Human Rights Act and European Convention on Human Rights

 

 

Introduction to the Human Rights Act & ECHR

 

Article 14 provides:

The enjoyment of the rights and freedoms set forth in this Convention shall be secured without discrimination on any ground such as sex, race, colour, language, religion, political or other opinion, national or social origin, association with a national minority, property, birth or other status.

 

Lord Nicholls in Carson at paragraph 2 described how the Court assesses discrimination cases:

“Article 14 does not apply unless the alleged discrimination is in connection with a Convention right and on a ground stated in Article 14. If this prerequisite is satisfied, the essential question for the court is whether the alleged discrimination, that is, the difference in treatment of which complaint is made, can withstand scrutiny. Sometimes the answer to this question will be plain. There may be such an obvious, relevant difference between the claimant and those with whom he seeks to compare himself that their situations cannot be regarded as analogous. Sometimes, where the position is not so clear, a different approach is called for. Then the court’s scrutiny may best be directed at considering whether the differentiation has a legitimate aim and whether the means chosen to achieve the aim is appropriate and not disproportionate in its adverse impact.”

 

The analysis of a valid discrimination claim begins with the ECHR text which specifies that:

Rights infringed: The law challenged must restrict an ECHR right(s) for the group the Applicant belongs to.

Grounds: The law challenged must apply restrictions to the Applicant’s group’s rights on the basis of an irrelevant characteristic, or ‘ground’, such as sex, race, property or ‘other status’. It does not have to be an unchangeable personal characteristic.

Case law has extended each of these:

Grounds determines the analogous comparator: The ground determines a ‘comparator group’ who must be in an ‘analogous’ situation, the only difference being the irrelevant ground. Their rights under the law being challenged are not as restricted as the Applicant’s group.

Rights infringed determines the difference of treatment: The restriction on the Applicant’s rights is compared to the restriction on the comparator group’s rights. The difference of treatment in terms of ECHR rights is then detailed.

 

Finally:

Is their an ‘objective and reasonable justification’ for the difference of treatment? This means examining if the difference in treatment has a legitimate aim, an aim defined by law and in the interest of all of the public, and if the means chosen to achieve that aim is appropriate and not disproportionate in its adverse impact. So the intended difference of treatment must (a) be logically and realistically capable of achieving the legitimate aim and (b) have an outcome that strikes a ‘fair balance’ between the benefits of public protection and the costs of restricting individual rights. Example: the death penalty for a littering offence would not strike a fair balance since the penalty is disproportionate to the risks imposed by the offence on society.

 

 

Article 14:

 

1.      Article 14 provides:

The enjoyment of the rights and freedoms set forth in this Convention shall be secured without discrimination on any ground such as sex, race, colour, language, religion, political or other opinion, national or social origin, association with a national minority, property, birth or other status.

 

2.      The Court held in Stec & Others v UK [2005], para 40, that:

The prohibition of discrimination in Article 14 thus extends beyond the enjoyment of the rights and freedoms which the Convention and Protocols require each State to guarantee. It applies also to those additional rights, falling within the general scope of any Convention article, for which the State has voluntarily decided to provide.

 

3.      In deciding if a difference of treatment contravenes Article 14 the Court must answer the questions did the difference in treatment have an objective and reasonable justification: in other words, did it pursue a legitimate aim and did the differential treatment bear a reasonable relationship of proportionality to the aim sought to be achieved?” Wandsworth London Borough Council v Michalak [2003] 1 WLR 617, para 20.

 

4.      Discrimination has two aspects. There is a negative obligation to refrain from discriminating between those in a similar situation but also a positive obligation to discriminate between those in different situations. Thlimmenos v Greece (2000) 31 EHRR 15, (para 44):

The right not to be discriminated against in the enjoyment of the rights guaranteed under the Convention is also violated when States without an objective and reasonable justification fail to treat differently persons whose situations are significantly different.

 

Grounds:

 

5.      The Act discriminates on the grounds of property, association with a national minority and ‘other status’, namely drug-orientation and legal status.

 

6.      Historically national minorities with drug preferences that differ from the drug preferences of the majority have been discriminated against by the majority on the ground of drug property. Drug preference, or drug-orientation, is a personal characteristic associated with cultural identity that is not immutable but is deeply held, like sexual orientation and religion.

The Act determines that those who manifest their different drug-orientation by exercising equal property rights have illegal status. This legal status is an immutable personal characteristic imposed on the members of the minority group. In recent times drug users with illegal status have been discriminated against on the ground of their legal status alone.

 

Property

 

7.      The Act lists drug property controlled under the Act in Schedule 2 but arbitrarily excludes the two types of drug property that cause most harm to society, alcohol and tobacco. The Act therefore discriminates on the ground of property.

