A view from the House

It’s rare to get insights into the realpolitik of parliamentary drug policy making. Matters of Substance took the opportunity to invite this guest editorial from Green member of Parliament and drug policy reformer Nandor Tanczos, who recently announced his retirement from parliament at the end of this term.

Drug policy can be a frustrating area to work in. It is characterised by legislation that is incoherent, arbitrary and often counterproductive. It is subject to enormous political influence, and most people have strong, often fixed, views on the subject

Even so, I find it hard to accept that the problem of evidence-based drug policy is intractable.

The issues are complex, but no more complex than for most social policy. Despite a systematic bias in international research funding, we now have a reasonable body of evidence on which to base policy.

We have local experience in developing successful elements, such as our campaigns to cut drink-driving and the smokefree legislation. These can give us useful pointers to what effective drug policy might look like.

We have world-class research being conducted in this country, which has helped elucidate the effects of current policy and which can help to monitor and evaluate any changes.

There is also a wealth of international experience to draw on in attempting to evaluate the likely effects of different legislative regimes. While cultural factors will affect those outcomes, we are not entirely blind in addressing problems.

So why does the development and implementation of rational, evidencebased drug policy appear so problematic? The short answer is politicians. Or, to be more accurate, an adversarial political system that rewards headline grabbing at the expense of collaborative policy making or evidence-based decision making.

We have had some notable advances towards getting it right. The National Drug Policy published in 1998 was a significant step forward, in promoting harm minimisation and respect for individual rights among the principles for policy development and in explicitly recognising the negative consequences of criminalising drug users.

The Inquiry into the Mental Health Effects of Cannabis chaired by Brian Neeson in 1998 was initiated in response to media panic around cannabis and mental health. It surprised many by stating categorically that the dangers of cannabis had been largely exaggerated and that its illegal status prevented people needing help from seeking it.

The Misuse of Drugs Act amendments of 2000 provided a fasttrack process for classifying drugs, but crucially set out clear statutory criteria by which substances would be classified. It established the Expert Advisory Committee on Drugs (EACD) to make recommendations on drug classifications, providing hope that drug policy in New Zealand would no longer be driven by political agendas, but by evidence.

These developments gave cause to believe that an evidence-based approach to policy making, able to take into account the effects of the policy itself, was on the way.

However, that promise has not eventuated.

I won’t go into detail on the disappointment of the Health Committee Inquiry into the Legal Status of Cannabis set up in 2000. Suffice to say that, by stalling its report until after the 2002 election, the government ensured that it would not make a clear recommendation. Labour’s post-election agreement with United Future prevented that, and in any case, by the time it reported, only two members of the committee had heard any of the evidence.

The Expert Advisory Committee on Drugs has also been a disappointment. Until recently, it has been difficult to get information about its work, despite dissemination of that information being one of its statutory responsibilities. It has also clearly been politically influenced in its decision making, most obviously with regard to its decisions on LSD and BZP.

In fact, it is BZP that provides the best example of how progress has been stymied by political agendas. When Minister Anderton was first confronted with the growing use of piperazines, he asked the EACD to have a look. It identified that the law as it stood provided no framework to regulate a new recreational drug, apart from banning it, and the evidence did not support doing that.

A new schedule to the Misuse of Drugs Act was introduced on the suggestion of the Greens in 2005. It offered a chance to do something very innovative – to establish a regulated legal market for a recreational drug from its introduction, with strong restrictions on age, advertising, point of sale and so on. It was an opportunity to test the harm minimisation potential of a regulation model on a substance with a relatively low risk of harm.

However, it has now become apparent that the minister never intended for it to work like that. He has always seen the Restricted Substances schedule as a holding pen, providing some regulation while enough evidence can be gathered, or massaged, to support a ban. The fact that the minster did not make full use of his regulatory power under the Act confirms that.

Piperazines have now been made illegal, following a recommendation by the EACD. The decision to declare piperazines a ‘moderate’ as opposed to ‘low’ risk is difficult to justify on the evidence. Deciding that a substance with ‘moderate’ risk of harm should be made illegal is also difficult to justify on the evidence, and no attempt at justification has ever been provided by the EACD for recommending search without warrant powers on any substance, although I have asked them for it.

The EACD has clearly come under significant political pressure on BZP. In fact, the minutes of 3 May 2007 state that:

“One Committee member expressed disappointment at not being able to attend the meeting held on 29 November 2006. He was surprised that the Committee felt the pressure to make a conclusion on partial data.”

The committee denied any pressure but said:

“…there was plenty of public interest… Members were aware that the current status quo was not acceptable and therefore the main options were further regulation or classification as a controlled drug.”

Not acceptable to whom?

An additional problem is that the representation on the committee is strongly biased towards law enforcement solutions. One of the three key reasons behind the recommendation to schedule BZP as a class C drug was “the recreational context of BZP use and lack of therapeutic purposes”. This distaste for (non-alcohol) recreational drug use should not be the basis for reclassifying a drug.

It appears from the minutes that the committee also gave considerable attention to a submission by Jacqui Dean, an MP campaigning against party pills, on the basis that:

“It was useful for the Committee to have an understanding of the public’s views on the impact of BZP on communities. Jacqui Dean had provided the Chair with a submission on BZP and had met with the Chair and EACD… with the Minister’s approval.”

While it is proper for the committee to hear from interested parties, that should be done impartially. The committee cannot arrive at an understanding of the public’s views on the basis of a talk with a crusading MP. No opportunity was provided for alternate views, either through ministerial approval or directly by the committee.

I doubt the minster would have accepted any outcome apart from a ban on piperazines. The campaign by Jacqui Dean put huge pressure on a minister who had campaigned against drug use in previous elections. In addition, he holds a conservative electorate, in a city where the industry behaves least responsibly.

The not unusual irony is that the battle to demonstrate who was most ‘tough on drugs (users)’ simply showed how similar Jim Anderton and Jacqui Dean are on these matters. MPs who share that authoritarian world view feel free to campaign on drug issues. MPs that do not generally prefer to keep their heads down. They have seen what happens to MPs with a taste for drug law reform.

However, conservative politicians and a conservative media do not represent the public in this. In addition, the Neeson inquiry demonstrated how an open and collaborative approach can lead to good evidence-based outcomes. The problem with the current model is that, unless a campaign gains significant public momentum, decisions get made as a result of political arrangements rather than open public debate.

The Law Commission review of the Misuse of Drugs Act has the potential to spark the kind of public debate needed. It is vital that we have a collective rethink about what we are trying to achieve in drug policy, just as the UN is now doing.

My enthusiasm for that is tempered by caution, following the Commission’s treatment of the issue of search without warrant powers under the Misuse of Drugs Act, in its review of search and seizure in New Zealand. I hope it takes this opportunity to rectify its rather casual attitude to those draconian search powers in that review.

But we must find better ways of engaging the public more generally on difficult issues. I am strongly of the view that most people, provided with good information, a diverse bunch of people to discuss it with and enough time to work it through, will arrive at good decisions. Engaging ordinary people, and organisational representatives, in designed processes such as citizens’ juries, has great potential for further discussion of difficult and politically contentious issues, in a way that seems difficult for politicians schooled in an adversarial parliamentary system and reliant on product differentiation for votes.

Nandor Tanczos is a Green Party Member of Parliament. First elected in 1999, he recently announced his retirement at the end of this 48th Parliament.