Legitimate
aim of the Misuse of Drugs Act [MDA]:
The
legitimate aim, or public-interest aim, of the
Misuse of Drugs Act is to protect the public from
the harmful use - the 'misuse' - of drugs. So
it's aim is NOT to protect against the use
of only some drugs - it is not
called The Use of Some Drugs Act. The public
interest can only be served by protecting the
public from harmful use, not from reasonably safe
or beneficial use. The Act acknowledges the
distinction between harmful and beneficial use in
that it is divided into two sections, the first
dealing with non-medical use, the second with
medical use, use that has been proven beneficial.
However the concept of self-medication and
over-the-counter supply are not considered.
Instead the MDA is black-and-white: medical use
is proven beneficial, non-medical use is assumed
to be unreasonably harmful. There is no middle
ground of 'reasonably safe use'.
Advisory
Council on the Misuse of Drugs [ACMD]:
The
MDA begins, in Section 1, by establishing the
ACMD. This indicates the significance Parliament
gave to evidence and advice from independent
experts underlying the implementation of the MDA.
If citizens are to be penalised, even imprisoned,
for harmful drug use, Parliament wanted to be
sure this would be based on the best evidence.
The ACMD must provide two types of advice, one
concerning drug risks and the other concerning
the type of regulations they recommend. Their
risk advice applies to all drugs "capable of
having harmful effects sufficient to constitute a
social problem". Obviously alcohol and
tobacco are such drugs, as all children are
taught at school. Drugs that are not capable of
such effects do not fall within the ACMD's
statutory duty and so do not fall within the
scope of the MDA. The ACMD's regulatory advice is
described as "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". Note that the MDA specifically says
the ACMD may recommend changes to the existing
law. ACMD advice is in no way restricted by the
current law. They can recommend any regulations
between the extremes of blanket prohibition and a
free market. This of course includes the middle
ground of more balanced forms of regulation -
licensing like alcohol and tobacco or medical
drugs, or even more restrictive forms of
licensing.
ACMD
and Government: drug policy dependency
Once
the Government's Home Office has received the
ACMD advice they may ignore it entirely but this
rarely happens. ACMD advice often appears
remarkably similar to Government policy. Part of
the reason for this was explained to us by the
ACMD secretariat: "Albeit independent, the
ACMD as an advisory body has to be aware of the
Government's position, which has not given any
intention to consider the control of alcohol,
tobacco and caffeine". So ACMD advice has
depended on Government policy rather than
vice-versa as the law intends. In particular,
ACMD's unequal treatment advice seems to have
unlawfully depended on the Government's policy of
unequal treatment. Likewise Government's policy
of unequal treatment seems to unlawfully depend
on the UN drug Conventions that the Government
has signed rather than lawfully depending on the
text of Parliament's Misuse of Drugs Act. The
Government uses their legal power, given to them
by Parliament, for political purposes -
internally, within the nation, to gain favour
with the majority of voters at the expense of
minorities and externally, internationally, to
gain favour with powerful nations they are
politically allied to (the US particularly).
Result:
criminalisation of some citizens for an acitivity
that is "not harmless"
Consider
the ACMD's 2002 cannabis classification decision.
The ACMD's report declared that "the high
use of cannabis is not associated with major
health problems for the individual or
society". Wow! So presumably it shouldn't be
controlled under the MDA since what they are
saying is that it does not have "harmful
effects sufficient to constitute a social
problem", the criteria laid down by law. But
no, ACMD recommended continued prohibition
because "cannabis is not a harmless
substance and its use unquestionably poses risks
both to individual health and to society".
Of course cannabis is not a harmless substance -
harmless substances don't exist - but that is
entirely irrelevant simply because "not
harmless" is an arbitrary description that
applies to everything. Meanwhile the same report
pointed out that alcohol and tobacco are more
harmful but went on to justify the
criminalisation of millions of citizens who
consume a safer alternative by referring to the
principle of proportionality, that the severity
of regulations should be in proportion with the
severity of the risks. The banning of safer
alternatives to legally available, lethal
addictive drugs cannot be a legitimate aim of the
MDA.