 

Association with a national minority

 

8.      The discrimination between types of drug property has historically been based on a drug’s ‘association with a national minority’. A national minority is a group, “which differs from [the majority] in race, language and [/or] religion [and desires] the possibility of living peaceably alongside the population and co-operating amicably with it, while at the same time preserving the characteristics which distinguish them from the majority.” (Minority Schools in Albania Case (1935) PCIJ Ser A/B. No. 64, 17).


9.      The US Congress’ Office of Technology Assessment’s report Technologies for Understanding and Preventing Substance Abuse and Addiction, 1994, p.13, outlines the link between drug minority discrimination and national minority discrimination:

Box 1-3: Drugs and Discrimination.

In America, tensions between the majority and various minorities often hinge on concerns raised by drug use. The groups change over time and place, but the dividing issues remain remarkably similar. Those in power decide which drugs are legal and how rules should be enforced. Minorities charge that unfair policies result from prejudice, ignorance, and hypocrisy.

1850, Boston: Impoverished Irish Immigrants brought the tradition of drinking whiskey with them. In American cities, people often blamed whiskey for neighborhood quarrels. In the mid-19th century, clashes with Irish Immigrants occurred so often that police vans came to be known by the term “paddy wagons”.

1880, San Francisco: Fear of immigrant Chinese often focused on their recreational use of opium. In 1875, San Francisco outlawed opium smoking which most residents associated exclusively with the Chinese. This citywide ban became nationwide in 1909.

1882, Ohio: German immigrants’ beer drinking often brought Germans into conflict with temperance advocates. Cincinnati’s lively German community gathered at beer gardens on Sundays to sing, dance, drink, and argue politics. In 1882, Ohio’s governor denounced Germans as “Sabbath breakers, criminals, and free thinkers”.

1930s, Colorado, New Mexico: The Southwest welcomed Mexican migrants during labor shortages but during the Depression, anxiety over competition for jobs shifted to wildly exaggerated fears of the effects of marijuana use customary among Mexicans. To placate fears, Congress passed the Marijuana Tax Act of 1937, which prohibited recreational use of the drug.

Following globalisation of trade in recent decades, tolerance toward multiculturalism has grown within democratic societies. This has resulted in drugs previously used only by national immigrant minorities becoming used by minorities of the indigenous population. These indigenous minorities continue to be in ‘association with a national minority’.

 

Other status

 

Drug-orientation


10.  The Act discriminates on the ground of drug-orientation which, like sexual-orientation, is defined by preferences that differ between the majority and minorities.

 

11.  Government has recently stated that “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” and that prohibition of the non-medical use of legal drugs under the Act “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)”.

 

12.  Drugs have always been a symbol of group and cultural identity. Islam banned alcohol as a means of distinguishing itself from Christianity which had taken the drug as a sacrament. Different social groups consume different forms of drugs and have different cultures – those who smoke cigars are culturally different from those who smoke ‘rolling’ tobacco; similarly with wine and beer.

 

13.  Though not ‘an immutable characteristic’, drug preference is akin to sexual orientation and religion, characteristics that are more like deep-rooted preferences related to group and cultural identity. As such these preferences are held by individuals to be vital parts of personal development in association with others. The value of these preferences is indicated by the increasing non-compliance of otherwise law-abiding citizens with laws that prohibit drugs their group prefers and identifies with.

 

Legal status


14.  The belief that justice is based on proportionality of regulations to risk leads current generations to conclude that illegal drugs must be more harmful than the legal drugs, alcohol and tobacco. The Act discriminates between drug users based on their legal status, namely whether or not they are legitimate or illegitimate drug users.

 

15.  The Advisory Council on the Misuse of Drugs, statutory drug advisers to Government, have admitted that they have discriminated on the ground of legal status, in contrast to the European Monitoring Centre for Drugs and Drug Addiction (EMCDDA) and the World Health Organisation (WHO).

 

16.  Advisory Council: “In its first 30 years, the ACMD has focused most of its attention on drugs that are subject to the controls and restrictions of the Misuse of Drugs Act (1971). Although its terms of reference do not prevent it from doing so, the ACMD has not considered alcohol and tobacco other than tangentially. The scientific evidence is now clear that nicotine and alcohol have pharmacological actions similar to other psychoactive drugs. Both cause serious health and social problems and there is growing evidence of very strong links between the use of tobacco, alcohol and other drugs. For the ACMD to neglect two of the most harmful psychoactive drugs simply because they have a different legal status no longer seems appropriate”.

