My draft comments in red.

Foreword by Christopher Haskins, Chairman Better Regulation Task Force.

Governments affect their citizens in three ways:

1. they provide a range of services for them;
2. they raise taxes to pay for the services;
3. and they regulate them.

The job of government is to get the balance right between providing citizens with proper protection and ensuring that the impact on those being regulated is not such as to be counter productive. Our five principles of good regulation have been accepted by policy makers.

1. Introduction

Regulation may be widely defined as any government measure or intervention that seeks to change the behaviour of individuals or groups. Government regulation can both promote the rights and liberties of citizens, and impose restrictions on their behaviour. Whilst recognising that there are differences about the levels of intervention, all governments should seek to ensure that regulations are necessary, fair, effective, affordable and enjoy a broad degree of public confidence. To achieve all this, good regulations and their enforcement should meet the following five principles:

1. Transparency
2. Accountability
3. Proportionality
4. Consistency
5. Targeting

These principles should be applied to state regulation, both national and European, as well as alternatives to state regulation such as self-regulation. The regulatory process in the European Parliament and Commission should apply similar principles and tests to their proposals as are suggested in this pamphlet.

2. Policy Objectives which can be achieved through State Regulation

We have identified seven main policy objectives which can justify regulation.

1. To protect and enhance the rights and liberty of citizens. Equal opportunities and anti-discrimination rules, dataprotection, freedom of information, human rights legislation.
2. Regulations for legal drugs (alcohol, tobacco & caffeine) protect & enhance the rights of citizens to use these drugs beneficially (alcohol & caffeine), reasonably safely (alcohol & caffeine) and even when use risks the consumer’s health (tobacco, alcohol); illegal drug users are deprived of these rights, deprived of equal opportunity, discriminated against, socially excluded and punished. The Misuse of Drugs Act covers all drugs, medicinal, legal and illegal. The word ‘drugs’ refers to all drugs yet the Advisory Council on the Misuse of Drugs fails to refer to alcohol and tobacco as ‘drugs’, thereby providing discriminatory advice to Government.
3. To promote a safe and peaceful society. Public order legislation, criminal law.
4. Legal drug users’ rights are only restricted if their drug use risks harming others (drink driving), though causing passive smoking (which kills hundreds of others each year) remains legal. In the case of illegal drugs all rights to use, supply or produce are prohibited on the basis that all these activities must cause harm – this is not restricted to ‘harm to others’. No evidence has been produced to support the view that illegal drugs are more harmful than legal drugs, nor does Government claim illegal drugs are more harmful.
5. To collect taxes and ensure that they are spent in accordance with policy objectives. Income tax and other tax legislation, administration of public services - including provision of health care, education and social security payments.
6. Legal drugs are regulated and taxed bringing Government £20 billion a year, enough to pay for all drug-related services – legislation, regulation, health education, treatment etc. The failure to regulate and tax illegal drugs means similar amounts of money go to criminals instead of Government; Government/general tax-payers must themselves pay for law enforcement, education, treatment and imprisonment.
7. To safeguard health and safety or protect citizens from ‘harming’ themselves. Drink-drive legislation, the Children Act 1989, health and safety at work legislation, food safety legislation, age restrictions on film/video access and the sale of cigarettes, restrictions on the sale of drink and drugs, and compulsory use of seat belts.
8. The majority of these cases refer to harm to others, often requiring employers, producers or suppliers to minimise harm to others, employees and consumers. Legislation permits the use of legal drugs though The Advisory Council on the Misuse of Drugs, whose statutory duty under the Misuse of Drugs Act is to advise Government about drug harm, have said that tobacco "smoking kills about 120,000 people each year, and between 28,000 and 33,000 people die annually as a result of alcohol". Legislation prohibits all use of cannabis even though the ACMD have said "the high use of cannabis is not associated with major health problems for the individual or society." The World Health Organisation reports that tobacco use causes 30 times more death than illegal drug use when tobacco use is only 6 times more prevalent. Stress is a major health hazard and legal drugs are often taken to relieve stress – moderate alcohol and caffeine use is proven to be beneficial to health. Evidence suggests that cannabis is the safest stress-relieving drug because excessive use does not have the severe risks attached to excessive alcohol and tobacco use. The Government’s Updated Drugs Strategy 2002 says that "drug laws must accurately reflect the relative harms of different drugs if they are to persuade young people in particular of the dangers of misusing drugs". This policy is implemented both within legal drugs policy and within illegal drugs policy but not between the two groups. Drug laws fail to "protect citizens from ‘harming’ themselves" by prohibiting safer alternatives to the legal drugs available from 200,000 licensed drug dealers.
9. To protect consumers, employees and vulnerable groups from abuse. Employment protection, consumer protection, company law, labelling and product-testing requirements.
10. Legal drug users have consumer protection through regulation while illegal drug users do not; those employed in the illegal drugs trade are not protected from abuse by employers. Tobacco, a drug that warns it kills, is sold alongside sweets for children while cannabis can not be sold to informed consenting adults (children are taught to make ‘informed choices’ but are denied this by prohibition). Illegal drug consumers, suppliers and producers rights are repressed by law-making authorities who deny them their consumer and trade rights.
11. To promote the efficient working of markets. Competition law, telecommunications regulation, utility regulation, company law, patent protection.
12. Drug regulations that unjustly discriminate against illegal drugs on the basis of harm aim to protect traditional drug cartels (alcohol & tobacco) from competition from non-traditional drug cartels (the illegal drugs). Alcohol suppliers may profit from selling an intoxicant drug that causes addiction, death by overdose, accident and violence and long-term illness but competing cannabis suppliers are imprisoned though their product has proven to be safer on all counts. Tobacco producers are subsidised while foreign opiate producers have their drug crop forcibly destroyed. There is no fair competition between legal and illegal drugs.
13. To protect the environment and promote sustainable development. Conservation legislation, species protection, pollution control and land use planning regulation.

