Legal analysis summary
UK Government's position:
"The Government's policy is and has been to regulate drugs which are classified as illegal through the 1971 Act and to regulate the use of alcohol and tobacco separately. This policy sensibly recognises that alcohol and tobacco do pose health risks and can have anti-social effects, but recognises also that consumption of alcohol and tobacco is historically embedded in society and that responsible use of alcohol and tobacco is both possible and commonplace".
The first sentence admits discrimination on the ground of legal status: the 1971 Act is used to regulate drugs classified as illegal under the Act instead of being used to regulate harmful use of drugs widely used non-medically. The Government's 'chicken-or-egg' self-reference results in a closed system - once a drug has illegal status it always will have illegal status, even if new evidence shows it to be less harmful than legally available drugs.
The second sentence claims the discrimination is justified on the grounds of tradition and responsible use. Legal drugs have been used traditionally and the majority use them responsibly. But what does responsible mean? Are they suggesting that illegal drugs cannot be used reasonably safely? This is would be untrue. And tobacco cannot be used reasonably safely. No, they are more likely referring to legal status again: responsible users do not break the law. So in the Government's view binge drinking and alcoholism are forms of responsible use while the reasonably safe use of illegal drugs is irresponsible.
Abuse of process, the inequality before the law:
Abuse of process:
- An abuse of process before prosecution prevents a fair trial.
- The abuse of process is caused by the Government (and ACMD) abusing their legal power intended by Parliament to be exercised in the public-interest, society's protection from drug harm. Instead Government misuses their legal power for political purposes, exercising their power for self-interest due to bias, a common law abuse of power. This abuse of power has the effect of infringing citizens' human rights contrary to the Human Rights Act and European Convention on Human Rights..
- Government abuses their legal power under the Misuse of Drugs Act by interpreting and implementing the Act unequally with respect to traditional drugs used by the majority of the public (ie the majority of voters and politicians), alcohol and tobacco, and equally harmful non-traditional drugs used by minorities. Government exercises their power inadequately toward drugs used by the majority of the public, alcohol and tobacco, by excluding them from the Act and excessively toward drugs used by minorities by imposing blanket prohibition of all property rights of production, trade and possession. Consumers, traders and producers of equally harmful recreational drugs are unequal before the law. As a result minorities subject to the law are discriminated against with respect to the excluded majority by being denied equal property rights while the majority excluded from the law are discriminated against with respect to included minorities by being denied the equal protection from drug harm intended by the Act.
- Government fails to justifiably discriminate types of drug harmfulness. Regulations for the non-medical use of those drugs excluded from the Act, alcohol and tobacco, distinguish between reasonably safe, responsible drug use and trade, and unreasonably harmful, irresponsible drug use and trade. Regulations for the non-medical use of those drugs included by the Act fail to make this justifiable distinction, instead applying a blanket prohibition of all property rights of possession, supply, production and export/import. The Act also fails to justifiably distinguish two distinct forms of unreasonably harmful use or trade: use or trade unreasonably harmful to the consumer or trader alone, voluntary risks, and use or trade unreasonably harmful to others, involuntary risks. Voluntary risks do not infringe human rights while involuntary risks do. The Act therefore fails to justifiably discriminate between those in different situations.
The Misuse of Drugs Act 1971 - interpretation:
The legitimate aim of the Act is to reduce risks to society from the harmful consumption of drugs.
The method applied to achieve this aim is the prohibition of property rights of possession, supply, production and import/export for non-medical use, based initially on the method used by UN drug Conventions.
This method, unlike the legitimate aim of risk reduction, is under continuous review by both the Advisory Council on the Misuse of Drugs (ACMD), independent statutory advisers to Government, and the Secretary of State for the Home Department, subject to acceptance by Parliament. The Act does not require compliance with UN drug Conventions. It is a legitimate aim of the Act for regulations and penalties to evolve with new evidence of both drug risks and of the effectiveness of alternative regulatory options.
Drugs could be licensed under the Act, along the lines of alcohol, if licensing was believed to be a more effective method of achieving the legitimate aim than prohibition. Similarly alcohol and tobacco could be prohibited under the Act if prohibition was believed to be a more effective method of achieving the legitimate aim than licensing. It is the unequal treatment of drug consumers and traders that contradicts the constitutional right to equality before the law, and Article 14 of the European Convention on Human Rights, the Prohibition of Discrimination.