2006:
ACMD break their dependency on Government policy
The
ACMD now seem to be aware of this problem and
have become significantly more independent since
2006 when they stated: "At present, the
legal framework for the regulation and control of
drugs clearly distinguishes between drugs such as
tobacco and alcohol and various other drugs which
can be bought and sold legally (subject to
various regulations), drugs which are covered by
the Misuse of Drugs Act (1971) and drugs which
are classed as medicines, some of which are also
covered by the Act. The insights summarised in
this chapter indicate that these distinctions are
based on historical and cultural factors and lack
a consistent and objective basis". Like
sexism and racism, "distinctions are based
on historical and cultural factors and lack a
consistent and objective basis". ACMD went
on to recommend "a fully integrated approach
should be taken to the development of policies
designed to prevent the hazardous use of tobacco,
alcohol and other drugs" [Recommendation
11]. Revolutionary stuff! How would Government
reply to this?
Ten months later, in July 2007 Government began a
consultation on a new 10 year drugs strategy for
2008 onwards. The consultation documents stated
that this would be "the largest single
consultation exercise on the future of tackling
drugs this country has seen". Would this
drug strategy finally include the two drugs that
cause most harm, as the ACMD recommended? No
chance: still the Government had not replied to
the ACMD's Pathways to Problems report
of September 2006. This denied consultees their
right to be informed of the statutory advisory
committee's advice that drug discrimination was
unjustified and their recommendation to end it.
2006:
Government admits dependency on public opinion and
international law
In
July 2006 the Parliamentary Committee on Science
and Technology's report Drug Classification:
making a hash of it? stated "One of the
most striking findings highlighted in the paper
drafted by Professor Nutt [Chairman of the ACMD
Technical Committee] 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)". The Parliamentary Committee
concluded "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 Government's reply, six weeks later, admitted
that their drugs policy - and their
implementation of the MDA - did not depend on
scientific evidence but on public opinion and
international law. "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)".
"The Government is not free to legislate
entirely as it pleases. It must do so within the
parameters set by the Conventions".
Admitting dependency is a significant start to
breaking a habit, but only a start. Both
Government statements are in fact admissions that
they are breaking the law, the MDA. The MDA gives
no indication that consumers, traders and
producers of equally harmful drugs should be
treated unequally due to "historical and
cultural precedents" or the
"acceptability to the vast majority" of
voters. It is these factors that undelie all
institutionalised discrimination, like sexism and
racism. And UN drug Conventions do not apply to
the UK simply because Government ratified them.
Parliament must incorporate international
treaties into domestic law before they have any
effect on UK legislation and Parliament chose not
to incorporate the drug Conventions in the MDA
and it is Parliament who makes the law, not
Government.
For
more detailed analysis of drugs policy in terms of
the law and legal decison making, especially the
implications of the Human Rights Act, see www.drugdiscrimination.org
Conclusion:
The
MDA gives no indication that consumers,
traders and producers of equally harmful
non-medical drugs should be treated
unequally.
The
MDA does not exclude any harmful non-medical
drugs from its scope. No indication is given
that alcohol and tobacco should be excluded,
harmful non-medical drugs used by both
politicians implementing the act and the
majority of voters (on whose votes
politicians' jobs and political power
depends).
Drug
possession, supply and production are not
forms of drug misuse - misuse involves
consumption. Section 37: Interpretation says
"(2) References in this Act to misusing
a drug are references to misusing it by
taking it".
The
ACMD's regulatory advice is not restricted to
varying degrees of prohibition simply because
that is the current method of regulation
under the MDA. They could advise that
reasonably safe use is tolerated, use harmful
to the consumer is educated against and use
harmful to others is legislated against.
ACMD
members are medical scientists (Schedule 1,
Para 1). They do not have expertise in risk
assessment and evaluation of regulatory
options. Under the Code of Practise for
Scientific Committees they should seek this
expertise elsewhere, but they do not appear
to do so.
The
MDA does not incorporate UN drug Conventions
into UK law so those Conventions have no
effect in the UK.
The
ACMD have a statutory duty to advise Government
about:
risk
assessments of harmful drug use
regulatory
options to prevent harmful drug use, ways to
restrict availability of harmful drugs and
regulate their supply
advice,
treatment and after-care required by those
affected by harmful drug use
ways
to enhance cooperation to tackle harmful drug
use
education
of the public, especially the young, about
harmful drug use
research
required to help prevent harmful drug use
Text
of the Misuse of Drugs Act 1971 - Sections 1, 2, 37
& Schedule 1, Para 1:
An Act to make
new provision with respect to dangerous or
otherwise harmful drugs and related matters, and
for purposes connected therewith. [27th May 1971]
BE IT ENACTED by
the Queen's most Excellent Majesty, by and with
the advice and consent of the Lords Spiritual and
Temporal, and Commons, in this present Parliament
assembled, and by the authority of the same, as
follows:-
The
Advisory Council on the Misuse of Drugs
1.-(1) There
shall be constituted in accordance with Schedule
1 to this Act as Advisory Council on the Misuse
of Drugs (in this Act referred to as "the
Advisory Council"); and the supplementary
provisions contained in that Schedule shall have
effect in relation to the Council.
