Government reply to Parliamentary Science and Technology Committee’s
Drug classification: making a hash of it?

13th October 2006, Cm 6941

Note: This is a Government reply only to the Science and Technology Committee, not to the ACMD’s Pathways to Problems.

 

1. Government claims that the purpose of the MDA is to impose penalties proportionate to the risks of different types of drug use:

“3. The Misuse of Drugs Act 1971 established the system by which drugs are classified. Its fundamental purpose was then and remains today to provide a framework within which criminal penalties are set with reference to the harm caused by a drug and the type of illegal activity undertaken in regard to that drug”.

Comment:
This statement is broadly correct. However the MDA only "established the system by which drugs are classified" for drugs widely used for non-medical purposes since medical drugs are classified by the Medicines Act; and even then, the 2 non-medical drugs that cause most harm were excluded, thereby classifying them as 'uncontrolled' by the MDA. It is true that penalties are intended to be proportionate to the harm caused by a drug's use but this intention is entirely undermined by (a) the exclusion of the 2 drugs that cause most harm and (b), for those drugs included, the criminalisation of not only unreasonably harmful drug use but also reasonably safe drug use.

2. Government claims the MDA is ‘fit for purpose’:

“4. The Government believes that the classification system discharges its function fully and effectively and has stood the test of time. The current 3-tier classification system allows for clear and meaningful distinctions to be made between drugs. Its familiarity and brand recognition amongst stakeholders and the public is not to be dismissed. There is a wide understanding that Class A drugs are the most dangerous substances, and therefore carry the heaviest criminal penalties whilst Class C drugs, although still harmful, are not of the same order”.

Comment:
This statement is Government’s answer to the Parliamentary Committee’s accusation that “the current classification system is not fit for purpose” because of a “lack of consistency in the rationale used to make classification decisions”. The only reasoning Government produces to support its bland assertions that the Committee is wrong are claims that the public is familiar with the current classification system thereby implying that improving it might confuse them. Government acknowledges “there is a wide understanding that Class A drugs are the most dangerous substances, and therefore carry the heaviest criminal penalties” yet this is an understanding that is factually wrong and that the Committee clearly intended to correct when it stated that “tobacco and alcohol would be ranked as more harmful than LSD and ecstasy (both Class A drugs)”.
The Government appears only concerned with avoiding upsetting public opinion rather than with their duty under the law to provide a consistent and proportionate classification system “fit for purpose”. They do not seem to care if the law prohibits safer alternatives to legally available drugs even though such an outcome cannot be the public-interest aim of the MDA.

3. Government claims its legal discretion is restricted by UN drug Conventions:

Reply to recommendation 1:
“It has always been the position of the UK Government that the United Nations Conventions, to which the UK is a signatory, do not pose a significant barrier to a change in the system by which drugs are controlled in this country. However, the Government is not free to legislate entirely as it pleases. It must do so within the parameters set by the Conventions”.

Comment:
This statement is an error of law confusing Government’s decision to ratify UN drug Conventions with Parliament’s decision NOT to incorporate UN drug Conventions into UK law. International law, like the European Convention on Human Rights, only has affect on UK law if Parliament has specifically incorporated it into UK law, as occurred when the ECHR was incorporated by the Human Rights Act over 40 years after Government had ratified the ECHR. UN drug Conventions have no more affect on the interpretation of UK law than other unincorporated international treaties that demand equality before the law and protection from discrimination.

4. Factors in Government drug policy decision making:

Reply to recommendation 31:
“Decisions made by Government on classification matters rightly attract considerable interest and, in many cases, polarise views. The Government has made significant efforts to make very clear the reasons why it has classified or reclassified a drug, whether to Parliament or the public.
The drug classification system is not a simple measure of medical or social harms caused by drugs. Whilst these measures are at its very core and cannot be overstated, it represents a more complex assessment from a wide range of sources to ensure that any decision to classify or reclassify a drug is as unbiased and objective as possible.
In response to the Committee’s findings, the Government is pleased to set out the criteria it adopts when making classification decisions.
Decisions are based on 2 broad criteria – (1) scientific knowledge (medical, social scientific, economic, risk assessment) and (2) political and public knowledge (social values, political vision, historical precedent, cultural preference). Decisions must take account of scientific knowledge of medical harms, and social and economic evidence, as well as the insight provided by public consultation, and the knowledge and understanding provided by public bodies and Government departments”.

