The Misuse of Drugs Act 1971

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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 statutory duty is restricted to advising on harmful drug use; they have no legal power to advise restrictions on reasonably safe drug use.

  • 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]