 

17.  The European Monitoring Centre for Drugs and Drug Addiction’s Guidelines for the risk assessment of new synthetic drugs, 1998, states “consider the risks of a drug, independently of its legal status. The first phase of the scientific risk assessment of a particular drug should be carried out independently of its legal status”.

 

18.  WHO’s website suggests many organisations discriminate between drugs on the ground of legal status: “WHO is the only agency dealing with all psychoactive substances, regardless of their legal status”.

 

19.  The trend toward eliminating discrimination on the ground of legal status mirrors the social trends concerning the elimination of discrimination on the ground of legal status of birth. Marckx v Belgium [1979], para 41. (Application no. 6833/74):

“It is true that, at the time when the Convention of 4 November 1950 was drafted, it was regarded as permissible and normal in many European countries to draw a distinction in this area between the "illegitimate" and the "legitimate" family. However, the Court recalls that this Convention must be interpreted in the light of present-day conditions (Tyrer judgment of 25 April 1978, Series A no. 26, p. 15, para. 31)”.

 

Strict scrutiny

 

20.  The Applicant asserts that the nature of the discrimination based on drug property is similar to the most severe grounds of sex and race and that therefore strict scrutiny is required.

 

21.  The common fundamental feature that underlies all these severe grounds is a gross disrespect for human dignity.

 

22.  The disrespect is based on stereotyping, where a socially inclusive group is split into opposites with one opposite, the majority or the powerful, viewed as ‘good’ and acceptable while the other, minorities or the powerless, is viewed as ‘bad’ and unacceptable. Responsibility for all harm to society is allocated selectively to the minority. [MORE] Splitting costs & benefits. Denial of own costs & projection onto opposite. Denial at international, regional & national levels, as well as public.

 

23.  The ‘bad’ category acts as a scapegoat for the good, its social exclusion being an unconsciously intended method of removing the harm, now identified with a specific minority group, from the social group. This method of achieving the legitimate aim is not even theoretically effective, so not suitable or proportionate.

 

24.  Such gross disrespect is maintained by socially acceptable derogatory language: ‘addicts’, ‘dealers’/‘pushers’ are ‘evil’ in comparison to those dependent on or supplying equally harmful drugs that are excluded from the MDA. Likewise language is used to deny that legal drugs are drugs at all by identifying only illegal drugs as ‘drugs’ and using the phrase ‘substance misuse’ to mean ‘harmful drug use (irrespective of legal status)’.

 

25.  Unconscious discrimination results in bias when assessing drugs risks, regulatory options, culpability and sentencing. The majority receive preferential treatment while minorities receive detrimental treatment.

 

Ambit:

 

Article 1-1:

 

26.  Article 1 of Protocol 1 provides:

Every natural or legal person is entitled to the peaceful enjoyment of his possessions. No one shall be deprived of his possessions except in the public interest and subject to the conditions provided for by law and by the general principles of international law.

The preceding provisions shall not, however, in any way impair the right of a State to enforce such laws as it deems necessary to control the use of property in accordance with the general interest or to secure the payment of taxes or other contributions or penalties.

 

27.  The Misuse of Drugs Act prohibits, in relation to non-medical use, the exercise of the property rights of export/import (Section 3), supply and production (Section 4), and possession (Section 5) for drugs listed in Schedule 2. Those exercising property rights for drugs with illegal status are denied the right to peaceful enjoyment of their possessions and are deprived of possessions without compensation or, alternatively, suffer disproportionate control of their property contrary to the general interest. This falls within the scope of Article 1 of Protocol 1.

 

28.  Article 1 of Protocol 1 only applies to existing legal property rights but property rights concerning those drugs with illegal status fall within the ambit of the Article. Government permits and respects property rights for those involved with some drugs that cause significant harm to society, alcohol and tobacco, by controlling their use ‘in accordance with the general interest’. However such respect is not extended to those involved with drugs with illegal status who suffer property deprivation without compensation. Deprivation can be established by an owner being deprived of “all meaningful use” of the property (Fredin v Sweden (No 1) (1991) 13 EHRR 784, paragraphs 41-45).

 

29.  The existence of property rights is assumed unless objective and rational reasons justify their restriction. The Universal Declaration of Human Rights, Article 17 states:

1. Everyone has the right to own property alone as well as in association with others.
2. No one shall be arbitrarily deprived of his property.

 

Article 8:

 

30.  Article 8 provides:

1. Everyone has the right to respect for his private and family life, his home and his correspondence.
2. There shall be no interference by a public authority with the exercise of this right except such as is in accordance with the law and is necessary in a democratic society in the interests of national security, public safety or the economic well-being of the country, for the prevention of disorder or crime, for the protection of health or morals, or for the protection of the rights and freedoms of others.

