The Misuse of Drugs Act 1971 - interpretation

 

The Claim:

 

1.      The Misuse of Drugs Act 1971 unjustifiably discriminates between consumers, possessors, suppliers, producers and import/exporters of equally harmful drugs, namely drugs used by minorities and drugs used by both the majority of the public and the majority of decision-makers involved with implementing the Act.

In relation to those drugs currently controlled under the Act, the Act fails to justifiably discriminate between drug use (consumption or trade) which causes significant harm to individuals and society and use that does not, thereby failing to justifiably discriminate between irresponsible, unreasonably harmful use of drugs and responsible, reasonably safe use. The Act also fails to distinguish two distinct forms of unreasonably harmful use: use unreasonably harmful to the consumer or trader alone and use unreasonably harmful to others. This is a justifiable distinction since the former does not infringe human rights while the latter does.

 

2.      The Act appears neutral in that its legitimate aim is the reduction of risks to society from the harmful use of all drugs. The method used to achieve this aim is the blanket prohibition of all property rights for non-medical use of those drugs listed but the two drugs which cause most harm to society, alcohol and tobacco, are excluded without explanation, thereby permitting their non-medical use.

 

3.      The Act’s discrimination between drugs used by the majority and those used by minorities contravenes Article 14 of the European Convention on Human Rights, based on the grounds of property, association with a national minority and legal status, and falling within the ambits of Article 1 of Protocol 1, the right to peaceful enjoyment of property, Article 8, the right to respect for private life and home and Article 5, the right to liberty. Discrimination is of such a degree that it constitutes degrading treatment contrary to Article 3, the prohibition of degrading treatment and punishment.

 

4.      “The European Convention on Human Rights and Fundamental Freedoms is intended to guarantee not rights that are theoretical or illusory but rights that are practical and effective”. Airey v Ireland [1979] ECtHR Series A no.32, para 24.

“The Convention is a living instrument which, as the Commission rightly stressed, must be interpreted in the light of present-day conditions”. Tyrer [1978] Series A no. 26, p. 15, para. 31.

 

 

Interpretation and background:

 

 

Legitimate aims of the Act

 

Primary legitimate aim:

 

5.      The primary legitimate aim of the Act is to reduce risks to the public from the consumption of non-medical drugs whose harmful effects constitute a social problem.

 

6.      The title of the Act refers to ‘misuse’ and to ‘drugs’. Drugs controlled under the Act are termed ‘controlled drugs’ in Section 2 and are listed in Schedule 2. The word ‘drugs’ is not synonymous with the phrase ‘controlled drugs’. The Act, Section 1, therefore applies to all non-medical drugs and is not restricted to controlled drugs.

 

7.      ‘Misuse’ is defined in Section 37, Interpretation, subsection (2), and refers only to consumption:

37. Interpretation.

(2) References in this Act to misusing a drug are references to misusing it by taking it; and the reference in the foregoing provision to the taking of a drug is a reference to the taking of it by a human being by way of any form of self-administration, whether or not involving assistance by another.

Possession, supply, production and import/export of drugs are not forms of drug misuse.

 

8.      Section 1 further clarifies the ‘misuse’ with which the Act is concerned. Drug misuse must appear to have ‘harmful effects sufficient to constitute a social problem’. Drug use which does not have ‘harmful effects sufficient to constitute a social problem’ does not fall within the scope of the Act.

 

Secondary legitimate aim:

 

9.      The secondary legitimate aim of the Act is to ensure that regulations applied by the Act that restrict individual rights, and penalties for breach of regulations, are proportionate to the risks caused by harmful drug consumption. The principle of proportionality is an established requirement of all law. The Government’s duty to consult the ACMD is a procedural safeguard to ensure Government does not use its discretion arbitrarily.

The 2006 report of the Parliamentary Committee on Science and Technology (‘The Parliamentary Committee’), Drug Classification: making a hash of it?:

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.

 

Third legitimate aim:

 

10.  A third legitimate aim of the Act is to ensure that the Act’s classification system is evidence-based and under continuous review. This is required to ensure the secondary aim of proportionality in the light of emerging new evidence.

ACMD have duty of continuous review: The Act firstly establishes a statutory advisory committee, the Advisory Council on the Misuse of Drugs (‘The Advisory Council’), to independently review emerging evidence of both drug risks and the effectiveness of alternative regulatory restrictions.

(a) Risks: “It shall be the duty of the Advisory Council to keep under review the situation in the United Kingdom with respect to drugs which are being or appear to them likely to be misused and of which the misuse is having or appears to them capable of having harmful effects sufficient to constitute a social problem” (Section 1(2)).

(b) Regulations: The Advisory Council’s duty includes providing Government with “advice on measures (whether or not involving alteration of the law) which in the opinion of the Council ought to be taken for preventing the misuse of such drugs or dealing with social problems connected with their misuse, and in particular on measures which in the opinion of the Council ought to be taken—(a) for restricting the availability of such drugs or supervising the arrangements for their supply;” (Section 1(2))”.

