice” as the famous 1967 petition in the Times put it but was actually in and of itself illegal. A book was even published by “The Family Council on drug awareness (FCDA)” entitled “The Report” which set out a legal argument which was claimed to be a defence against a criminal charge bought under the Misuse of Drugs Act (MDA).The FCDA site explains:
Cannabis is officially exempted from all legislation, regulation or control founded on ‘harm’ criteria. All private cultivation, trade, possession and use are vindicated. Based on the research-established esoteric Empirical Evidence, THE REPORT is an authoritative insight into the real, but concealed, illegal reason behind Prohibition: ulterior money-motive.
This was taken up by several poor souls who went like lambs to the slaughter, defending themselves with all the confidence of sleepwalkers.
There have been several other attempts to prove the illegality of making cannabis illegal over the years, all of which have got nowhere at best, or at worst resulted in prison terms. The whole approach had become an example of the definition of stupidity – the idea that if something didn’t work, all you have to do is to keep trying and eventually it will.
So it was a feeling of “oh no, not again” that greeted a post to the UKCIA forum from “Sunshine band” imploring us to “Stop saying ‘legalise cannabis’ ”
Every time someone says ‘legalise cannabis’, ‘illegal drugs’ etc they create an equal and opposite reaction to their expressed wish. The key is in the language, we are fooled – really truly and it is NOW time to change language. When you think about it you will slowly realise that cannabis or any controlled drug is an object – objects are NEVER legal or illegal.
Oh dear, here is someone else telling us cannabis is not really illegal – and it’s not just on our forum, he’s been popping up all over the interweb with this argument over the past week or so. The government certainly doesn’t agree, as the Home Office will tell you in their standard letter they send out to anyone asking for cannabis law reform
The Government’s message has always been that cannabis is a harmful and illegal drug that should not be taken.
However, Darryl Bickler – his real name – comes from the “Drug Equality Alliance” with the wonderful acronym “DEA” which is at present making a very interesting case against the application of the MDA. Darryl’s argument is not that the MDA is a bad law at all, indeed the DEA supports the principles that underpin the act, but that the law is being misapplied. The argument that cannabis is not illegal may seem semantic and at first hearing in plain English terms it is, but we are talking about the law here and the law works by strict definitions.
As Darryl explains
Drugs are controlled under law, so that human actions concerning them are criminalised such as the actions / states of being such as production, cultivation, importation, supply and possession – these are property offences. It is not the property which is illegal, it is what you do with it. Nobody could legalise cannabis because it doesn’t have a status – sure we all know what you mean – but the meme you create is one of legality / illegality. In fact the law does not describe drugs in this way, they are ‘controlled’.
Ah yes, “controlled drugs”, that old chestnut, of course the one thing you can’t claim is that cannabis is in any way “controlled” by the present laws, but we’ll leave it aside for the moment.
Darryl has a site on Facebook where the argument is expanded, but essentially it isn’t drugs that are illegal, restrictions are imposed on what we’re allowed to do with them and that is correct in law.
We need to go back to the intention behind the MDA. The act sets out to control drugs which are likely to cause harm through abuse by imposing these restrictions on property rights, ie restricting the trade or possession of them. So far so good and indeed the act itself is thus quite reasonable and few would argue with the basic intention. The problem comes when politicians decide what constitutes a “drug” and what doesn’t – and of course what constitutes “control”.
Alcohol and tobacco are not included in the MDA because they are not listed (or “scheduled”) as drugs which should be included and this is where it gets messy. These two drugs are not scheduled for cultural reasons, yet there is no provision in the MDA for such an exception. Truth is, when they wrote the act the people who wrote it were all alcohol and tobacco users who didn’t consider themselves to be drug users. Drugs were something foreign people or weird subcultures used, the distinction is not only arbitrary but also discriminatory and hence the law is being misapplied. This is why we often see the totally absurd phrase “alcohol and drugs”, as if there is some distinction – alohol isn’t really a drug is it?
This is a very powerful argument in reality and can only be understood if, as Darryl explains, the fine distinction in the use of the English language is understood. Cannabis, the plant product – or indeed any other drug – are not in themselves illegal, they can’t be because objects cannot be subjected to the law.
The problem of course comes with the distinction between English as she is spoken and English as she is used to draft laws and such distinctions are easily lost. After all, if you get sent down for growing a plant then it would seem logical to assume the plant is an illegal one, and so any law reform campaign should set out to change that. But in reality the thing that’s illegal is the act of growing the plant. So the phrase “cannabis law reform” is correct, but “legalise cannabis” isn’t.