 

31.  Article 17, International Covenant on Civil and Political Rights

1. No one shall be subjected to arbitrary or unlawful interference with his privacy, family, home or correspondence, nor to unlawful attacks on his honour and reputation.

2. Everyone has the right to the protection of the law against such interference or attacks.

 

32.  Respect for private life in areas of autonomy, personal responsibility (ESC quote), consent, and informed choice. Respect for home in areas of privacy (cf searches), unlicensed home drug production (Niemitz).

 

33.  According to the Court, “a minority group is in principle entitled to claim the right to respect for the particular life-style it may lead as being 'private life', 'family life' or 'home'” under Article 8 of the Convention. G and E v Norway (1983) 35 DR 30 at p.35.

 

34.  Pretty, para 62:

The Court would observe that the ability to conduct one's life in a manner of one's own choosing may also include the opportunity to pursue activities perceived to be of a physically or morally harmful or dangerous nature for the individual concerned. The extent to which a State can use compulsory powers or the criminal law to protect people from the consequences of their chosen lifestyle has long been a topic of moral and jurisprudential discussion, the fact that the interference is often viewed as trespassing on the private and personal sphere adding to the vigour of the debate. However, even where the conduct poses a danger to health or, arguably, where it is of a life-threatening nature, the case-law of the Convention institutions has regarded the State's imposition of compulsory or criminal measures as impinging on the private life of the applicant within the meaning of Article 8 1 and requiring justification in terms of the second paragraph.

 

In Botta v Italy (1998) 26 EHRR 241 at para. 32 the ECtHR stated that: "...private life...includes a person’s physical and psychological integrity; the guarantee afforded by Article 8 is primarily intended to ensure the development, without outside interference, of the personality of each individual in his relations with other human beings".

 

 

 

Consumption and possession:

 

35.  Government provides consumers of drugs used by the majority, and by decision makers themselves – alcohol and tobacco – the consumer rights of autonomy, informed choice and individual responsibility for lifestyle choices affecting health. Prime Minister Tony Blair, in introducing the 2004 National Alcohol Strategy for England, said, “it is vital that individuals can make informed and responsible decisions about their own levels of alcohol consumption”. The Government’s 1998 Smoking Kills White paper stated: ‘We are not banning smoking… Government is determined not to infringe upon people’s rights to make free and informed choices”.

 

Article 9:

 

36.  Article 9 provides:

1) Every one has the right to freedom of thought, conscience and religion; this right includes the freedom to change his religion or belief and freedom, either alone or in community with others and in public or private, to manifest his religion or belief, in worship, teaching, practice and observance.

2) Freedom to manifest one’s religion shall be subject only to such limitations as are prescribed by law and are necessary in a democratic society in the interest of public safety, for the protection of public order, health and morals, or for the protection of the rights and freedoms of others.

 

37.  Government has given those exercising property rights for alcohol and tobacco the right to ‘alter mental functioning’ but denies that right to those exercising property rights for equally or less harmful drugs, irrespective of whether or not the exercise of property rights was responsible or irresponsible.

 

 

Article 5: Right to Liberty and Security

1. Everyone has the right to liberty and security of person. No one shall be deprived of his liberty save in the following cases and in accordance with a procedure prescribed by law:

(a) the lawful detention of a person after conviction by a competent court;

(b) the lawful arrest or detention of a person for non-compliance with the lawful order of a court or in order to secure the fulfilment of any obligation prescribed by law;

(c) the lawful arrest or detention of a person effected for the purpose of bringing him before the competent legal authority on reasonable suspicion of having committed an offence or when it is reasonably considered necessary to prevent his committing an offence or fleeing after having done so;

(d) the detention of a minor by lawful order for the purpose of educational supervision or his lawful detention for the purpose of bringing him before the competent legal authority;

(e) the lawful detention of persons for the prevention of the spreading of infectious diseases, of persons of unsound mind, alcoholics or drug addicts or vagrants;

(f) the lawful arrest or detention of a person to prevent his effecting an unauthorised entry into the country or of a person against whom action is being taken with a view to deportation or extradition.

2. Everyone who is arrested shall be informed promptly, in a language which he understands, of the reasons for his arrest and of any charge against him.

3. Everyone arrested or detained in accordance with the provisions of paragraph 1(c) of this Article shall be brought promptly before a judge or other officer authorised by law to exercise judicial power and shall be entitled to trial within a reasonable time or to release pending trial. Release may be conditioned by guarantees to appear for trial.

4. Everyone who is deprived of his liberty by arrest or detention shall be entitled to take proceedings by which the lawfulness of his detention shall be decided speedily by a court and his release ordered if the detention is not lawful.

