The emergence of mephedrone triggered a growing disquiet in the UK about ‘legal highs’: new psychoactive substances that have been manufactured and are made widely available in an uncontrolled and unregulated way to purchase in outlets and on the internet.1 Unlike cocaine and ecstasy, which have been studied for decades, the effects of these new substances are unknown and untested. This uncertainty combined with easy accessibility presents a major challenge and a potential risk to public health and public order.

And yet they are emerging almost weekly. The Daily Telegraph reported that data presented to the Independent Scientific Committee on Drugs showed 40 new substances had emerged by the end of 2010, a new record.2 In 2009, a previous record 24 new synthetic psychoactive substances were identified.3 There are now over 600 substances controlled under the Misuse of Drugs Act (MDA) in the UK.4 With the emergence of manufactured ‘legal highs’, this number is set to increase drastically.

The ability of traditional approaches to drug control to keep pace with these changes is now in question. As quickly as policy makers make new substances illegal through the MDA, others are being manufactured and put on the market. The danger is that the next substance to emerge could be more dangerous than the previous one. And the speed with which they emerge leaves little time for experts to assess their potential harm. Since the majority of these drugs are produced in China and sold on the internet, their distribution and manufacture are extremely hard to regulate. In the UK, enforcing drug control laws is made increasingly difficult and costly, as only advanced scientific analysis can distinguish between the multitude of white powders and tablets. Moreover, traditional approaches to drug control based on criminal enforcement can actually exacerbate the harms caused by these drugs. For example, making new substances illegal leaves the trade in the hands of unregulated criminals who constantly adapt their methods of distribution and sustain profitability by cutting their drugs with potentially harmful substances.

As the MDA turns 40 years old this year, this report investigates whether twentieth-century drug control legislation is fit for the twenty-first-century drugs market.

Drug policy is a ‘wicked issue’

The challenges posed by new psychoactive substances provide an opportunity to look afresh at drug control policy without recourse to a rerun of older and redundant debates about whether to be ‘tough or soft’ on drugs. Debate about drug policy tends to reinforce the perception that there are only two extreme options for policy makers: controlling drugs strictly through the MDA with strong enforcement and punishments, or legalising them. Those on each side of the debate present their view as offering the single, most successful solution to the ‘drug problem’ and drug policy. Yet evidence for the effectiveness of either approach is thin on the ground.

The issue is one of framing. If drug policy is framed as ‘a war on drugs’ then it is either won or lost and requires a level of national sacrifice (wars are won or lost). If it is framed as the ‘drug problem’ then there is an implicit assumption that there is a ‘solution’ (problems have solutions). An alternative way of looking at the issue is to use systems thinking and consider drug policy as a ‘wicked issue’ to which there is no solution, and no winners or losers. Instead, one seeks an improvement to policy that will be supported by people who otherwise disagree about what is wrong and what the goals of policy are.

A new way forward

This is the aim of our project: to demonstrate the potential benefits of taking a different approach to considering control of new substances, framing it as a ‘wicked issue’, and using soft systems techniques to show that it is possible to identify areas for action that people from both sides of the drug control debate can agree would improve drug control policy.

To achieve this we convened two innovative soft system workshops with 12 different key stakeholders attending each.

Participants included senior civil servants in relevant government departments and agencies covering enforcement, health, medicines, young people, education and consumer protection, as well as pharmacologists and chemists, frontline workers from a variety of charities, a young person peer mentor and advocates from lobbying organisations from opposite sides of the drug control debate. Together, these stakeholders examined the key issues for control of new psychoactive substances (also known as ‘legal highs’) in a way that reflected their differing perspectives. They identified areas of agreement about the elements of the ‘problem’ as well as options for action.

The project also involved an international review undertaken by Professor Peter Reuter to look at the regulatory approaches to drugs and new psychoactive substances taken elsewhere, plus interviews with a wide range of experts in the UK.

Our soft system workshops approach demonstrated that it is possible to get people to reconsider their perspectives, give greater recognition to other viewpoints and find consensus on ways forward. In keeping with the view that drug control is a problem with no single solution we do not claim to have provided the definitive answer for drug control policy. However, the findings provide valuable insights on how and where policy direction might be aligned with expert opinion and emerging evidence.

Key policy issues

The project highlighted that:

· When analysed from an international perspective, the latest wave of new psychoactive substances has thus far been localised: there have only been instances in a few countries where a new drug has rapidly risen in prevalence on par with other illicit substances.
However, there are signs that their sale and use is spreading and will continue to grow.5

· The cost of enforcement is likely to rise substantially and/or the law become increasingly unenforceable with the number of substances classified through the MDA rising dramatically.

· There is a fundamental and growing bias in the political and regulatory system towards prohibition as a default option. This is despite there being no conclusive evidence that classifying a substance through the MDA reduces overall harms. This bias may unintentionally increase harms, in addition to leading to substantial financial costs in the criminal justice system.

