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Banning chemical highs – illiberal abuse of power?

When I was an MP, I agonised over the justice, liberty  and efficacy issues in drug laws, including alcohol. I stopped ACT becoming the "decriminalise cannabis party" but only because the cannabis liberals never managed (or even tried) to explain how they were going to prevent even more cannabis damage to children if the Police had no practical way to threaten adults who supply it.

I was concerned also to know how we would enforce law against driving/working while stoned. Harms to third parties are legitimate considerations for classical liberals. Nandor & Co were silly enough to protest against employer and teacher rights to stipulate their own rules and random testing and inspections. It was clear that they did not care about collateral damage, so it was never hard for me to avoid having ACT branded as inconsistent, at least with people who were knowledgeable about classical liberalism since JS Mill.

I also worried that, while we retained a "non-judgmental" welfare system, it could support stoners into much higher than natural levels of dependency. Even natural social constraints are not proof against mass dopiness. An opium epidemic shocked the Chinese emperor into banning British opium exports nearly two centuries ago. Even if Darwinian wisdom might let society reach its equilibrium level of stoners, those at the margin (or their parents) could reasonably object that there was a much higher than natural proportion of the population made vulnerable when the welfare industry hoovered up the natural evidence of what a loser's life it was, at the tax expense of workers made of sterner stuff.

From my observations in several poor countries where cannabis was freely available, it was unattractive to locals because their culture reflected the survival need for people to have all their wits about them. They could not afford to be addled. But there seemed to be no prospect of ensuring that stoners here were made personally responsible for their own support.

Now we desperately need some principled debate in favour of freedom and personal responsibility.

My firm is fighting right now for child sexual abuse victims to be allowed the right to “harm themselves” by ending name suppression for the criminals who have hurt them. The suppression is allegedly in the victims' interests. In reality, that is just an excuse for insiders, courts and officials,  to keep exercising their powers over others. The "protection" has been hijacked for their satisfaction and the benefit of  wrong-doers.

So we are pushing for genuine respect for personal freedoms, whether or not the powerful think it is in the victims’ best interests.

There are plenty of good reasons to challenge the criminalisation of suppliers of goods not proven dangerous (and even those that are plainly dangerous – like alcohol) to willing adult buyers. Supply offenders are not "victimless," because drug users are losers. But the "victims" seek out the "offenders."

A tenet of liberty is that the state's coercive powers should not be used to limit the freedom of informed adults. For years we struggled to get rid of the laws that enforced only a censorious majority's opinion of what behaviour was self-damaging. Laws against homosexuality, breaking marriage vows, abandoning responsibilities to support children and aged parents and many other "moral offenses" have been repealed. The slogan "the law has no place in the bedrooms of the nation" reflected a view that minorities should be free of majority tyranny.

It will be interesting to see if any National Party MPs dare to distinguish their position on these drugs from freedom to ride motocross, or play polo, or climb mountains, or play rugby, or not wear a helmet on your quad bike? Why applaud nanny state banning of this one form of self-harm but have no law against eating too much or drinking  to drunkenness, or giving yourself diabetes with soft drinks, or any other of the myriad  ways people harm themselves.

Some of those harms are much more expensive (in terms of the numbers who are susceptible) and with more proven cause/consequence connection.

And where does this take National's concern about the cotton wool society? How will any argue to end punishing employers for risks willingly incurred or even embraced by employees? Where is National's end point to the powers of the state?

Supporters of the ban talk of young people and their families having been been destroyed. Perhaps. But who has established that the same young adults would not have found another way to harm themselves (alcohol?) and perhaps other people at the same time. If these drugs are the current generation’s form of rebellion, and the law works to end supply, is there any reason to believe that the chosen alternatives will not be more dire?

The Coca Cola bottlers and chocolate manufacturers and wine-growers and deep fat frying businesses should take a deep interest in this debate. The same harm principle could fix them with overnight punishment for sale of their legal poisons.

At the very least a National government that claims to protect property rights should be promising to compensate the suppliers for the stocks they have bought in reliance on the recent law that expressly legitmised their stocks.

There would be no reason to claim fears of stock-piling and panic buying if the principled step had been taken – of promising to buy the existing stocks at some point between cost and retail that left the suppliers without losses.

Stephen Franks is principal of Wellington commercial and public law firm Franks and Ogilvie.

Comments and questions

Um, so do you still oppose the decriminalisation of cannabis but support the ongoing sale of legal highs?

By contrast, we have since 1 April been given a newly liberalised capacity to pay money for crowd funded ventures which may be equally damaging to one's wealth if not health. The analogy provides the answer. Intermediary licencees are required to advise those who would spend their money on previously prohibited activity. For all sought after products and services, licenced intermediaries enable the do-gooders to be satisfied they are protecting those who need it while those who are less susceptible to harm may still indulge in whatever form of venture they wish. It is time to draw up a list of prohibited goods and services and create the licenced intermediaries. Eventually it may evolve that we do not need the licenced intermediaries when 'victims' are [financially] literate enough to look after their own affairs.