5. Everyone who has been the victim of arrest or detention in contravention of the provisions of this Article shall have an enforceable right to compensation.

 

38.  Government does not restrict the right to liberty for those involved with alcohol and tobacco but does so for those involved with equally or less harmful drugs.

 

 

Justification

 

Analagous comparator:

 

1.      Alcohol and tobacco are psychoactive drugs which have “harmful effects sufficient to constitute a social problem”. They are analagous to the psychoactive drugs controlled under the Act. The United Nations International Drug Control Programme answers the question “what are drugs?” stating:

A very basic question but one that needs to be clarified. For, if we start thinking of drugs as just the substances that cause problems or are abused by people we know, then we are likely to ignore other substances that, for one reason or another, are not thought of as drugs by our immediate communities. A psychoactive substance is any substance people take to change either the way they feel, think, or behave. This description covers alcohol and tobacco as well as other natural and manufactured drugs.

2.      In 2006 the Advisory Council made plain for the first time the similarity between psychoactive drugs with legal status and those with illegal status:

They are consumed with the same intent: “a large proportion of young people use tobacco, alcohol and other drugs in the pursuit of pleasure, solace, acceptance or escape”.

They act on the brain in the same way: “Such drugs all act on the same areas of the brain, altering its normal function and hence the user’s experience”.

They have the same potential to cause harm: alcohol and tobacco’s “harmfulness to individuals and society is no less than that of other psychoactive drugs”.

They are viewed as the same by young people: “While tobacco, alcohol and other drugs all have differing legal status, many young people do not appear to recognise these distinctions”.

The Advisory Council concluded:

At present, the legal framework for the regulation and control of drugs clearly distinguishes between drugs such as tobacco and alcohol…, drugs which are covered by the Misuse of Drugs Act (1971) and drugs which are classed as medicines. …these distinctions are based on historical and cultural factors and lack a consistent and objective basis.

3.      Those exercising property rights of consumption, possession, supply, production and export/import in relation to psychoactive drugs with illegal status are in an analogous situation to those exercising such rights in relation to psychoactive drugs with legal status.

 

Difference of treatment:

 

4.      There is a difference of treatment in terms of Article 1 of Protocol 1, respect for property rights. Those involved with drug property excluded from the Act may exercise all property rights, restricted only in the public interest for taxation, consumer protection and public protection. Those involved with drug property controlled under the Act, including less harmful drugs, are denied all property rights.

5.      There is also a difference of treatment in terms of Article 8 including respect for private life in areas of autonomy, personal responsibility, consent, and informed choice and in areas of reputation and dignity; and in terms of respect for the home in areas of privacy (cf searches) and unlicensed home drug production.

6.      There is also a positive obligation under Article 14 to distinguish between drug use that is reasonably safe - ‘peaceful’ use as described by Article 1-1 or ‘responsible’ use as described by Government - and drug use that may have ‘harmful effects sufficient to constitute a social problem’ as described by Section 1 of the Act. There is a difference of treatment in terms of this positive obligation. This justifiable distinction is applied to drugs with legal status but the Act fails to apply this distinction in the similar case of drugs with illegal status.

7.      The Advisory Council describes some of the difference in treatment relating to prosecution, sentencing and marketing:

“While prosecutions for the sale and possession of illegal drugs are common, prosecutions of vendors of cigarettes or alcohol to underage customers are very rare”.

There are “heavy penalties for the sale and possession of illegal drugs” and “controls on the availability, pricing and marketing … of illegal drugs [are] already highly restrictive”. In contrast the Advisory Council states “given what is now known about tobacco … it seems entirely unjustified that such a dangerous drug, clearly labelled as lethal, should still be sold to minors” and that “alcohol companies have considerable freedom to market their products to young people using the full panoply of product development, advertising and other techniques”.

 

Government justification for difference of treatment:

 

8.      In 2006 Government replied to the Parliamentary Committee’s 2006 report. Government assures that their intention is to ensure that decisions are unbiased and objective: [Reply to rec 31]

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.

Government then distinguishes two types of factors they consider relevant to classification decisions, objective factors and subjective factors:

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.

 

9.      Government provided a justification for the difference in treatment for the first time:

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.

 

10.  This justification can be broken down into three components:

        “The distinction between legal and illegal substances is not unequivocally based on pharmacology, economic or risk benefit analysis”. Government does not assert that the objective factors of “pharmacology, economic or risk benefit analysis” justify any difference in treatment.