SSHD has power to review: The Secretary of State for the Home Department (SSHD) also has considerable power to review drug regulations under Section 2(2), Section 7, 10, 22 and Section 31.

All regulatory methods of achieving the primary legitimate aim of reducing risks to the public are open to ACMD & SSHD. Drugs could be licensed for non-medical use under the Act, along the lines of alcohol and tobacco, if such licensing was believed by the Advisory Council and the SSHD to be a more effective method of achieving the legitimate aim than prohibition of non-medical use. Similarly alcohol and tobacco could be prohibited under the Act if prohibition of non-medical use was believed to be a more effective method of achieving the legitimate aim than licensing. Equal treatment under the Act would be a matter for the Advisory Council and Government to decide – their discretion in terms of suggesting changes to the Act’s regulations is not fettered by the Act to prohibition of property rights since the Act’s regulations are intended to be under continuous review. Controlled drugs can be treated unequally under the Act if there are sufficient objective differences to justify such difference of treatment.
To achieve this third aim of the Act, Section 1 must apply to all potentially harmful drugs and not only apply to existing controlled drugs.

 

11.  In part this aim of the Act to evolve with new evidence stemmed from concerns about the classification system expressed by the Advisory Council’s predecessors, the non-statutory Advisory Committee on Drug Dependence (ACDD). In 1968 the Hallucinogens Subcommittee of the ACDD published their report on cannabis following a decade of changing public attitudes to drugs classified as illegal. The Wootton Report discussed the historical problems of classifying drugs according to harmfulness:

61. … All in all, it is impossible to make out a firm case against cannabis as being potentially a greater personal or social danger than alcohol. What can be said is that alcohol, with all its problems, is in some sense the "devil we know"; cannabis, in Western society, is still an unknown quantity.

62. Tobacco-smoking is, of course, the most widespread "drug-addiction" in our society. …

63. To make a comparative evaluation between cannabis and other drugs is to venture on highly subjective territory. The history of the assessments that have been given to different drugs is a warning against any dogmatic judgment.

64. Tobacco was once the object of extreme judgments. In the 17th century a number of countries attempted to restrict or forbid its use, but without success. …

65. Even non-alcoholic beverages that are now in common use have, in their time, been regarded as gravely dangerous. As late as the beginning of this century the Regius Professor of Physic at Cambridge along with the most distinguished pharmacologist of the time described in a standard medical textbook the effects of excessive coffee consumption: "the sufferer is tremulous and loses his self-command, he is subject to fits of agitation and depression. He has a haggard appearance.... As with other such agents. a renewed dose of the poison gives temporary relief. but at the cost of future misery". Tea was no better. "Tea has appeared to us to be especially efficient in producing nightmares with ... hallucinations which may be alarming in their intensity.... Another peculiar quality of tea is to produce a strange and extreme degree of physical depression. An hour or two after breakfast at which tea has been taken . . . a grievous sinking ... may seize upon a sufferer, so that to speak is an effort.... The speech may become weak and vague.... By miseries such as these, the best years of life may be spoilt".

66. With such earlier judgments in mind we do not wish to make any formal or absolute statement on a comparison of cannabis and the other drugs in common social use. All we would wish to say is that the gradations of danger between consuming tea and coffee at one end of the scale and injecting heroin intravenously at the other, may not be permanently those which we now ascribe to particular drugs.

 

12.  The Act intended to avoid the historical and cultural subjectivity the Wotton Report warned about since this would jeopardize the legitimate aim of regulating drugs in proportion to their objective risks. The Act achieves this by ensuring that regulations as well as the classification system, which links only penalties to risk, would be evidence-based and under continuous independent review so that regulations could evolve with emerging evidence. This aim, to evolve with new evidence, was made clear by the Government when the Act was introduced. The Police Foundation’s report of 2000, Drugs and the law - Independent Inquiry into the Misuse of Drugs Act, p.39, para 1:

In introducing the legislation in 1970, the Home Secretary, Mr. Callaghan, said:

The object here is to make, so far as possible, a more sensible differentiation between drugs. It will divide them according to their accepted dangers and harmfulness in the light of current knowledge and it will provide for changes to be made in the classification in the light of new scientific knowledge.

 

13.  The Parliamentary Committee’s 2006 report explained that the initial classification system adopted by the Act in 1971 was based upon United Nations’ drug Conventions:

6. The United Nations’ Single Convention on Narcotic Drugs 1961 and its attempts to establish a Convention on Psychotropic Substances (eventually ratified in 1971) formed an important backdrop to the UK’s efforts to rationalise its legislation in this area. James Callaghan, the then Home Secretary, told Parliament in 1970 that in developing the ABC classification system the Government had used the UN Single Convention and guidance provided by the World Health Organisation to place drugs “in the order in which we think they should be classified of harmfulness and danger”. Even at that early stage, the Government said that drugs would be classified “according to the accepted dangers and harmfulness in light of current knowledge”, with provision “for changes to be made in […] the light of scientific knowledge”.