These boil down to:

• • Taxation to cover the cost of services, (c)
  • Regulation of activities to prevent harm to others, (a), (b), (d), (e), (f), (g)

The use of legislation to prevent self-harm is not justified except in exceptional circumstances where legal restrictions do not restrict the activity but only make it safer (e.g. car seat-belts). Self-harm from other substance abuse – excessive or inappropriate food consumption – is not penalised by law; nor is self-harm from other recreational activities like sport.

4. Tests of Good Regulation, and Pitfalls to be Avoided

These tests build upon our principles of transparency, accountability, proportionality, consistency and targeting. They should be applied to the alternatives mentioned above as well as to direct, state regulation.

Regulations must:

1. have broad public support. Broad public support for a policy or regulation is a good indicator that the public sees it as necessary. Where such support is absent, compliance is likely to be low. There was widespread hostility to the poll tax and it had to be abandoned; The ‘beef on the bone’ ban was considered to be excessive, with people preferring to judge the risks for themselves. However, the public’s view can change over time resulting in better compliance or in a gradual disregard for previously accepted regulations. Drink-driving laws, which were ineffective for many years, are now working well; Sunday shopping restrictions, on the other hand, which had been well respected for over a century, suddenly lost credibility, and were substantially reduced. Some policies, such as the ban on the use of cannabis, continue to have widespread support even though they are largely ineffective.
2. Illegal drug prohibition is considered by many "to be excessive, with people preferring to judge the risks for themselves". Public support for drug legalisation has continued to increase for decades and is now evenly balanced. Sexism and racism had broad public support just as drug discrimination currently has – majority rule cannot justify regulations that discriminate against, socially exclude and punish a large minority.
3. be enforceable. To be effective, regulation not only needs public support, it must also be practical to enforce. Rules aimed at banning under-age sales of tobacco, drink and lottery tickets are generally ineffective in the absence of identity cards; The police and other enforcers must use their commonsense when seeking to enforce restrictions such as curfews on problem young people.
4. As you say "the ban on the use of cannabis" is "largely ineffective". An increasing proportion of citizens risk punishment to exercise informed choice. 50% of cannabis is now grown indoors – how could that be stopped?
5. be easy to understand. People know that they must pay a TV licence fee or are entitled to a minimum wage because the legislation is straightforward. But the complexity of some regulations can undermine their effectiveness. Many people do not claim benefits to which they are entitled; The total package of employment legislation is complex and in aspects, such as the Working Time Directive, burdensome to employers.
6. Children of 5 years old are taught at school, under the National Curriculum, "the role of drugs as medicines". At 7 they are taught about "the effects of alcohol, tobacco and other drugs". Then the Government’s drug education campaign, Talk to Frank, begins by saying "drugs are illegal" but later says that alcohol and nicotine are drugs. It is the Government’s misuse of ‘drugs’, the word, that underlies drug discrimination and leads young people to disrespect the law.
7. be balanced and avoid impetuous knee-jerk reaction. Ministers can come under pressure to regulate immediately in response to high profile public concerns. The Adventure Activities Licensing Scheme, introduced in response to the Lyme Bay canoeing tragedy, is now being amended to reduce the administrative burden it imposed.
8. This has been the history of illegal drug policy, fuelled by media drug discrimination. Prohibition is an extreme totalitarian response in high contrast to the over-liberal legal drug policy. Fear of the unknown drives most forms of discrimination.
