Why discriminate between drugs based on tradition rather than harm? – Home Office
Why discriminate between drugs based on tradition rather than harm? – ACMD Secretariat
Non-compliance with science guidance – Chief Scientific Advisers to Government & Home Office

Rationale for magic mushroom prohibition - Home Office, Jan 2005:
see full text of correspondence, and other correspondence, here.

 

Home Office – why discriminate between drugs based on tradition rather than harm?:

• Bob Ainsworth (22 January 2003): "The 'drugs of misuse' controlled under the 1971 Act are determined under United Nations Convention".
  "Tobacco, unlike cannabis, is not identified under the UN Conventions and therefore its usage is not classified as misuse and is not an offence under the law. Although tobacco acts as a stimulant and therefore can be considered a drug it does not contain the intoxicating properties of either cannabis or alcohol".
  "The Advisory Council on the Misuse of Drugs Technical Committee has been piloting a risk assessment framework that should prove more objective and comprehensive in terms of assessing the risks to health of drugs of misuse".
  "Smoking [tobacco] is the greatest single cause of preventable illness and premature death in the UK, and is responsible for around 120,000 deaths every year. However, because the habit has a four hundred-year history of social acceptance in the Western world, the Government cannot simply ban it although it does encourage people to stop smoking. The Government believes that adults are entitled to make an informed choice and therefore ensures that full information on the dangers of tobacco are freely available".
• Caroline Flint (27 Nov 2003): "The Misuse of Drugs Act 1971 (MDA 1971) refers to only controlled drugs, that is to say any 'substances or product for the time being specified in Part I, II or III of schedule 2 to this Act. As alcohol, tobacco and caffeine are not controlled drugs, they do not fall under the remit of the MDA 1971. However, although alcohol, caffeine and tobacco do fall under the UN's definition of drugs, the UN has not advised that these substances be brought under control".
  "I would like to clarify the responsibility of the Advisory Council on the Misuse of Drugs (ACMD). The ACMD is an independent non-departmental public body established under the MDA 1971 for the purpose of advising the Government on drug related issues. It therefore does not have an obligation to provide advice to the Government on how to tackle harm brought on by misuse of alcohol, tobacco or caffeine. Owing to the wide use of these substances over a long period of history in modern society and the general social acceptance that has resulted, it is not a realistic or practical option. To criminalise the supply and use of alcohol, tobacco and caffeine would inevitably result in widespread smuggling, law breaking and other associated criminal activity".
  "I would like to confirm that Bob Ainsworth in his letter of 21 January 2003 was correct to state that the UN has a great influence as to which drugs are controlled in the UK. Although this relationship is not explicitly stated in the MDA 1971, it is a condition which the UK is party to, due to it being a signatory to the three UN Conventions. However, the UK is also free to act independently outside of this international legal framework and the ACMD can advise the Government on drugs that it feels require control under the MDA 1971. However for reasons I have already outlined – alcohol, tobacco and caffeine will not be considered by the ACMD for control".
• PALAD to Flint (28 June 2004): "I note you end your letter saying "alcohol, tobacco and caffeine will not be considered by the ACMD for control". Ms Ahmed of the ACMD Secretariat replied to my response to your letter saying "Albeit independent, the ACMD as an advisory body has to be aware of the Government’s position, which has not given any intention to consider the control of alcohol, tobacco and caffeine". I take these statements to be admissions on both sides that the Government interferes with the independence of Advisory Council on the Misuse of Drugs and so perhaps interferes with the implementation of the law". Reply from ACMD, 12 Aug 2004 below.

ACMD Secretariat – why discriminate between drugs based on tradition rather than harm?:

• PALAD to ACMD Secretariat (22 January 2003): "The Government's reply to the Report of the Independent [Police Foundation] Inquiry into the Misuse of Drugs Act 1971 confirms the responsibility of the ACMD to classify drugs according to their dangerousness:
  "11. The Government agrees with the Police Foundation's conclusion that the main classification criteria should continue to be that of dangerousness..." "... assessments of the sort that ACMD are required to make when considering the harmfulness of drugs ... should clearly state methodology."
  Could you please "clearly state methodology"? Is there anything preventing the ACMD from considering the dangerousness of tobacco or alcohol? Under the guidelines above it seems that tobacco should certainly be included within the Misuse of Drugs Act". No reply.
• PALAD to ACMD (22 June 2003): "This report [Hidden Harm] about parental drug use harmful to children aims to establish "the size and seriousness of the problem" yet omits the two greatest causes, alcohol and tobacco, and so provides a distorted view of the problem. Anyone reading the front cover or summary would have no clue that parental use of legal drugs causes far more harm to children than use of controlled drugs - a vital piece of information. We are concerned that such mistakes leave the ACMD open to charges of discrimination. The Government receives £20 billion a year from the legal drug trade and here is a report claiming to expose 'hidden harm' that continues to keep the harm from these legal drugs hidden. Could you explain the reasoning behind the ACMD's misleading use of the word 'drug' and give an assurance that this error will not be repeated?". No reply.
• ACMD Secretariat to PALAD (24 Jan 2004): "Whilst it can be argued that the ACMD has a remit to consider alcohol, tobacco and caffeine it has, to date, declined to do so. The ACMD consider that its resources are best served by focussing on controlled drugs or drugs likely to be controlled by the ACMD 1971 [sic]. Albeit independent, the ACMD as an advisory body has to be aware of the Government's position, which has not given any intention to consider the control of alcohol, tobacco and caffeine".
• PALAD to ACMD (29 Jan 2004): "I’m trying to find out details about how the ACMD define the word ‘drugs’, how they therefore determine the scope of their remit and what role Government plays in these decisions. Are there any documents relating to these questions that you could send me?". No reply.
• ACMD to PALAD (12 Aug 2004) - reply to Flint letter (28 June 2004): "[The ACMD’s] focus on controlled drugs and drugs that are likely to be controlled is a choice that has been made by the ACMD without any Governmental interference".
• PALAD to ACMD (20 Aug 2004) : "I am trying to find out why an independent scientific committee should focus its inevitably limited resources "on controlled drugs or drugs likely to be controlled" - in accordance with the current government’s Drugs Strategy - rather than on the most harmful drugs – in accordance with objective scientific evidence and, I believe, with their statutory duty. The ACMD’s focus on "drugs likely to be controlled" indicates that the ACMD’s advice depends upon Government’s drugs policy but Government states that their drugs policy depends upon the ACMD’s advice. This creates an accountability loop where each side follows the other, a situation unable to adapt to changes in scientific understanding. Government policy cannot change if scientific advice is restricted to advice deemed acceptable to Government policy.
  Scientific understanding of drugs has changed considerably in recent decades. I am particularly concerned that the ACMD do not identify and refer to alcohol and tobacco as drugs and do not carry out risk and regulatory assessments in line with Government guidelines, instead restricting their methodology to that of the Government’s Drugs Strategy. In contrast the Department for Education and Skills teaches children that alcohol and tobacco are drugs in accordance with the United Nations’ definition. The Department of Health’s Dangerousness of Drugs provides a modern scientific risk assessment of all the most commonly used potentially harmful drugs, including tobacco and alcohol. The Home Office and ACMD have a different approach, discriminating between traditional and non-traditional potentially harmful drugs, referring only to the latter as ‘drugs’. I am trying to find out details of the reasoning behind that discrimination. Professor Wiles has assured me that this discrimination has been made by the ACMD without Government influence. You have assured me that limited resources are not a factor.
  The Code of Practise mentions that the Secretariat’s role includes providing a "clear audit trail showing how the committee reached its decisions". This is what I’m trying to find out with respect to the ACMD’s decision to limit their advice to "controlled drugs or drugs likely to be controlled". How did the ACMD decide that they have the legal authority to limit their statutory duty in such a way? Did the ACMD discuss this decision with the Home Office? Did the ACMD consider alternatives such as requesting sufficient resources to advise on all potentially harmful drugs? Did the ACMD consider any unintended consequences of their decision such as their consequent inability to assess the relative harms of the intoxicant drugs alcohol and cannabis?". Reply below, from Home Office Chief Scientific Adviser Wiles, 3 Sept 2004.
• ACMD Secretary, Stuart Harwood (22 Feb 2005): "I have seen some of the correspondence between yourself, and my colleague Mr Ahmed, and also some of the correspondence between yourself and Professors Wiles and King. I fully support their assertions that the Advisory Council on the Misuse of Drugs has not failed in its duty, or failed to comply with its statutory obligations in anyway. You express concern in your letter that there is an accountability issue with the ACMD's focus and with the Government's Drugs Strategy. I do not see that there is any incompatibility in the approach being taken. You also assert that the ACMD is in breach of the Code of Practice for Scientific Advisory Commitees. I refute this assertion".
• PALAD to ACMD Secretary (7 March 2005): "Could you tell me why the ACMD does not identify and refer to alcohol and tobacco as drugs in their reports? I believe this is a serious factual error that gives rise to inaccurate and misleading advice to Government. Could you also send me a copy of the minutes of the ACMD meeting in November 2004 and a copy of the advice the ACMD have given Government ... concerning magic mushrooms ...? This information may help me understand the ACMD’s methodology for assessing risk and evaluating regulatory options".