7. The Misuse of Drugs Act did not specify why particular drugs were placed in Class A, B or C but did create an Advisory Council on the Misuse of Drugs (ACMD) to keep the classification of drugs under review. … Various drugs which were not originally regulated under the Act have also become classified.

 

The method applied by the Act to achieve the primary legitimate aim

 

14.  UN drug Conventions not only influenced the initial ranking of harmful drugs in the Act’s classification system but also strongly influenced the initial regulatory method applied by the Act to achieve the primary legitimate aim of protecting the public from harmful drug consumption.

 

15.  The classification system itself does not link drugs ranked by harmfulness with proportionate regulations that restrict individual rights, unlike the 3-tier classification system of the Medicines Act 1968. The classification system instead links drug rankings solely to penalties (see Secondary legitimate aim above).

 

16.  The regulatory method used by the Act, as used by the Conventions, is not specified by the classification system but instead consists of the prohibition of all property rights – import/export (Section 3), supply and production (Section 4) and possession (Section 5) – in relation to non-medical use. Section 7 of the Act attempts to distinguish responsible and irresponsible use by permitting applications for production, supply and import/export licenses but only if two conditions are met: (a) that the intent is for medical and scientific purposes; and (b) that applicants have professional status in relevant areas. However neither of these factors is relevant to the outcome of drug use, whether or not use results in “harmful effects sufficient to constitute a social problem”. Prescribed drugs also give rise to “harmful effects sufficient to constitute a social problem”. The legitimate aim of the Act is based on outcome, not on intent or professional status.
The regulatory method of prohibition applies to all Classes of drugs equally – a blanket prohibition on the exercise of property rights for non-medical use. No distinction is made between reasonably safe, responsible use and unreasonably harmful, irresponsible use so regulations are not proportionate to the risks associated with each Class.

 

17.  The method of achieving the legitimate aim, unlike the legitimate aim itself, is under continuous review by both the ACMD (Section 1) and Secretary of State for the Home Department (Section 2(2), Section 7, 10, 22, and Section 31), subject to acceptance by Parliament. This is required to ensure the legitimate aim of evolving with new evidence of drug risks and the effectiveness of regulatory options.

 

18.  However the method applied by the Act – prohibition of property rights for non-medical use of all controlled drugs, irrespective of their risks, their Class - has not been revised since the Act came into force.

 

19.  The Act does not mention UN drug Conventions or other international treaties as relevant factors in drug regulation and classification decisions. There is no suggestion that the continuous review of drugs risks or of alternative regulatory methods is in any way fettered by UN drug Conventions. Compliance with UN drug Conventions cannot be a legitimate aim of the Act, though both ACMD and Government may take them into account but they would have to balance them against the international human rights treaties that require equal treatment of citizens.

Parliament clearly intended the Act to be evidence-based rather than fettered to UN drug Conventions. Lord Templeman in the case of JH Rayner (Mincing Lane) Ltd v DTT [1990] 2 AC 418 (HL) at p476, explained the legal relationship between the 3 pillars of government – the Government/Executive, Parliament and the Judiciary - in respect of international treaties:

The Government may negotiate, conclude, construe, observe, breach, repudiate or terminate a Treaty. Parliament may alter the laws of the United Kingdom. The courts must enforce those laws; judges have no power to grant specific performance of a Treaty or to award damages against a sovereign state for breach of a Treaty or to invent laws or misconstrue legislation in order to enforce a Treaty.

A treaty is a contract between the governments of two or more sovereign states. International law regulates the relations between sovereign states and determines the validity, the interpretation and the enforcement of treaties. A treaty to which Her Majesty’s Government is a party does not alter the laws of the United Kingdom. A treaty may be incorporated into and alter the laws of the United Kingdom by means of legislation. Except to the extent that a treaty becomes incorporated into the laws of the United Kingdom by statute, the courts of the United Kingdom have no power to enforce treaty rights and obligations at the behest of a sovereign government or at the behest of a private individual.

Government has ratified UN drug Conventions just as they ratified the European Convention on Human Rights in the early 1950s. But ECHR had no effect on UK courts until Parliament passed the Human Rights Act 1998 to specifically incorporate the Convention. Parliament chose NOT to incorporate UN drug Conventions in the Misuse of Drugs Act 1971.

 

20.  The Act gives no indication that any drugs with ‘harmful effects sufficient to constitute a social problem’ should be excluded from the Act. The Act gives no indication that factors other than harmfulness should be relevant to the regulation and classification of drugs under the Act, factors such as tradition or historical precedents and majority use or cultural preference.