Background to the legal system

How democratic power should work

 

 

Unconscious social norms v conscious law:

 

As a species, humans are social animals in the process of evolving consciousness. Social animals unconsciously adopt social norms by means of imitation of role models. This ensures social coherence based on consensus – copy others and you’ll fit in. Likewise interacting human individuals may unconsciously imitate each other’s body language, ‘mirroring’, as means of social coherence. Unconscious consensus norms may be irrational, unconnected to objective evidence and reasoning, and may be unfair, applied selectively to the powerless but not to the powerful, as in scapegoating. Social animals are ruled by the powerful, based on survival of the fittest and self-interest (e.g. selfish genes).

Unlike animals, humans have the ability to make conscious decisions based on objective rationality (the objective assessment of all relevant factors and how they are linked logically by cause and effect) and subjective fairness, (the subjective balancing of value judgments since a decision or action may be good for one group but bad for another). Humans can then establish conscious rules or laws that define how their social group will operate, the limits to social behaviour. Conscious laws can be far more efficient than social norms because they can adapt to our changing society far quicker than unconscious social norms. Human societies are evolving from being based on the rule of the powerful majority, determined by social norms, towards being based on the rule of conscious law, determined by rationality and fairness.

Given their incomplete evolution of consciousness, humans find their decision making inevitably influenced by both unconscious social norms and conscious social laws – ‘if everyone drives above the speed limit, so will I’. The design of laws may be irrational and unfair if the design is overly influenced by unconscious social norms; alternatively laws consciously designed to be rational and fair may be interpreted and applied irrationally and unfairly; or both the design and application of the law may be an incompatible mixture.

 

The relevance for drug regulation is this: the social discrimination between consumers & traders of legal drugs and consumers & traders of illegal drugs is based on unconscious social norms and the rule of the powerful majority whereas the law itself, the Misuse of Drugs Act, is consciously intended to be evidence-based, rational and fair. So our fundamental claim is that the law is not implemented in accordance with the law but in accordance with social norms that favour the majority at the expense of minorities.

 

Power and democracy:

 

How is power distributed and intended to operate in a democracy? Who gets the power to create, implement and enforce the laws that will affect the less powerful citizens? What safeguards are there against the abuse of that power?
In less-developed societies power is centralised in a dictator or monarch with absolute power. But absolute power corrupts absolutely. Such societies tend to be inefficient and unstable since power is often exercised in the interest of the leader and not the society as a whole - anti-social behaviour. Those denied power will tend to respond in turn with self-interest and anti-social behaviour, the most extreme form being rebellion (e.g. English civil war, American War of Independence, French Revolution).

As societies develop in complexity, power has to be devolved to the powerless for the purely practical reasons that the society has become too complex for any one individual to manage both maintaining its stability and encouraging its growth. As a result of devolution of power democracies slowly develop.

In a democracy based on equal voting rights, there must be restrictions on the use of legal power to avoid unduly limiting the rights of individual voters. In the UK this is achieved in two ways. Firstly the power to govern - to create, implement and enforce laws - is separated into its 3 components.  Parliament has the power to create the law, the Government has the power to implement Parliament’s law, and the Courts have the power to ensure the public and Government comply with the law as intended by Parliament. Secondly power is devolved to the electorate. Parliament’s law-making power depends on the electorate and Government’s law-implementing power depends on the majority of the electorate. The electorate also have input to the Courts if they feel their rights are being unduly restricted by the Government abusing the legal power given them by Parliament. The public can then apply to the Courts for a ‘judicial review’ of Government’s decisions and actions. So the Courts’ power to prevent Government abusing its power is very much dependent on citizens asserting their rights and mounting legal challenges.

 

Separation of Powers and Parliamentary supremacy:

 

To reduce the risk of an abuse of power, the three components of power - the creation, implementation and enforcement of law - are separated: Parliament (the Legislature) are the democratically elected law-makers, Government (the Executive) are the democratically elected implementers of the law, and the Courts (the Judiciary) ensure Government compliance with Parliament’s laws. Power is balanced between these three components but ultimately Parliament has supremacy. Parliamentary supremacy is now limited by EU legislation so EU legislation is supreme where there is a conflict. International law has no effect on UK law unless Parliament ‘incorporates’ international law into domestic law. For example, the European Convention on Human Rights (ECHR) was signed (‘ratified’) by the UK Government in 1950 but it had no effect on UK courts until Parliament incorporated it into UK law in 1998 through the Human Rights Act.

The relevance for drug regulation is this: through the Misuse of Drugs Act Parliament has given Government the legal power to restrict individual rights for the sole legal purpose of reducing harm to society from drug consumption. There is no indication in the MDA text that Government should exercise their legal power unequally between drugs used by the majority of voters and drugs used by minorities. Government appears biased, using its legal power for a political purpose (gaining the support of the majority of voters) rather than the legal purpose (reducing drug harm). Parliament chose not to incorporate UN drug Conventions into UK law via the MDA. The MDA makes no mention of the UN Conventions. In contrast the HRA does require that all legislation should be compatible with ECHR.

 

Judicial review – common law prevention of abuse of power v protection of individual rights

 

The second way the risk of an abuse of power is reduced is through citizens’ right to judicial review. The courts recognise two complimentary methods of ensuring Government complies with Parliament’s law. First they can focus on the Government (or other ‘public body’) and examine whether or not they have abused their power, acted beyond their legal power or for a purpose other than the legal purpose. This is a top-down approach. Second the Courts can focus on the individual who claims their rights have been unduly restricted. This is a bottom-up approach.

These two approaches correspond to traditional ‘common law’ and more recent human rights approaches. The common law is the top-down approach, ensuring the Government’s exercise of power is within lawful limits or discretion; it does this by evaluating decisions in terms of its legality (is the decision within the power given by law?), its rationality and its fairness. The Human Rights Act is the bottom-up approach, focusing on protecting the rights of citizens; it does so by specifying certain protected rights that can only be restricted for particular public-interest purposes and in a rational (necessary, targeted, proportionate) and fair manner (consistent, non-discriminatory).

Generally both approaches recognise there should be a ‘fair balance’ between the need to restrict rights for public protection and the need to support individual rights.

 

Conclusion

 

This description of how political and legal power is balanced within the UK is inevitably a simplified idealisation of a far messier reality. It does however show how ‘majoritarianism’, where Government favours the majority of the electorate over minorities, can occur. Government’s political power depends only on the majority of the electorate so if Government acts out of self-interest rather than the public-interest they will tend to implement laws unequally, more strictly toward minorities and more liberally toward the majority. To prevent this ‘rule of the majority’ the Courts must ensure that the ‘rule of law’ is applied to majority and minorities alike, equality before the law. Failure to do so results in an abuse of process.