Government’s Chief Scientific Adviser, Professor Sir David King, and Home Office Chief Scientific Officer, Professor Wiles – non-compliance with science guidance:

• PALAD to King (7 June 2004): "I believe that the Advisory Council on the Misuse of Drugs may be failing to fulfil their statutory duty, failing to comply with the Code of Practise for Scientific Committees and Guidelines 2000 and failing to follow Government guidelines on risk assessment, risk management, health policy and good regulation. We have submitted a report to the Committee on Standards in Public Life about these concerns, enclosed."
  "There appears to be no independent body responsible for ensuring good practise within the ACMD. We hope you might be able to examine these issues".
• King to PALAD (1 July 2004): "Thank you also for sight of the report you provided to the Committee on Standards in Public Life. My officials have had preliminary discussions with the Home Office on the matter. I am, therefore, writing to Professor Paul Wiles, CSA of the Home Office to ask him to consider further the issues you have raised".
• Wiles to PALAD (27 July 2004): "You are right in identifying that the ACMD have not focused on alcohol, tobacco or caffeine in their work. They have chosen to focus on substances which form the focus of the Government's Drugs Strategy, these being controlled drugs. The decision by the ACMD to focus on such substances does not in any way mean that the Council is neglecting its statutory duties"."The Government believes that the most effective way of tackling the problems caused by alcohol, tobacco (and controlled drugs) is by using a full range of practical measures, based on evidence of what works. The ACMD keeps an independent watching brief on the work being done by the Government in these areas. It is in a position to be able to instigate pieces of work or offer advice to Ministers on these areas if it sees fit. I have no cause to question the independence of the ACMD".
• PALAD to Wiles (9 aug 2004): "I accept that the Home Office does not actively interfere with the independence of the ACMD’s scientific advice. However I still have concerns about the ACMD’s decision to restrict their focus to only those drugs that form the focus of Government’s Drugs Strategy. I am also concerned that the ACMD appears to limit their risk assessments and regulatory option assessments to those of the Government’s Drug Strategy and that the Government in turn limits the drugs it focuses on, its risk assessments and its regulatory options assessments to those of the United Nations"."The Government may not actively influence the ACMD’s independence but they do seem to influence it passively through failing to advise them to assess scientific evidence independently of Government policy and in line with the Act, the Code, Guidelines 2000 and Government guidelines on risk and regulation. Please let me know if it would be helpful to provide you with a list of specific problems with the Code and the Guidelines".
• Wiles to PALAD (3 Sept 2004): "Thank you for your letter of 9 August 2004. I have also had sight of your recent correspondence with Saleah Ahmed in the ACMD Secretariat. In order to expedite our correspondence, please consider my response as an answer to both letters. I must refute the assertion that you make that the Advisory Council on the Misuse of Drugs only considers drugs at the centre of the Home Office Drugs Strategy. Whilst it is true that the ACMD considers primarily those drugs which are controlled or likely to be controlled, this does not automatically correlate to those at the heart of the Drugs Strategy. As you are aware, the Government's Drugs Strategy focuses on Class A drugs, specifically Heroin and Crack Cocaine. The ACMD consider a far wider range of substances including, in the last year, Ketamine, GHB, Methylamphetamine, Khat and Benzodiazepines. I continue to have confidence in the independence and transparency of the ACMD. I hope this brings to a conclusion our correspondence on this matter".
• PALAD to King (27 Sept 2004): "My correspondence with Professor Wiles has concluded but my concerns have been reinforced by his replies. I enclose all relevant correspondence. I believe, as POST [Parliamentary Office of Science & Technology] Note 196 warns, that Government may be "using science selectively or to: justify predetermined decisions or positions, erroneously frame issues as predominantly scientific (e.g. in substituting for moral or value judgements), act as a scapegoat when things go wrong, offer undue certainty and reassurance while critical uncertainties are downplayed, and delay making contentious or complex decisions". I believe the ACMD should explain: why they do not identify and refer to alcohol and tobacco as drugs, their inconsistent use of the principle of proportionality in respect of controlled drugs and legal drugs, their implication that drugs could be harmless and their justification for any use of the precautionary principle.