However, English as she is spoken is very important because it conveys whole concepts and this is nowhere more important than with the use of the word “control” in the context of drug law. The free dictionary defines control to mean
con·trol (kn-trl)
tr.v. con·trolled, con·trol·ling, con·trols
1. To exercise authoritative or dominating influence over; direct. See Synonyms at conduct.
2. To adjust to a requirement; regulate: controlled trading on the stock market; controls the flow of water.
3. To hold in restraint; check: struggled to control my temper.
4. To reduce or prevent the spread of: control insects; controlled the fire by dousing it with water.
5.
a. To verify or regulate (a scientific experiment) by conducting a parallel experiment or by comparing with another standard.
b. To verify (an account, for example) by using a duplicate register for comparison.n.
1. Authority or ability to manage or direct: lost control of the skidding car; the leaders in control of the country.
2.
a. One that controls; a controlling agent, device, or organization.
b. An instrument or set of instruments used to operate, regulate, or guide a machine or vehicle. Often used in the plural.
3. A restraining device, measure, or limit; a curb: a control on prices; price controls.
4.
a. A standard of comparison for checking or verifying the results of an experiment.
b. An individual or group used as a standard of comparison in a control experiment.
5. An intelligence agent who supervises or instructs another agent.
6. A spirit presumed to speak or act through a medium.
The MDA defines drug control as restricting the rights of people to do things with these objectes, not the objects – the drugs – themselves. It would therefore seem reasonable to argue that drugs covered by the MDA are not actually “controlled substances” as such. Does this matter? Well, yes it does and not just because it’s being used to lock people up.
The government constantly goes on about “sending messages” about drugs. The message they are sending is simply not true: Drugs are not in and of themselves actually illegal and they are not themselves actually controlled.
This is important because “illegal drugs” (sic) so obviously are not “controlled drugs”; anyone can see that because there is no control over the vast and highly profitable trade in them, there is no control over what is sold and so on. A commodity – which is what drugs are – cannot be said to be controlled unless the trade in that commodity is controlled. We can all see the hypocrisy surrounding so-called “drug control” and this misuse of the English language is at the heart of it. It conveys concepts which do not exist, which people then wrongly argue can’t be changed. It also explains how drugs like cannabis which are classed as “controlled” are in fact totally uncontrolled and yet drugs like alcohol which are not classed as “controlled substances” are in fact regulated by some very strict controls.
What we have is drugs which are subjected to restrictions on property rights and no more. It’s also a concept which is not an easy one to explain either, which probably explains why the whole law is in such a mess.
The DEA argue there is nothing wrong with the MDA, that as a concept it’s a good act, but that it is being misapplied by politicians and they have a good point. The MDA should certainly include alcohol and tobacco and should set out to properly control the trade in these substances. What we have now is a total mess.
So Darryl is right to argue there is no such thing as illegal drugs, we should go to the next stage and argue there is no such thing as a “controlled drug” under prohibition either. “Control” requires a legalised and regulated trade in that substance. The problem at the root of all this is prohibition.
Illegal drugs do not exist – a Facebook campiagn. Drug law may never be the same again!
Amended Post:
This ‘Illegal Drugs Do Not Exist’ campaign seeks to transform the language drug policy reformists (and indeed everyone else) uses in discussing current policy and for creating a new possibility (a clearing if you like) for a sensible regulatory framework for all harmful drugs.
No-one is suggesting that by transforming the language you create a legal defence to a drug-property charge (that is something we are working on through legal argument with the Drug Equality Alliance). What this is about is creating the possibility of bringing more sensible policies into being by recognising how the power of words can trap us. Law is nothing more than words, perhaps reality is language too.
Derek has introduced the point about ‘illegal drugs’ and I wish for people to follow the debate on the Facebook Site and link to the discussions I have been having with Transform and the various objections. The language of possibility is a tool which not only exposes the problems with current drug policy, but is also something which can rescue the spirit of positivity from the ashes of widespread grumpy cynicism. Perhaps the mood of low horizons was caused significantly by the tedious and dismissive governmental responses to petitions, campaigns, well-written reports and indeed hard evidence. When the government present intractability as their strength and say that they will never change track, this is a profoundly disheartening and disengaging phenomenon. It is a slap in the face to everyone who knows what the real problems are – to those who work with support services who see their clients dying from heroin contamination, health workers in A&E departments swamped by problems caused by alcohol abuse as well as to campaigners who work in the realm of ideas who seek to shift policy through reasoned debate. These stubborn responses are legally described as the fettering of discretion by decision-makers; such is an anethema to the principles enshrined in the MDA. We assert that the government are abusing their power; this constitutes a common-law breach of ministerial duty to administer the law properly (the challenge is to the administration of law by government to be precise, not the application as such, it is the courts who apply the law.)