        “The distinction between legal and illegal substances is … based in large part on historical and cultural precedents” and “cultural preference”. Equal treatment, referring only to equal prohibition of property rights under the Act, would “conflict with [the] deeply embedded historical tradition and tolerance of consumption of a number of substances that alter mental functioning (ranging from caffeine to alcohol and tobacco)”.

        Equal treatment, referring only to equal prohibition of property rights under the Act, “would be unacceptable to the vast majority of people who use, for example alcohol, responsibly”.

The latter two justifications appear to show that Government believes that prohibition is a legitimate aim of the Act that cannot be altered. This is not the case. The legitimate aim of the Act is to reduce risks to the public from the harmful use of all drugs. Prohibition is the method applied to achieve this aim, and this method, unlike the legitimate aim of risk reduction, is under continuous review by both the Advisory Council (Section 1 of the Act) and the Secretary of State for the Home Department (Sections 2.2, 7, 10, 22 and 31). Equal treatment under the Act could be achieved by alternative methods to prohibition of property rights such as strict licensing.

 

11.  A fourth possible justification will also be considered. Government indirectly suggests UN drug Conventions may justify the difference in treatment in that “Government is not free to legislate entirely as it pleases”.

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.

Does the difference in treatment have a legitimate aim?

 

12.  Supporting historical precedence and cultural preference as a legitimate aim:

 

Equal treatment – equal prohibition or equal licensing for non-medical use:

 

13.  The public unacceptability of prohibition of responsible non-medical drug use: suitability

        Government asserts that prohibition of property rights under the Act would be unacceptable to the vast majority of people who use, for example alcohol, responsibly”. This is equally true of “the vast majority of people” who use drugs with illegal status responsibly. Widespread and increasing non-compliance with the Act by otherwise law-abiding citizens demonstrates that prohibition of responsible use is unacceptable to both the majority of the public and minorities with different preferences.

The Parliamentary Home Affairs Committee confirmed that the majority who use drugs with illegal status do so responsibly:

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.

        Discrimination between responsible and irresponsible drug use “sufficient to constitute a social problem” (Section 1 of the Act) is a legitimate aim of the Act and a positive obligation under Article 14 and so justifies a difference of treatment between these groups. Thlimmenos v Greece (2000) 31 EHRR 15, (para 44):

The right not to be discriminated against in the enjoyment of the rights guaranteed under the Convention is also violated when States without an objective and reasonable justification fail to treat differently persons whose situations are significantly different.

‘Responsible use’ is equivalent to ‘peaceful use’ in Article 1 Protocol 1. Blanket prohibition of all use of drugs conflicts with this aim. Equal treatment of the majority and of minorities with different drug preferences requires a method of achieving the legitimate aim of reducing risks to the public which justifiably discriminates between responsible and irresponsible use.

        The Act does attempt to distinguish responsible and irresponsible use in that Section 7 permits licenses only to those with both medical and scientific intent and medical and scientific professional status. However neither of these factors is relevant to the outcome, whether or not use results in “harmful effects sufficient to constitute a social problem”. The legitimate aim of the Act is based on outcome, not on intent or professional status, so the method used by the Act should distinguish harmful use “sufficient to constitute a social problem” from use that does not “constitute a social problem”. Evidence suggests that controlled drugs prescribed by those licensed under Section 7 do give rise to ‘harmful effects sufficient to constitute a social problem”. This method of distinguishing responsible and irresponsible use is not then suitable for achieving the legitimate aim.

        Blanket prohibition fails to target the problem, harmful drug use, instead targeting all use, a consequence that is both unacceptable to responsible consumers and unsuitable for achieving the legitimate aims of the Act.

        Evidence that prohibition of property rights is not a suitable method for achieving the legitimate aim of protecting the public comes from the United States. Alcohol prohibition failed due to its public unacceptability and the consequent growth in a black market. More recently the experience of alcohol prohibition failure has lead to the US Supreme Court ruling that tobacco prohibition would not be a suitable means of protecting the public. The Advisory Council’s Chairman gave oral evidence to the Parliamentary Committee’s inquiry stating:

Q127 Chairman: Bearing in mind that alcohol probably kills directly or indirectly about 32,000 people a year, tobacco 130,000 people a year, and those deaths are far in excess of all the deaths caused by the use of all illicit drugs, why is your committee not enabled to look at tobacco and alcohol as well as all the other substances?

Professor Sir Michael Rawlins: I think the idea that we would control tobacco and alcohol in the form of the Misuse of Drugs Act (which would thereby render them illegal in terms of possession or supply) - the Americans tried this in Prohibition days in the 1930s, and it was a disaster and just encouraged crime, and quite clearly it is not a practicable proposition.