  If the ACMD’s policy recommendations take non-scientific factors into account as part of their risk and regulatory assessments then that should be made transparent. These non-scientific factors should be clearly identified and distinguished from the scientific advice about drug risks – by both the ACMD and Home Office – and the evidence and rationale behind them made transparent. Compliance with the Code, Guidelines 2000 and Government guidelines on risk assessment and regulatory options assessments would be adequate in this respect.
  I have formed the opinion that openness and transparency may be seen by Government as a risk of threat to current drugs policy".
• King to PALAD (6 Oct 2004): "I note, of course, your concerns about transparency and the need to avoid the selective use of advice. I agree with you on these points. But in this case it is for the Committee itself to decide what to investigate, and to ensure it adheres to the Guidelines and Code".
• PALAD to Professor Sir Michael Rawlins, Chair of the Advisory Council on the Misuse of Drugs (6 Nov 2004): "The Government’s Chief Scientific Adviser, Sir David King, has suggested I contact you about my concerns that the Advisory Council on the Misuse of Drugs may not be complying with the Code of Practise for Scientific Committees and with their statutory duty. I have tried, and failed, to find explanations for ACMD decisions from Saleah Ahmed of the ACMD Secretariat and then, on David King’s recommendation, from Professor Wiles. By law all children in the UK are taught that alcohol and tobacco are drugs, based upon the United Nations’ definition. The Government, however, says drugs are harmful, no-one should take them and they will remain prohibited, and say this conclusion is based upon independent scientific advice from the ACMD. ACMD reports confirm that the ACMD does not identify and refer to alcohol and tobacco as drugs or advise Government about them but does advise that ‘drugs’ that are not harmless should be prohibited. The ACMD does not explain the evidence or reasoning behind their decision to exclude traditional drugs from their statutory duty to advise Government about harmful drugs, nor do they explain the evidence or reasoning behind their advice to prohibit non-traditional drugs - advice apparently inconsistent with, and disproportionate to, the regulation of traditional drugs which scientific evidence shows to be equally harmful to consumers and society. There is no indication the ACMD follow any recognised form of risk assessment or policy options assessment. I believe these problems underlie the lack of consensus about the regulation of non-medical social drugs and the increasing non-compliance of young people with laws they view as hypocritical. I believe a standard risk assessment of all drugs would show that regulations are not proportionate to risk of drug harm determined by scientific evidence but instead are proportionate to public risk tolerance determined by risk familiarity and tradition. The Treasury’s draft Managing risks to the public: appraisal guidance at http://www.hm-treasury.gov.uk/consultations_and_legislation/greenbook_consultations/consult_greenbook_index.cfm seems quite adequate for tackling these problems. "The document provides guidance for developing and assessing proposals that affect the risk of fatalities, injury and other harms to the public… The guidance also contains a tool to help structure and make explicit the evaluation of concerns that may exist about risks of fatality and harm". I hope the ACMD’s risk and regulatory assessments will follow these guidelines or provide transparent explanations why the assessments do not. I do hope you may be able to shed some light on the reasoning behind the decision to exclude traditional drugs from the ACMD’s advice. I feel particularly strongly that the ACMD must identify and refer to alcohol and tobacco as drugs and hope you agree that this is essential".
  No reply. Letter later sent to the Home Office better regulation Minister who sent it on to the ACMD Secretariat via the HO Drug Legislation & Enforcement Unit.