Whilst correcting minor points in Derek’s most welcome piece, I would say that we should not refer to alcohol and tobacco not being included in the MDA. He does explain this later, but it is preferable to say that those drugs are indeed covered by the MDA, but have not been scheduled under that Act (despite being entirely within the ambit of the Act that seeks to ameliorate the social harm caused by ANY drug). When Derek intimates that perhaps the fact that the Parliamentarians who drafted this law did not consider themselves drug users, and thus did not schedule those drugs at that time is probably true, but they did create a neutral law that envisaged an evolutive instrument that would adapt with best evidence. They did not exclude any drug, and it is fair to say that as the evidence of the huge cost (financial and health) caused by alcohol and tobacco misuse has now been revealed, that there is no justification for the adaptive provisions of the MDA NOT bringing in these drugs, certainly as a priority over some of the more eclectic so-called ‘legal highs’ for example. We should remember that the law does not mandate the prohibition of ‘controlled’ drugs; powers exist to adapt the law to any situation. We should expect differentiation between peaceful use and misuse of drugs with the law we have, indeed, it is hard to imagine how the Act’s policy and objects could be carried out without so-doing.
This is why the government are happy to create a language of prohibition and use false expressions such as ‘illegal’ and ‘legal’ drugs to perpetuate the lie of the status quo being nothing more than an expression of the law, as opposed to it being a mere policy. Current administration is absolutely discriminatory as applied by the courts, it failes to offer equal treatment across the board as causes harm to users and others both sides of the artificial divide in drug scheduling.
Let us not fall into the trap of using their words. I wrote to Danny Kushlick at Transform about this recently – I urge a complete re-think of the disabling language. Let’s not focus on global and economic forces that are outside of our direct control – we must enrol people into what they can really do for this project – to believe that we can make a difference, we can, we must. Let us not make predictions about changes occuring in many years time as part of a gradual shift in policy – the victims and people in prison deserve the transformation as of yesterday, let us not say that the government’s can do what they like – they must obey the law too, and we can create the impetus not only for democratic pressure for a new policy, but also expect that our most senior judges will also do their duty and stop the abuse of power that pervades the global drug policy.
I accept Derek’s point about the word controlled absolutely – I only use it in the context of what the law set by Parliament has given us (and I will always point out that the notion of illegal drugs is meaningless and does not exist in law anywhere). I think we can use the word, but to introduce the points Derek makes, that it is a paradox – control only exists at the most formal level that offences exist in connection with these drug-related activities – certainly no control really exists at ground level. The word the law gives us though does open the door to regulation more than the fixed and intractable notion of ‘illegal drug’ – one worthwhile aspect of the notion of control is it’s aspirational quality of proportionate flexible and adaptive measures intended to bring about a (sensible) result – exactly what Parliament promised us with the MDA.
Sunshine Mate you are indeed a Ray of Sunshine
Brother, in ways people are only getting to grips with. Ive read your points over at Transform for the past couple of days. In a strange way i always knew what you mnet before
you said it but you have brokn threw the language barrier, The Freedom of all People need your fine Toughts and Reason. 100percent
Well Done. Your onto a winner and you know it!
One LOve Declan .
Most excellent work Darryl. For those interested in the nuanced legal argument that encapsulates the error of law the Secretary of State makes in acting as if illegal drugs exist, then see Casey Hardison’s ‘Grounds of Appeal against Conviction’ and the ‘Arguments in Support of Grounds’ at drugequality.org
We should never forget that real people are serving time over the discrimination at the heart of drug law administration. And remember, word creates world! Fiat lux!
Shamelessly promoting freecasey.org cause he deserves it!
Hmm tricky.
I’m sure someone’s said this before but if people want to take cannabis legally can’t everyone just set up a religion, not to worship cannabis, that’d be silly, just in a way that reinforces its status (like Alcohol and tobacco as cultural).
If Jedi is a religion because a certain number of people said it was surely the same would work for pot (I’m sure it’d have a bigger following). Jedi’s can wear hoods in the jobcentre supposedly, Sikhs can carry daggers, potheads should therefore be able to take cannabis.
Facebook anyone. I apologise for any obvious floors, the idea just occurred to me.
It has been tried – Rastafarians are the obvious example.