Q128 Chairman: But, Professor Rawlins, that is exactly what has happened in terms of the drugs classification system. It is exactly what happened with the prohibition of alcohol in the States.

Professor Sir Michael Rawlins: I would not disagree with that.

The US Supreme Court in FOOD AND DRUG ADMINISTRATION v. BROWN & WILLIAMSON TOBACCO CORPORATION [2000] 529 U.S.:

“The FDA concluded that nicotine is a “drug” within the meaning of the Food, Drug, and Cosmetic Act (FDCA or Act), 52 Stat. 1040, as amended, 21 U. S. C. 301 et seq., and that cigarettes and smokeless tobacco are “combination products” that deliver nicotine to the body. 61 Fed. Reg. 44397 (1996)” [p.1].

the FDA found that, because of the high level of addiction among tobacco users, a ban would likely be “dangerous.” Id., at 44413” [p.16].
a black market offering cigarettes even more dangerous than those currently sold legally would likely develop. Ibid” [p.16].

“The FDA therefore concluded that, “while taking cigarettes and smokeless tobacco off the market could prevent some people from becoming addicted and reduce death and disease for others, the record does not establish that such a ban is the appropriate public health response under the act.” Id., at 44398” [p.16].

 

14.  Reasons are not ‘relevant and sufficient’. The difference in treatment conflicts with the primary legitimate aim of the Act and the legitimate reasons for restricting rights associated with Article 8 and Article 1 of Protocol 1. There can be no legitimate aim to the prohibition of safer alternatives to legally available drugs. A legitimate aim of the Act is to ensure that penalties are proportionate to objective risks to the public. The Parliamentary Committee:

78 The stated purpose of the classification system is to classify harmfulness so that the penalties for possession and trafficking are proportionate to the harm associated with a particular drug.

96 a paper authored by experts including Professor Nutt, Chairman of the ACMD [the Advisory Council] Technical Committee, which we have seen in draft form, found no statistically significant correlation between the Class of a drug and its harm score. … the paper asserted that “The current classification system has evolved in an unsystematic way from somewhat arbitrary foundations with seemingly little scientific basis”. The paper also found that the boundaries between the Classes were entirely arbitrary.

106. One of the most striking findings highlighted in the paper drafted by Professor Nutt and his colleagues was the fact that, on the basis of their assessment of harm, tobacco and alcohol would be ranked as more harmful than LSD and ecstasy (both Class A drugs).

Summary: we have identified significant anomalies in the classification of individual drugs and a regrettable lack of consistency in the rationale used to make classification decisions. …we have concluded that the current classification system is not fit for purpose.

The “paper authored by experts including Professor Nutt, Chairman of the ACMD Technical Committee” appears as Appendix 14 of the Parliamentary Committee’s report and states:

        Our findings raise questions about the validity of the current MDAct classification, despite the fact that this is nominally based on an assessment of risk to users and society. This is especially true in relation to psychedelic type drugs. They also emphasise that the exclusion of alcohol and tobacco from the MDAct is, from a scientific perspective, arbitrary.

        Our findings reveal no clear distinction between socially accepted and illicit substances.

The drugs of the instant case are all psychedelic hallucinogens, including LSD and ecstasy.

 

Proportionality of the method of prohibition to the aim of reducing risks to the public:

        The Parliamentary Home Affairs Committee’s confirmation that that the majority who use drugs with illegal status do so responsibly, as is the case with drugs with legal status, shows that there is no objective and reasonable relationship between the production and supply of drugs and their harmful use by a minority of consumers. Consequently there can be no objective and reasonable relationship between the method applied by the Act, prohibition of property rights for non-medical use, and the legitimate aim of the Act, reducing risks to the public.

 

Margin of appreciation:

          

o         

          

          

This non-discriminatory norm is already fully embedded in society – no defence that more time for social adjustment is needed.

        UN’s The Regulation-Legalisation Debate 1997 admits that discrimination based on cultural tradition is not likely to be credible or effective in the long-term:

The discussion of regulation has inevitably brought alcohol and tobacco into the heart of the debate and highlighted an apparent inconsistency whereby use of some dependence creating drugs is legal and of others is illegal. The cultural and historical justifications offered for this separation may not be credible to the principal targets of today’s anti-drug messages – the young. If it is accepted that education and prevention are the most effective, long-term strategies against drug abuse, then planning a drug control regime for the next century should tackle this problem and its implications for both the developing and the developed world.

        The European Monitoring Centre for Drugs and Drug Addiction (EMCDDA), Guidelines for the risk assessment of new synthetic drugs, 1999, provides an objective analysis of risk assessment and evaluation of regulatory options:

Chapter 1 Basic principles for risk assessment

In accepting its assignment to assess the risks of new synthetic drugs, the EMCDDA's Scientific Committee adopted the following basic principles.