9. avoid unintended consequences. In regulating in one area, regulators may unintentionally create problems elsewhere. High animal welfare standards in the UK put British farmers at a competitive disadvantage compared to their counterparts elsewhere; Expensive new rail safety systems might increase the cost of train travel, encouraging people to use their cars more - at greater risk to personal safety; Excessive red tape often places small businesses and voluntary sector groups at a disadvantage against largeorganisations; A minimum wage set at too high a level could destroy jobs and defeat its purpose.
10. There can be no doubt that the prohibition of illegal drugs has contributed to the harm that they cause. Prohibition is not a form of regulation but one of repression. Like a dammed river whose flow is prohibited from following its natural course with no alternative regulation, the flow will spill out elsewhere causing unforeseen damage. HIV is an example, undoubtedly the reason that harm reduction approaches to injecting drug users were introduced. Prohibition of illegal drugs also misleads citizens into believing legal drugs are considerably safer thereby contributing to the huge death toll from tobacco and alcohol.
11. balance risk, cost and practical benefits. It is neither practical nor desirable for regulators to seek to remove all risk. Trade-offs between the risk, cost, and benefit of regulation need to be assessed, and citizens allowed, within reason, to make their own judgements about the risks in question. Vulnerable people should be protected whilst allowing others to decide for themselves how to deal with a problem; Enforcers can allow a business under scrutiny formal practice to continue to trade if they are satisfied that the benefits outweigh any potential risk to the public; People can decide for themselves if they wish to buy unpasteurised milk from farms in England and Wales (but not in Scotland); Rehabilitating criminals into society carries some risk that they will re-offend, but this must be assessed against the potential benefits.
12. All drug regulations should encourage beneficial use, tolerate reasonably safe use, educate against use harmful to the consumer and only legislate against use harmful to others. Had our cave-dwelling ancestors prohibited fire use on the basis that it may cause harm we would still be in the caves.
13. seek to reconcile contradictory policy objectives. Health and education policies aim to make people responsible for their own health allowing informed choice but legislation penalising those who choose to risk self-harm from illegal drug use contradicts this. Clear assessments of the likely impact of regulations are essential for identifying and reconciling contradictory objectives. Additional costs of food safety regulation might make food too expensive for people on low incomes; Animal welfare must be assessed against human welfare when testing medicines; Environmental protection must be balanced against economic need when taking planning decisions; ‘Moral’ regulation must be assessed against personal liberty when regulating hunting or Sunday trading; Or illegal drugs. Personal pleasure must be measured against public nuisance when licensing drinking and gaming. Or illegal drugs.
14. identify accountability. When things go wrong there must be clear accountability without resorting to unfair retribution. Who is the Advisory Council on the Misuse of Drugs accountable to when they fail to refer to alcohol and tobacco as drugs and fail to distinguish self-harm that requires education and treatment from harm to others which alone requires legislation? Failures of accountability arose between the Home Office and the Prison Service over security problems; There is a risk of blurred accountability for safety between Railtrack, the train operators and the Health and Safety Commission; Relatively junior social workers are often made scapegoats by the media when mistakes are made, even though they are not necessarily the ones at fault.