(2) 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, and to give to any one or more of the
Ministers, where either the Council consider it
expedient to do so or they are consulted by the
Minister or Ministers in question, 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;
(b) for enabling persons affected by the
misuse of such drugs to obtain proper advice,
and for securing the provision of proper
facilities and services for the treatment
rehabilitation and after-care of such
persons;
(c) for promoting co-operation between the
various professional and community services
which in the opinion of the Council have a
part to play in dealing with social problems
connected with the misuse of such drugs;
(d) for educating the public (and in
particular the young) in the dangers of
misusing such drugs, and for giving publicity
to those dangers; and
(e) for promoting research into, or otherwise
obtaining information about, any matter which
in the opinion of the Council is of relevance
for the purpose of preventing the misuse of
such drugs or dealing with any social problem
connected with their misuse.
(3) It shall
also be the duty of the Advisory Council to
consider any matter relating to drug dependence
or the misuse of drugs which may be referred to
them by any one or more of the Ministers and to
advise the Minister or Ministers in question
thereon, and in particular to consider and advise
the Secretary of State with respect to any
communication referred by him to the Council,
being a communication relating to the control of
any dangerous or otherwise harmful drug made to
Her Majesty's Government in the United Kingdom by
any organisation or authority established by or
under any treaty, Convention or other agreement
or arrangement to which that Government is for
the time being a party.
(4) In this
section "the Ministers" means the
Secretary of State for the Home Department, the
Secretaries of State respectively concerned with
health in England, Wales and Scotland, the
Secretaries of State respectively concerned with
education in England, Wales and Scotland, the
Minister of Home Affairs for Northern Ireland,
the Minister of Health and Social Services for
Northern Ireland and the Minister of Education
for Northern Ireland.
Controlled
drugs and their classification
2.-(1)
In this Act-
(a) the
expression "controlled drug" means any
substance or product for the time being specified
in Part I, II, or III of Schedule 2 to this Act;
and
(b) the
expressions "Class A drug", "Class
B drug" and "Class C drug" mean
any of the substances and products for the time
being specified respectively in Part I, Part II
and Part III of that Schedule;
and the provisions of Part IV of that Schedule
shall have effect with respect to the meanings of
expressions used in that Schedule.
(2) Her Majesty
may by Order in Council make such amendments in
Schedule 2 to this Act as may be requisite for
the purpose of adding any substance or product
to, or removing any substance or product from,
any of Parts I to III of that Schedule, including
amendments for securing that no substance or
product is for the time being specified in a
particular one of those Parts or for inserting
any substance or product into any of those Parts
in which no substance or product is for the time
being specified.
(3) An Order in
Council under this section may amend Part IV of
Schedule 2 to this Act, and may do so whether or
not it amends any other Part of that Schedule.
(4) An Order in
Council under this section may be varied or
revoked by a subsequent Order in Council
thereunder.
(5) No
recommendation shall be made to Her Majesty in
Council to make an Order under this section
unless a draft of the Order has been laid before
Parliament and approved by a resolution of each
House of Parliament; and the Secretary of State
shall not lay a draft of such an Order before
Parliament except after consultation with or on
the recommendation of the Advisory Council.
Section
37: Interpretation
(2) References
in this Act to misusing a drug are references to
misusing it by taking it.
Schedule
1, Para 1:
(1) The members
of the Advisory Council, of whom there should be
not less than twenty, shall ... (b) have wide and
recent experience of social problems connected
with the misuse of drugs:
(2) [members should be active in areas of]:
(a) the practise of medicine;
(b) the practise of dentistry;
(c) the practise of vetinary medicine;
(d) the practise of pharmacy;
(e) the pharmaceutical industry;
(f) chemistry.
Full text of the Misuse
of Drugs Act 1971 [UK Statute Law Database,
Ministry of Justice]