Comment:
This is Government’s first statement ever concerning its decision making process. This is a great statement of how Government decision making should be:
(a) Government intends “to make very clear the reasons” for classification decisions;
(b) it clearly distinguishes objective factors, such as scientific knowledge, from subjective factors, such as political and public knowledge including historical precedent and cultural preference;
(c) it clearly states that objective factors, measures of “medical or social harms”, are at the classification system’s “very core and cannot be overstated”;
(d) it states that subjective factors must also be taken into account “to ensure that any decision …is as unbiased and objective as possible”.
It is not necessarily paradoxical in (d) for subjective factors to be taken into account to achieve greater objectivity. Taking into account objective evidence of subjective factors, like properly conducted public opinion polls, is valid. Relying on subjective factors unsupported by objective evidence would be invalid. So Government could take into account objective evidence of public opinion like a properly conducted social science opinion poll but Government should not take into account assumptions about public opinion that lack objective evidence or reports in the media whose objectivity may be questionable. Government certainly should not take into account the assumed opinions of the majority without considering also the opinions of minorities.

5. Justification for the unequal treatment of equally harmful legal and illegal drugs (and their consumers and suppliers):

Reply to recommendation 50:
“The Government fully agrees that the drug classification system under the Misuse of Drugs Act is not a suitable mechanism for regulating legal substances such as alcohol and tobacco. The distinction between legal and illegal substances is not unequivocally based on pharmacology, economic or risk benefit analysis. It is also based in large part on historical and cultural precedents. A classification system that applies to legal as well as illegal substances would be unacceptable to the vast majority of people who use, for example alcohol, responsibly and would conflict with deeply embedded historical tradition and tolerance of consumption of a number of substances that alter mental functioning (ranging from caffeine to alcohol and tobacco). Legal substances are therefore regulated through other means. However the Government acknowledges that alcohol and tobacco account for more health problems and deaths than illicit drugs and this is why the Government intervenes in many ways to prevent, minimise and deal with the consequences of the harms caused by these substances through its dedicated Alcohol Harm Reduction Strategy and its smoking/tobacco programme. At the core of this work, which is given considerable resources, is a series of education and communication measures aimed at achieving long term change in attitudes. It is through this that the public continues to be informed in an effective and credible manner”.

Comment:
This statement is the first time Government has presented any reasons for treating differently consumers and traders of equally harmful legal and illegal drugs.
Firstly they state that the distinction between legal and illegal drugs is not based on objective factors such as “pharmacology, economic or risk benefit analysis” since “Government acknowledges that alcohol and tobacco account for more health problems and deaths than illicit drugs”. Instead Government admits that the distinction is “based in large part” on the subjective factors of “historical and cultural precedents”. Government appears to accept the ACMD’s observation that “these distinctions are based on historical and cultural factors” but ignores their criticism that the distinctions “lack a consistent and objective basis”. Here Government admits that their decision to treat equally harmful legal and illegal drugs differently is “based in large part” on subjective factors, directly contradicting their assertion that objective factors are at the classification system’s “very core and cannot be overstated” (see 4. above). Is Government taking into account these subjective factors “to ensure that any decision …is as unbiased and objective as possible”? The reverse appears to be true. The phrase is merely a description of cultural discrimination, not a justification; both sexism and racism are examples of distinctions that are based on “historical and cultural precedents” rather than based on objective evidence of a relevant difference. The reply to Recommendation 31 also mentioned “cultural preference” as a subjective factor yet it seems certain that this factor is taken into account with bias, referring only to the preferences of the majority and not to the preferences of minorities who prefer different drugs to the majority.
The second reason Government gives for treating legal drugs differently from illegal drugs is that treating legal drugs like illegal drugs would be unacceptable to the public because it would involve prohibiting the responsible use of legal drugs. But inclusion within the Misuse of Drugs Act does not mean a drug will be prohibited. Government does not address the option of treating illegal drugs like legal drugs within the Act. This statement is however a clear indication that Government recognises that it is a justifiable distinction to distinguish between responsible, reasonably safe drug consumption or trade and irresponsible, unreasonably harmful drug consumption or trade. But is it true that legal drugs can be used responsibly but illegal drugs can not? The 2002 Home Affairs Committee report The Government’s Drug Policy: is it working? stated:
“20. While around four million people use illicit drugs each year, most of those people do not appear to experience harm from their drug use, nor do they cause harm to others as a result of their habit”.
Indeed the unacceptability of prohibition of responsible drug use is the very reason why some 10% of citizens do not comply with the blanket prohibition of illegal drugs - why should they be criminalised for using their drug of choice reasonably safely while the majority are not? To be credible, drug laws must accurately reflect the relative harms of different patterns of drug use, as they broadly do with legal drugs. Currently the Government fails to justifiably discriminate between those who consume or trade drugs reasonably safely, responsibly and those who consume or trade drugs unreasonably harmfully, irresponsibly. The Act itself makes clear it is only concerned with drug misuse “capable of having harmful effects sufficient to constitute a social problem” and NOT with drug misuse that does not “constitute a social problem”.