· Information about the nature and effects of new substances is a key issue for everyone involved in the drugs field: policy makers, enforcement agencies and those engaged in providing prevention and treatment. Yet knowledge about the new substances becoming available is very poor and controlling a substance under the MDA makes collection of the necessary information to make genuinely informed decisions more difficult. Without information on new substances as they become available, the Government becomes susceptible to influence from media campaigns and political pressures demanding action at critical junctures.

· There is a wide range of different pieces of legislation besides the MDA which can be utilised for controlling new potentially harmful substances.

· The number of substances now controlled (over 600) and the multiplicity of ways in which this is done is confusing and appears often inconsistent, inefficient and ineffective.

· There are a number of potential benefits to taking a step back and producing a simplified overarching control framework, such as a Harmful Substances Control Act along the lines proposed by the New Zealand Law Commission.6

Implications for policy

The policy recommendations that emerged from the project suggest three broad principles for improving drug policy and a number of specific actions. The latter are in no way comprehensive but illustrate how a new approach might be used to identify ways to improve drug policy.

Focus on achieving outcomes on which there is consensus

We need to shift the focus of debate away from stale arguments about whether or not or how drugs should be classified to focus on the broader outcomes that policy is seeking to achieve, such as the desire to protect young people from the harms associated with drug use. Our project demonstrates that in this way it is possible to bring together people from different sides of the debate to agree on a range of actions that could improve the current situation; actions identified in the workshops have been incorporated here.

The following areas for action were identified:

· there should be continued investment and support for broader intervention initiatives, delivered in schools and communities, as well as family-based initiatives and mentoring schemes in order to increase resilience to problematic drug use

· the Government together with local authorities and schools must ensure that drug education is based on accurate information delivered by individuals who will be perceived as credible and authoritative

· a systematic framework for information collection should be created to tap into the experience of drug users and frontline workers, as an early warning system and source of knowledge about potential harms and perceived benefits of new drugs

· the development and evaluation of outreach approaches, such as amnesty bins in clubs and other venues where use of such drugs is prevalent, should be supported to encourage people to adopt less risky behaviours even if they do still continue to use, while also providing valuable information about availability and purity

· there should be investment in laboratory-based investigation of current and potential drugs of abuse.

Ensure a more balanced decision-making process and debate

There is a growing ‘fault line’ in the balance of decision making about the control of new drugs that leads to a system that is weighted in favour of the precautionary principle. This closes off proper consideration of the relative harms of particular substances and the harms that arise from banning these substances. It also hinders the consideration of alternative control measures. As a result, this bias may unintentionally increase overall harms.

We recommend that the Government:

· conducts more rigorous research into the full range of impacts (including unintended harms) of the control and enforcement elements of drug control and drug policy; while we acknowledge the complexity of such an exercise, it is not methodologically
insurmountable, as similar assessments in areas as diverse as climate change and health policy have shown

· gives greater consideration to identifying and assessing the benefits (in addition to the harms) that individuals and society derive from the use of psychoactive substances, including the potential for substitution for more harmful substances. This should be built into the formal assessment and advice process to ministers and parliament; government legislation and pronouncements recognise the benefits (beyond medicinal) of the moderate use of alcohol, but fail to do so with other psychoactive drugs

Consider other regulatory options for control

There has been insufficient attention and discussion given to other control and regulatory mechanisms that have been used in the past for other comparable substances. These alternative control mechanisms could be utilised to respond to the challenge of new drugs.

In the short term, the Government should:

· commit to a comprehensive assessment of the use and impact of planned temporary banning powers; our project revealed significant concerns among experts that the temporary ban could be unenforceable, lead to other harms, and lead to a failure to consider other control options

· give greater consideration to controlling the supply of new psychoactive drugs through the wide range of consumer protection legislation in some instances

In the longer term, Government and Parliament should:

· consider a radical reform of the measures for the control of psychoactive substances to provide an overall and integrated framework for controlling the supply of all potentially harmful substances – including alcohol, tobacco and solvents – perhaps
through a Harmful Substances Control Act

In summary, it is 40 years since the Misuse of Drugs Act 1971 became law and the ‘drug problem’ is no nearer being solved. The new psychoactive substances now being developed pose new challenges while at the same time our understanding of the problems associated with licit substances has grown.

Therefore it seems high time for a new approach. The drugs debate is a hotly contested and polarised area and anyone entering it runs the risk of being characterised as being on one side or the other. However, it is clear that the ‘drug problem’ is complex and multi-faceted and there is no simple solution to it.

We would suggest that it is time for a new approach to policy making, legislation and debate on drugs issues focusing on developing consensus and taking a more holistic view of substance use while building better evidence about what works.