Drugs have not been legalised, Mr Hitchens, but they should be

In the Mail on Sunday, Peter Hitchens has repeated his claim that drugs have been effectively legalised in Britain. The article - titled 'You can't prosecute Nigella - cocaine's been legalised' - offers as Exhibit A the fact that Nigella Lawson is unlikely to be prosecuted for her self-confessed use of cocaine and cannabis.

...the courts and the politicians who stand behind [the police] finally admit the truth about their drugs policy.

It is a great big, stinking lie. They have legalised the use of cannabis and cocaine (and of heroin too). The supposed laws against drug possession are not enforced unless the police are absolutely compelled to do so by the persistence or stupidity of the offender.

I am not quite sure what the legal basis for a prosecution would be in this case. I suspect that an admission of drug-taking, even under oath, would not be sufficient to prosecute someone for possession. I think that drugs would have to be found on the person by a police officer. Be that as it may, I am pleased that she will not be prosecuted for her victimless crime and I hope that nobody else is prosecuted for such an offence ever again. Hitchens, on the other hand, believes that nobody should take drugs and that far fewer people would do so if the laws were enforced more vigorously.

Hitchens' view of drug prohibition is much the same as the Anti-Saloon League's view of alcohol prohibition in the late 1920s - that it could still work if only the police made an example of people by flinging them into jail.

I don't believe that such an approach will work. Indeed, it manifestly has not worked in countries such as Russia, Iran and the USA which have pursued the war on drugs with single-minded ferocity. (Hitchens would, I expect, find reasons to say that none of these countries have prosecuted the war on drugs to his satisfaction either. When I once asked him which country - aside from Maoist China - had properly enforced drug prohibition, he offered Sweden, a country which actually does the opposite of what he wants by treating drug use as a medical problem and rarely sending offenders to prison.)

Britain's failure to lock up every petty drug user does not mean that there is no prohibition or that drugs are legal. I realise that Mr Hitchens has no control over his headline writer, and on this occasion he limits his claims of legalisation to the consumption and possession of drugs, but he has repeatedly stated that there is no prohibition of drugs in this country. As the blurb of his book on the subject states...

Whatever and whoever is to blame for the undoubted mess of Britain's drug policy, it is not 'prohibition' or a 'war on drugs', for neither exists.

Since the term "the war on drugs" has no definition, it is rather pointless arguing about whether Britain has been fighting such a war. I am happy to agree with Hitchens when he says that those caught in possession of small quantities of controlled substances are rarely punished to the full extent of the law. Alex Massie recently provided figures showing that convictions for drug offences are very common, but if Hitchens wants to argue that there are too many cautions and too few custodial sentences for it to be a true "war" then I am prepared to concede that point.

But words like "prohibition", "decriminalisation" and "legalisation" do have clear definitions and Hitchens does the debate a disservice by switching between them so casually. According to the 18th Amendment, "prohibition" meant that the sale, import and manufacture of alcohol was illegal. The consumption and home production of alcohol was not. The UK's current drug laws are, therefore, more draconian than were the laws against alcohol during Prohibition. Hitchens' claim that there is no prohibition of drugs today rests on the assertion that the police do not arrest people for doing things that were never illegal under Prohibition - an assertion that is untrue in any case.

Hitchens says that the laws are barely enforced and that therefore the prohibition is meaningless. If it was true that people caught with drugs for personal use were rarely, if ever, prosecuted, there would indeed be de facto decriminalisation. It would not, however, mean that there was no prohibition, nor would it mean that drugs were de facto legal. Their sale, import and manufacture would still be illegal, and even Hitchens does not claim that drug barons, drug mules and drug dealers are let off with a slap on the wrist.

This is more than an argument about semantics. By asserting that drugs have been effectively legalised, Hitchens sidesteps one of the main weaknesses in his argument. Legalisers like myself argue for repeal of the drug laws not because we think it will result in fewer people taking drugs (we don't), but because the current prohibition puts drug users at unnecessary risks from unregulated and adulterated substances. Moreover, it has created a vast crime wave, from the thieving smackhead to the Mexican drug lord. None of this will be alleviated by decriminalisation (ie. legalising the possession of drugs for personal use), let alone by the de facto decriminalisation that Hitchens claims - wrongly - is in existence in the UK today.

Having convinced himself that there is no prohibition, Hitchens can breezily dismiss the harmful effects of prohibition (for if there is no prohibition, how can it have any effects?) Instead, he attributes the damage wrought by prohibition to the failure of policy-makers and police officers to pursue a war on drugs (a war that could not be effectively fought without resorting to the apparatus of a police state).

Meanwhile, another batch of unregulated pills masquerading as Ecstasy claimed their first victim yesterday. These 'Speckled Rolex' pills are not to be confused with the PMA pills - also sold as Ecstasy - which have killed 23 people this year. None of these people would have died if drugs were regulated, manufactured and sold in a legitimate and legal market.


(You can watch me debating this subject with Peter Hitchens at the IEA here.)