The GULS Law Review

Getting you through the GU law degree!

header photo

Going Dutch? Drugs Policy in the UK and the Netherlands

October 25, 2013

Written by Jamie Hilland (4th year LLB)

As both a resident and a law student, the six months I spent in Maastricht provided a fascinating insight into the famously liberal Dutch policy towards drugs. In a prohibitionist international context, the Netherlands’ approach continues to attract substantial comment, nationally and internationally, at every level of the academic and non-academic debate. Forty years after Nixon declared the “War on Drugs,” the discussion seems to have only intensified: with the Durham police chief calling for complete legalisation, with a further spate of deaths in the UK from ecstasy pills and with the subsequent clamour for change heard across the political spectrum. As such, it is worthwhile to assess the Dutch law in more detail: its advantages, disadvantages and the lessons that it might be able to provide.

The Dutch approach

The commonly expressed view – “weed is legal in the Netherlands” – is a misconception. The production, supply and possession of cannabis are illegal. However, its sale in small quantities by licensed vendors has effectively been decriminalised. This is manifested in the phenomenon of the “coffee shop”, where the sale and consumption of marijuana is officially tolerated, subject to certain regulations. Its basis is the expediency principle – the idea, central to the Dutch criminal justice system, that rules should only be enforced where there is reason to intervene. An official policy of gedogen (“tolerance”) is undertaken. Gedogen is the practice of discriminatory enforcement. Only illegalities which actually cause social problems are targeted.[1] In the case of cannabis, it is thought that a more formalistic application of the law would be more damaging to society than use itself.

Central to this is the distinction between “hard” and “soft” drugs. Hard drugs are defined as those which pose an unacceptable risk to public health –including heroin, cocaine and ecstasy.[2] Cannabis is a soft drug. This policy is not simply about tolerating illegality, but about prioritising the judicial response. Rather than prosecuting every offence, those relating to hard drugs, cultivation and trafficking are prioritised. The sale of soft drugs and possession for personal use (up to 5g for soft drugs and 0.5g for hard drugs) are given the lowest priority and are not prosecuted.[3]

The key objective of the Dutch policy is harm reduction [4] – limiting the damage associated with drug use, through normalisation (preventing stigmatisation and marginalisation), de-escalation and the separation of the hard and soft drugs markets (so that cannabis users are not exposed to criminals and more dangerous, addictive substances). Moreover, it prioritises disrupting organised crime and preventing nuisance. Ultimately, whilst often characterised as liberal, control is a major incentive. The general perception of the Dutch approach as “laid back” is misguided. Rather, it is thoroughly pragmatic – rooted in a mistrust of the effectiveness of the criminal law in solving social problems. Gedogen is not so much a product of libertarianism as a recognition of the law’s limitations.

In spite of its availability, cannabis use in the Netherlands is actually relatively low. 9.5% of 15-34 year olds consume soft drugs once a month – lower than the European average (12.5%). Use of hard drugs (other than ecstasy) is also lower than the European average (and the UK.) In every category, Dutch prevalence rates are lower than the US.[5] One must be careful not to use this to conclude in favour of a liberal policy. Finland - a model of prohibition - has lower prevalence rates than the Netherlands. Cultural factors are clearly significant. Nevertheless, it seems that drug use is not intrinsically linked with its legal status.

Increasing conservatism

However, whilst the law is well-established, there is increasing support in the Netherlands for a more conservative approach, with the public becoming disillusioned by this compromise arrangement and many politicians wishing to appear tougher on drugs.