5. Checklist - Measuring regulations against our five Principles of Good Regulation

1. Transparency: The case for a regulation should be clearly made and the purpose clearly communicated. The purpose is to reduce drug-related harm, not to reduce reasonably safe drug use or trade. Proper consultation should take place before creating and implementing a regulation. This never happened in the case of drug regulations. Penalties for non-compliance should be clearly spelt out. Regulations should be simple and clear, and come with guidance in plain English. No one seems able to tell me what the legal definition of the word ‘drugs’ is in the Misuse of Drugs Act 1971 and why alcohol and tobacco have remained exempt. Those being regulated should be made aware of their obligations and given support and time to comply by the enforcing authorities with examples of methods of compliance.
2. Accountability: Regulators and enforcers should be clearly accountable to government and citizens and to parliaments and assemblies. Who is the Advisory Council on the Misuse of Drugs accountable to? Those being regulated must understand their responsibility for their actions. People have a greater right to risk self-harm than to risk harm to others. Government policy is to encourage individual responsibility for health through informed choice. Only harm to others is a crime. There should be a well-publicised, accessible, fair and efficient appeals procedure. Jurors are not informed of their duty to judge the law, the traditional democratic way of preventing law-makers abusing their power. Enforcers should be given the powers to be effective but fair.
3. Proportionality. Any enforcement action (i.e. inspection, sanctions etc.) should be in proportion to the risk, with penalties proportionate to the harm done. Harm refers to harm to others, not self-harm. Dangerous recreational activities and excessive food both risk self-harm but are not penalised. Alcohol and tobacco suppliers sell addictive drugs that kill but are not penalised. In contrast illegal drug suppliers and consumers are severely penalised. Illegal drug regulations are more disproportionate than any other. Compliance should be affordable to those regulated-regulators should ‘think small first’. Alternatives to state regulation should be fully considered, as they might be more effective and cheaper to apply.
4. Consistency. New regulations should be consistent with existing regulations. Illegal drug prohibition was not consistent with drug regulations existing at the time of their introduction. Departmental regulators should be consistent with each other. The departments of health and education treat all drugs equally, referring to alcohol and tobacco as drugs; the implementation of the law (Misuse of Drugs Act) fails to refer to alcohol and tobacco as drugs. Enforcement agencies should apply regulations consistently across the country. Regulations should be compatible with international trade rules, EC law and competition policy. There is no free and fair trade for recreational drugs – those used traditionally in the West remain legal while non-traditional competing industries are prohibited. EC Directives, once agreed, should be consistently applied across the Union and transposed without ‘gold-plating’.
5. Targeting. Regulations should be aimed at the problem and avoid a scattergun approach. Illegal drug regulations aim to reduce drug harm but fail to distinguish between self-harm (informed choice) and harm to others (crime). They also prohibit reasonably safe use, an abuse of Government power unacceptable to illegal drug users. Where possible, a goals-based approach should be used, with enforcers and those being regulated given flexibility in deciding how best to achieve clear, unambiguous targets. Regulations should be reviewed from time to time to test whether they are still necessary and effective. Over recent decades it has become clear that legal drugs are as harmful as illegal drugs. Public opinion is now evenly matched about the need for reform. If not, they should be modified or eliminated. Cannabis has been rescheduled since it is now seen as safer than other Class B drugs; evidence shows that it is also safer than legal drugs and so should be legalised (or legal drugs prohibited). Where regulation disproportionately affects small businesses, the state should consider support options for those who are disadvantaged, including direct compensation.

The Chancellor of the Duchy of Lancaster appointed the Better Regulation Task Force in September 1997. It is an independent body that advises the Government on action which improves the effectiveness of government regulation, taking particular account of the needs of small businesses and ordinary people. This is done by ensuring that regulation is necessary, fair, affordable and simple to understand and administer. The current Task Force members are from a variety of backgrounds but all have experience of regulatory issues. Members are drawn from large and small businesses, citizen and consumer groups, the trade union movement, the voluntary sector and those responsible for enforcing regulations. The Chair is Christopher Haskins. A full list of the members, along with a Register of Members Interests is on our website (http://www.cabinetoffice.gov.uk/regulation/index/task.htm) and available on request.

Better Regulation Task Force Room 1.235 Great Smith Street London SW1P 3BQTel: 020 7276 2142

Email: [email protected]

Website: www.cabinet-office.gov.uk/regulation/task.htm

© Crown Copyright 2000Produced by the Cabinet Office Publications & Publicity Team. October 2000

http://www.cabinet-office.gov.uk/regulation/taskforce/2000/PrinciplesLeaflet.pdf