I think the govt needs to focus on growing the economy, the fact that we have a skills shortage AND unemployment AND welfare dependency.

Make weed illegal for anyone under the age of 20 - there is clinical proof linking high use in teens with schizophrenia - and leglise it for adults.

In short agonise over something that really matters even if these legal high shops are a blight on our CBDs

While paying lipservice to liberalism in this article, Stephen Franks exhibits outrageous ignorance of cannabis use and users, and recklessly misrepresents the concerns about workplace drug testing. While he has become very good at constructing strawmen, he seems to know less about drug policy issues now that he did when he was an MP.

Too much pussy-footing around by government.
Just ban the lot,which not before time they are now doing.
As for Peter Done,it's a real indictment of the MMP system that Key needs his vote,making him a protected species.
paleo martin

The obvious answer is to ban all psycodelic substances,enforce that ban.
There is probably a case for legalising marijuana for those over 20.
The public is sick of the incompetent management by government of this whole business and it's time they showed a bit of backbone.

I have always thought of Mr Franks as a neoconservative rather than as a classical liberal. I am perplexed by his contradictory stance over cannabis law reform and the legal highs ban. I choose to be an alcohol and drug teetotaller, but that's my personal choice and I don't pretend to be any moral paragon in this context.

I certainly think that the Psychoactive Substances Bill would have been more advised to adopt a far more rigorous testing regime than seems to have been the case at its inception. There needs to be evidence-based backing for such public policies. Only then should the introduction of such legal highs have been attempted.

However, am I the only one who wonders if some of the alleged cases of legal high psychosis and addiction actually result from polydrug use alongside more illicit drugs?

This column contains some very muddled thinking. And the Ayn Rand call for total freedom of the individual has never been more than sheer Utopianism.

All we can do is to judge issues one by one within the context of the State's continual grab for more power. After all, this is the price of democracy...that we are to be its watchdogs.

Franks pontificates from her Utopian position - ignoring the fact that evil is always with us and that the young and vulnerable need protection from those programmed to prey on them.

Re his argument that " A tenet of liberty is that the state's coercive powers should not be used to limit the freedom of informed adults."

First he should clarify his use of "informed". We are now a grossly under-educated society in any real meaning of the word "educated". Desperate dropouts and those caught in a cycle of drug dependency can hardly be called informed adults.

His is pie in the sky with too much "agonising" by Mr Franks, and the most important fact of all he has walked right - " Even natural social constraints are not proof against mass dopiness."

Whoops- mass dopiness or "informed adults?

The only genuine constraints that work for an individual are his or her conscience, and intelligence.

We've allowed our education bureaucracy to put as many constraints as possible on the latter - much of what emerges from our state schools is a disgrace - and we have got the boot into Christianity, which emphasised the need for a personal moral code and the importance of conscience.

This is the debate we need to have - the need for individuals to have a moral compass.

Which reminds me - how come the Key government can't possibly rescue those 20 or so poor folk in Christchurch whose homes have been flooded three times in recent months? Apparently, according to our smooth Prime Minister, government can't interfere - that's up to the disastrously performing Christchurch City Council.

I don't think we need to take that claim too seriously. Peter Dunne also publicly washed his hands over the legalisation of synthetic drugs - an utter disgrace - saying it was up to councils.

But lo and behold - suddenly the government can do it after all.

"O brave new world that has such people in't."

>There needs to be evidence-based backing for such public policies.,

There was.... as was a precautionary approach, it is just in the circus of MSM we forget that the rigour that saw 120 MP's (with one dissenter, Bankise, but note now the clamouring over animal testing, as if that were the real reason we are where we are)

>Only then should the introduction of such legal highs have been attempted.

They were already introduced. They became prevalent because of the failure to resolve the cannabis 'debate', and that goes back to the failure to account the policy base that is manifest in prohibition's unintended consequences, deviancy amplification, impediments to health promotion and alienation from rule of law.

>However, am I the only one who wonders if some of the alleged cases of legal high psychosis and addiction actually result from polydrug use alongside more illicit drugs?

See comment above (although I think you might also mean legal drugs, like the one we drink). While I don't entirely agree with the PSA as a mechanism, I am outspoken about prohibition.... it prevents credible research which in turn panders to fears, manufactures consent and feeds a cycle of harms that the illiberal 'just ban it' crowd fail to account for. Just because those harms are not acknowledged makes them no less real.

Law reform is conservative, it is prohibition that is radical.