The Cause - Government's common law abuse of power:
Illegality (outside the boundaries of legal power & legal purpose defined by law):
1. Ultra vires, acting beyond the limits of legal power: Government has acted beyond the boundaries of legal discretion through both excessive and insufficient use of power. Excessive power has been exercised toward minorities resulting in oppressive restrictions of their rights, thereby failing to provide equal rights of freedom; Government has failed to distinguish drug consumption and trade with harmful effects sufficient to constitute a social problem from consumption and trade that does not constitute a social problem. Insufficient power has been exercised toward the majority whose drugs have been arbitrarily excluded from the laws application, thereby failing to provide equal rights of protection.
2. Improper purpose: Government uses its legal power for an improper purpose, a political purpose rather than the legal purpose of reducing risks to the public from drug consumption. Government effectively bribes the majority of the electorate by applying laws lightly toward them, to escape the political retribution if larger numbers were affected and oppressively to minorities to prove to the majority of the electorate that Government is tackling the problem robustly elsewhere. This is majoritarian scapegoating.
Justice Jackson described majoritarian scapegoating in the US Supreme Court in Railway Express Agency Inc v New York (1949), para 112:
There is no more effective practical guarantee against arbitrary and unreasonable government than to require that the principles of law which officials would impose upon a minority must be imposed generally. Conversely, nothing opens the door to arbitrary action so effectively as to allow those officials to pick and choose only a few to whom they will apply legislation and thus to escape the political retribution that might be visited upon them if larger numbers were affected. Courts can take no better measure to assure that laws will be just than to require that laws be equal in operation.
Unfair procedure (within the boundaries of legal power defined by law):
Government takes into account and overweights the preferences of the majority while failing to take into account and underweighting the preferences of minorities.
3. Bias and apparent bias:
(a) Political bias: Government appears biased in favour of the majority of the electorate whose preferences Governments political power depends on and biased against minorities whose attitudes do not affect Governments political power.
(b) Bias by association: Government is associated with the majority who consume alcohol and tobacco since the majority of public officials interpreting and implementing the Act also consume these drugs.
(c) Economic bias: Government receives around £20 billion a year in taxation from those involved in the market for drugs excluded from the Act; this meets the Governments costs of providing drug-related public services.
4. Fettered discretion: legal discretion is unduly restricted; decisions are closed, not open to evidence that contradicts the current exercise of discretion - objective evidence of risks and regulatory effectiveness and subjective evidence of minority attitudes. The procedure of implementing the Act is unfair because it is (a) open to and dependent upon the preferences of the majority of the electorate and (b) closed to and independent of the preferences of minorities.
(a) Dependence on existing limited exercise of discretion; Government is dependent on their political purpose, based on the attitudes of the majority of the electorate, but is also dependent on compliance with UN drug Conventions that Government has ratified but Parliament has chosen not to incorporate into domestic law.
(b) Selective consideration of alternative regulatory options. Government has failed to consider any alternative regulatory options that fall within the boundaries of legal discretion. Procedural fettering results in a failure to consider all the regulatory options for achieving the legitimate aim within the scope of the discretion given by the Act. In particular, (a) for drugs controlled under the Act there is a failure to consider the less restrictive regulatory options applied to equally harmful drugs excluded from the Act; (b) for drugs excluded from the Act there has been (before Cm6941) a failure to consider the more restrictive regulatory options imposed by the Act.
(c) Selective giving of reasons for decisions, selective transparency, selective right to be informed. Before October 2006 Government had never provided reasons for the unequal treatment between drugs used by the majority and drugs used by minorities. Government has consistently failed to even identify and refer to alcohol and tobacco as drugs. Challenges to the inequality before the law have been impossible before the Government gave reasons for the difference of treatment in October 2006 (Cm6941).
(d) Selective consultation, selective public involvement, selective right to be heard & make representations.
5. Legitimate expectation: the public and Courts have a legitimate expectation that a democratic government founded on equal voting rights will implement neutral legislation equally with social inclusion in decision making. Callaghan, in introducing the Act in 1970, created a legitimate expectation that drugs, and those involved with them, would be classified according to harmfulness, that regulations and penalties would be proportionate to harmfulness and that they would evolve with new evidence of drug risks and of the effectiveness of regulatory options. By law all children in the UK are taught that alcohol and tobacco are potentially harmful recreational drugs; they too have a legitimate expectation that those involved with such drugs will be treated equally, with restrictions on their rights proportionate to objective measures of harmfulness.