As of 1996, individual municipalities have the right to choose whether to allow the operation of coffee shops. To date, 77% of municipalities have adopted a “zero policy.” Moreover, the Mayor, Chief of Police and Public Prosecutor can set regulations for coffee shops in their municipality. Since 1999, they have been able to close coffee shops not complying with these regulations, even in the absence of criminal activity or nuisance. No new permits are being issued and applications for expansions are being rejected. This has led to a decline in the number of coffee shops - the largest drop occurring being 1997 and 1999, where 28% closed.[6]

Another major development came in 2010 with the introduction of the “weed pass” – banning non-residents from coffee shops – leading to a fierce, long-running court battle. Amongst its greatest supporters is the mayor of Maastricht, arguing that the city’s location near the Belgian and German borders makes it particularly vulnerable to drug tourism and the associated nuisance. During my time there, the 1999 Act was used instrumentally – with police officers regularly entering coffee shops and punishing any infringement of the regulations (however minor) with immediate closure.[7] Owners contend that driving users away from the coffee shops forces them to turn to alternative sources: causing an increase in street dealing, nuisance and criminality.

This heightened police response can also be seen on the production side. Regardless of the drug, cultivation and trafficking are given a high enforcement priority. Indeed, in 2006, the punishment for cultivation of cannabis was increased from 4 to 6 years imprisonment. Police continue to show great determination in combating ecstasy and cannabis production.

Problems

One might argue that this increasingly conservative trend is undermining harm reduction. The result is an awkward compromise, reflecting competing interests, which it cannot simultaneously placate. With every coffee shop closure, the normalisation of cannabis use is interrupted. There is a clear tension, insofar as the state aims to normalise drug use, whilst utilising the coercive power of the criminal law to assert its authority over the drugs market. Moreover, as demand remands stable, a distribution issue arises. Either existing coffee shops will have to sell more (becoming larger and more commercialised) or users will have to turn to illegal sources.

The question then arises: has regulation achieved control? The answer may lie in the paradox known as “the backdoor problem.” Whilst cannabis use in coffee shops is effectively decriminalised, supplying coffee shops with cannabis remains an offence. Indeed, enforcement of production offences is increasing. In a sense, the control offered by regulation is illusory. The state has no control over the drug supply. Cannabis in the Netherlands has a higher average proportion of THC (the psychoactive component linked with psychosis) than other European countries, including the UK.[8] Several city councils have proposed a radical solution: state-owned cannabis fields – enabling the government to regulate the content of cannabis, whilst profiting off a currently illegal enterprise and curbing organised crime. This would represent a huge shift towards full legalisation, but remains unlikely.[9]

As such, it would be a mistake to claim that the Netherlands is developing an increasingly coherent drug policy. Whilst remarkable that it has remained relatively progressive for decades, through successive governments, there are plenty of ambiguities. The future of the Dutch approach is unclear.

The UK approach

The UK’s drug policy is firmly prohibitionist. The offences set out in the Misuse of Drugs Act 1971 resemble the Dutch law – with possession, supply and production, of a “controlled drug” illegal. The distinction rests in the classification of drugs and penal approach. Illegal substances are separated into three groups: Class A drugs being the most dangerous and carrying the highest penalties. Cannabis is in Class B and ecstasy Class A[10] - possession is punishable with an unlimited fine and up to 5 or 7 years imprisonment respectively. The sentence depends on the personal history of the accused, the class and quantity of the drug. The 2005 Drugs Act, s2 creates a presumption that any amount greater than for “personal use” indicates intention to supply (although no quantity is defined.)

This classification system has been the target of substantial criticism - most notably from Professor Nutt, former chairman of the Advisory Council on the Misuse of Drugs. His 2007 report compared the harmfulness of twenty legal and illegal drugs –with cannabis (11th) and ecstasy (8th) ranking lower than tobacco (9th) and alcohol (5th.) In addition to low toxicity, neither is particularly addictive and both carry a low risk of violent or criminal behaviour. Whilst recognising cannabis and ecstasy’s dangers, Nutt dismissed the Home Secretary’s “precautionary principle” argument and recommended downgrading both.[11]

Whilst a comprehensive harm assessment is beyond this article’s scope, the relative health consequences are inevitably bound up in an analysis of the law. For instance, ecstasy–related deaths have been used as evidence on both sides of the debate. Prohibitionists argue that these prove that ecstasy is dangerous and vindicate anti-drug laws. Opponents argue that an MDMA overdose is rarely the cause of death, but that fatalities are more often caused by other dangerous substances in the pill or water intoxication. They insist that MDMA itself is not fatal, but lack of knowledge of its effects and lack of regulation of its content. However, reasonable analysis is made difficult by the hysteria surrounding the drug debate. Stanley Cohen’s seminal account of the moral panic resulting from death of Leah Betts is informative[12] - the sensationalist media reaction immortalised in the UK’s high classification of ecstasy. In this environment, it is difficult to construct the informed and intelligent debate which drug policy demands.