1. Consider a dual definition of 'risk'.

The concept of 'risk' should be understood in its dual sense, which includes both the element of probability that some harm may occur (usually defined as 'risk') and the degree of seriousness of such a harm (usually defined as 'hazard'). If possible, both elements should be evaluated in the final phase of the risk-assessment process. In addition, and where feasible, a risk-benefit ratio should be assessed for each candidate drug.

2. Consider the risks of a drug, independently of its legal status.

The first phase of the scientific risk assessment of a particular drug should be carried out independently of its legal status.

3. Consider a wide range of options for control.

Consideration of appropriate measures and possible consequences of controlling new synthetic drugs should cover a wide range of options and should not necessarily imply prohibition and law enforcement.

4. Consider scientific evidence on a new synthetic drug in relation to better-known drugs.

Since scientific evidence on new synthetic drugs will, by definition, often be limited, it will thus be necessary to evaluate the possible risks of these drugs with reference to similar known drugs. Consistent with principle 2 above, such comparisons need not be restricted to illegal drugs but may include legal substances with similar chemical characteristics, pharmacological actions or psychological and behavioural effects, or which offer relevant insights into the social risks presented by the drug. Similarly, when assessing the possible consequences of prohibition, taking note of principle 3, it may be appropriate to examine relevant examples of control models involving legal or illegal substances. Consider weighting separately the issues of reliability and relevance.

In the final evaluation, the issues of reliability of information (quality) as well as the relevance of the specific risk issues involved (health and social risks and consequences of prohibition) should be weighted separately. The final policy consequences of risk assessment should be decided within the framework of national or local drug policy priorities.

In the UK the ACMD should apply a similar assessment of risk and regulatory options, as should WHO and UN at international level, in particular comparing the risks of a drug with other legal and illegal drugs and comparing alternative regulatory options such as licensing for medical purposes and licensing for recreational purposes.

 

Article 3

 

Smith & Grady v UK (1999)

2.  The Court recalls that ill-treatment must attain a minimum level of severity if it is to fall within the scope of Article 3 of the Convention. The assessment of that minimum is relative and depends on all the circumstances of the case, such as the duration of the treatment and its physical or mental effects (see the Ireland v. the United Kingdom judgment of 18 January 1978, Series A no. 25, p. 65, 162).

It is also recalled that treatment may be considered degrading if it is such as to arouse in its victims feelings of fear, anguish and inferiority capable of humiliating and debasing them and possibly breaking their physical or moral resistance (see the Ireland v. the United Kingdom judgment cited above, pp. 66-67, 167). Moreover, it is sufficient if the victim is humiliated in his or her own eyes (see the Tyrer v. the United Kingdom judgment of 25 April 1978, Series A no. 26, p. 16, 32).

121. the Court would not exclude that treatment which is grounded upon a predisposed bias on the part of a heterosexual majority against a homosexual minority of the nature described above could, in principle, fall within the scope of Article 3 (see, mutatis mutandis, the Abdulaziz, Cabales and Balkandali v. the United Kingdom judgment of 28 May 1985, Series A no. 94, p. 42, 90-91).

Cyprus v Turkey (2001):

The application presented several grievances (missing and displaced persons, living conditions in northern Cyprus) The Court concluded that the discriminatory living conditions imposed by Turkey on Greek Cypriots in the northern part of the island (isolation, restrictions on their movements, controls and lack of prospects for renewing or developing their community) are contrary to Article 3 ECHR.
"For the Court it is an inescapable conclusion that the interferences at issue were directed at the Karpas Greek-Cypriot community for the very reason that they belonged to this class of persons. The treatment to which they were subjected during the period under consideration can only be explained in terms of the features which distinguish them from the Turkish-Cypriot population, namely their ethnic origin, race and religion. The Court would further note that it is the policy of the respondent State to pursue discussions within the framework of the inter-communal talks on the basis of bi-zonal and bi-communal principles (.) The respondent State's attachment to these principles must be considered to be reflected in the situation in which the Karpas Greek Cypriots live and are compelled to live: isolated, restricted in their movements, controlled and with no prospect of renewing or developing their community. The conditions under which that population is condemned to live are debasing and violate the very notion of respect for the human dignity of its members.
In the Court's opinion, and with reference to the period under consideration, the discriminatory treatment attained a level of severity which amounted to degrading treatment." (Par. 309 and 310)

 

Conclusion

 

Court agrees then massive international repercussions; if court does not agree then massive repercussions for those victims of discrimination whose only hope of equality before the law lies with ECtHR.