Irrationality (within the boundaries of legal power defined by law): MORE - see Rational distinctions:
6. Failing to take into account, or under-weighting, relevant factors: public interest, objective evidence of equal risks and equal possibility of responsible use and trade, current inconsistent regulatory methods for achieving the same legitimate aim, alternative less-restrictive/more-restrictive regulatory options, attitudes of minorities.
7. Taking into account, or over-weighting, irrelevant factors: government self-interest, subjective factors, attitudes of the majority.
8. Irrational intent: the irrational exclusion of the two drugs that cause most harm from the scope of primary legislation aimed at reducing drug harm.
9. Irrational outcome: the irrational prohibition of drugs which are safer alternatives to legally available drugs.
The Effect - denial of citizens' human rights:
Article 14, Prohibition of Discrimination:
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.
What are the grounds for discrimination?
Currently the Act lists drug property controlled under the Act in Schedule 2 but 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. The Act also discriminates on the grounds of association with a national minority (past and continuing association with immigrant minorities) and other status, namely drug-orientation or preference (of the majority v minorities) and legal status.
Which Convention rights are applied unequally?
Article 1 of Protocol 1, the Protection of Property:
The Act denies consumers, suppliers, producers and import/exporters of drugs controlled under the Act the property rights of export/import (Section 3), supply and production (Section 4), and possession (Section 5) for the non-medical use of drugs listed in Schedule 2. The public are denied the right to peaceful enjoyment of their possessions and are deprived of possessions without compensation and/or are subject to disproportionate control of their property use. These property rights have been given by Government to those involved with the equally harmful drugs alcohol and tobacco.
Article 8, the Right to Respect for Private and Family Life:
The Act denies consumers, suppliers, producers and import/exporters of drugs controlled under the Act (a) the right to respect for autonomy and self-determination by denying the right to informed choice, and (b) the right to respect for home and private life by permitting disproportionate searches and denying the right to privately produce harmful drugs (c.f. home-brewed alcohol and home-grown tobacco). These rights to respect for private life have been given by Government to those involved with the equally harmful drugs alcohol and tobacco.
Article 5, the Right to
and Security: Liberty
The Act denies consumers, suppliers, producers and import/exporters of drugs controlled under the Act the right to liberty and security if they exercise the property and privacy rights permitted to consumers, suppliers, producers and import/exporters of equally harmful drugs arbitrarily excluded from the Act.
Article 6, the Right to a Fair Trial:
The unequal application of the Act without reasons given (the right to be informed) or opportunity to make representations (the right to be heard) is an abuse of process that prevents a fair trial. Unequal application of the legal principles of evidence of harm and culpability for harm: e.g. causation (are drug suppliers/producers responsible for harm caused by consenting adults exercising informed choice?) and mens rea (do drug consumers/traders/producers intend or knowingly cause any harm, are they reckless or negligent?).
Are the two groups being compared in a similar situation?
Yes, both consume, supply, produce and import/export equally harmful drugs for non-medical purposes.
Is there a difference of treatment?
Yes, consumers, suppliers, producers and import/exporters of drugs controlled under the Act are denied the right to liberty if they exercise the property and privacy rights permitted to consumers, suppliers, producers and import/exporters of equally harmful drugs excluded from the Act.
Does the difference of treatment have a legitimate aim?
No, the statutory scientific advisory committee, the Advisory Council on the Misuse of Drugs (ACMD), have said that the difference of treatment is based on historical and cultural factors and lack[s] a consistent and objective basis. The Government then admitted that the difference in treatment is based in large part on historical and cultural precedents. These factors are unrelated to the legitimate aim of the Act, to reduce the risks to the public from drug consumption. These factors are in fact exactly the same as those that explain but fail to justify sexism and racism.
Government also claims that equal prohibition would be unacceptable because alcohol and tobacco consumers would find it unacceptable if responsible use of their drugs was prohibited. However this argument applies equally to controlled drugs. The 2002 Home Affairs Committee report The Governments Drug Policy: is it working? stated:
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. [
Is the difference of treatment proportionate to the legitimate aim of the difference of treatment? Does it strike a fair balance between public protection and individual rights?
There is no legitimate aim of the difference of treatment. The fair balance achieved for the two analogous groups are in fact unfair unbalanced polarised extremes, one focused primarily on public protection and the other on individual rights; this cannot be justified when the legitimate aim for both groups is the same and Government acknowledges that alcohol and tobacco account for more health problems and deaths than illicit drugs.
Article 3, Prohibition of Torture:
Discrimination between those involved with equally harmful drugs is of such a degree that it constitutes degrading treatment and punishment contrary to Article 3.