The Netherlands provides an alternative, with pill-testing provided by the government’s Adviesburo. In addition to reducing the risks (and stigma) for users, this provides useful intelligence for the authorities. In terms of harm reduction, this initiative has been successful.[13] The Netherlands’ rates of death resulting from drug abuse are below the EU average. Without legalising ecstasy or lowering its classification, pill-testing helps to prevent avoidable deaths.

Opponents of prohibition argue that this is merely part of the damage caused by the “War on Drugs.” After many years, this has led to overcrowded prisons, whilst failing to lower drug use, stigmatising users and creating more potent strains.[14] The USA’s experiences are particularly enlightening. In the acclaimed documentary, “The House I Live In”, David Simon offers a powerful critique.  He argues that this amounts to a form of social control. The vulnerable and marginalised tend to be most affected by prohibition - exemplified by the huge disparities in sentences for powder (associated with affluence) and crack cocaine (associated with poverty.) Post-industrialisation, with the decline of collective bargaining, society has no need for the lowest 10% of the population – who have few employment prospects beyond the drug trade. Imprisonment has become the solution. On this basis, Simon argues against legalising marijuana if it prolongs prohibition as a whole: “...if it lets a few white middle class people off the hook then that’s very dangerous.”[15]

Lessons?

With full legalisation fanciful, reform must be creative. The Dutch policy, however innovative, remains flawed. Though a product of its environment – particularly gedogen - it does offer some guidance as an alternative model to prohibition: the advantages and problems with attempting to control the drugs market through regulation. In both a pragmatic and humanistic sense, harm reduction is an admirable objective – but it is difficult to accomplish. For many, prohibition only causes harm. An awareness of the consequences of the alternatives - regulation, full legalisation or simply reclassification - is required for a more rational drugs policy to be formed.


[1] Uitermark, “The Origins and Future of the Dutch Approach Towards Drugs,” Journal of Drug Issues (2004), 518 ( “Origins”)

[2] Opium Act 1976,  List II

[3] PPS FAQ - http://www.om.nl/vast_menu_blok/english/verzamel/frequently_asked/is_it_an_offence_to/

[4] Monshouwer et al, “Buying Cannabis from Coffee Shops,” Drug and Alcohol Review (2011), 30, 148

[5] Ibid, 151 (“Buying Cannabis”)

[6] Ibid, 150

[7]“Marijuana For Tourists, Discord for the Netherlands,” Rodriguez (24.9.13) - http://www.forbes.com/sites/ceciliarodriguez/2013/09/24/weed-ghettos-for-tourists-anger-netherlands-neighbors/

[8] Monshouwer, “Buying Cannabis,” 151

[9] http://www.forbes.com/sites/ceciliarodriguez/2013/09/24/weed-ghettos-for-tourists-anger-netherlands-neighbors/

[10] Misuse of Drugs Act 1971 Act, sch.2

[11] Nutt, The Lancet, 369 (9566): 1047–1053

[12] Cohen, “Folk Devils and Moral Panics,” 3rd edition, pg.xiv (2002)

[13] Uitermark, “Origins” 523

[14] “War on Illegal Drugs Failing, Medical Researchers Warn” (1.9.13) - http://www.bbc.co.uk/news/uk-24342421

[15] “David Simon eviscerates the dystopia-creating war on drugs,” Vulliamy (25.5.13) - http://www.rawstory.com/rs/2013/05/25/the-wire-creator-david-simon-eviscerates-the-war-on-drugs/

Go Back

Comment