Apparently the Misuse of Drugs Act can’t apply to drugs which have widespread public acceptance according to the Home Office.

As reported a couple of weeks back the FOI request submitted by the Drug Equality Alliance (DEA) was to be released but with major “redactions” – with large chunks censored. We now have the document which you can read here (pdf).

The first thing to note is there isn’t actually any thick black pen blanking out the words, what they want to hide is simply not there with just the word “redacted” instead. The next thing to note as well is there aren’t nearly 40 pages included in the PDF, the missing pages are two dedicated to the code of practice for the consultation (which you can read here and here) and an annex which looks at regimes in other countries in the EU, USA and New Zealand which we don’t have. The bulk of the remaining 27 pages are covered in unredacted text which was not what we were expecting to see, but of course most of this unredacted text is intended as little more than background information.

It is true that the really interesting sections have been censored as we reported before.

In addition, a new tag line has been added to the front page of the document:

[Note (May 2010): This a draft of a consultation paper which was not, in fact, approved for publication in 2006. The draft, with some passages redacted, is being released under Freedom of Information Legislation.]

This is interesting because the document was not previously marked as “draft”, which would  indicate that it in fact was not a draft version as is now being claimed. This would seem to be an indication that the Home Office is covering its tracks a bit perhaps?

So please read the redacted document and make of it what you will. From my personal point of view I find it odd that a substance such as cannabis, which is after all widely accepted socially can be made subject to a prohibition law whereas a far more damaging substance such as alcohol or tobacco can’t be simply because they were considered to be socially accepted and cannabis wasn’t when the Act came into being. No indication is given as to how this distinction was arrived at, the criteria used to make this the assessment, who’s responsibility it is to make such a  distinction or how one appeals against it.

In fact not only is there  no criteria for making such an assessment but there would seem to be no provision within the Misuse of Drugs Act 1971 for such an exception to be made, in attempting to justify the unjustifiable this document actually digs a fairly deep hole for itself even in its redacted state.

However, let’s assume for the sake of argument that is is reasonable that a substance can be excluded from the Misuse of Drugs Act 1971 simply because of the degree of social acceptance. In that case obviously a very strong case can be made for doing the same with cannabis, because it is very widely accepted across huge swathes of the culture of the United Kingdom. That may not have been the case in 1971, but it is now.

Laws cannot be decided by some arbitrary judgement of  what some unaccountable person somewhere regarded as “socially accepted” 40 years ago. If there is any validity in doing this then it should be quantified somewhere and a criteria for “social acceptance” laid down and established. This, of course, would mean that if the use of a substance became widespread overt time, it should then be removed from the Act which has clearly failed to control that substance into a regime of genuine control and regulation. For good or bad, this has clearly happened with cannabis.

Therefore the situation at present would seem to be untenable: Either as the DEA is arguing, the distinction between Alcohol, tobacco and caffeine and other so-called “controlled” drugs is arbitrary and therefore unjust, or there must be some procedure and quantifiable process to asses the degree of social acceptance of a drug which would allow drugs to move between the two legal states as social norms change over time, as they always do.

The original FOI request was made in support of the appeal being made by Casey Hardison – his website is here – who has now lodged an appeal with the Information Commission to see the redacted parts of this release. The appeal was posted by Darryl Bickler of the DEA as a comment to the original blog but few people will have seen it, so I’ll repost it here. Darryl wrote:

This is Hardison’s submission to the 1st Tier Tribunal (minus footnotes and this is from an OCR scan so please excuse any typos)


Information Commissioner Respondent

The Home Office Appellant
The Public Interest

1. Mr Casey William Hardison has requested joinder in this matter to represent thepublic interest in the full disclosure of the May 2006 Home Office Crime and Drug Strategy Directorate document ‘Review of the UK’s Drugs Classification System — a Public Consultation’ (the Document”).

2. Mr Hardison has seen the Document, however, information withheld under s35(1)(a) of the Freedom of Information Act 2000, re the formulation or development of government policy, is still redacted.

3. The Document is a proposal for a review of the drug classification system under the Misuse of Drugs Act 1971 (“the Act”). It coalesced out of a 19 January 2006 pledge by the then Home Secretary, the Rt Hon Charles Clarke MP:

“The more I have considered these matters, the more concerned I have become about the limitations of our current system. Decisions on classification often address different or conflicting purposes and too often send strong but confused signals to users and others about the harms and consequences of using a particular drug and there is often disagreement over the meaning of different classifications. […1 I will in the next few weeks publish a consultation paper with suggestions for a review of the drug
classification system, on the basis of which I will make proposals in due course”. (Hansard, HC Deb, 19 Jan 2006, Col 983)

4. The Document authors recognise that the classification of controlled drugs under the Act appears arbitrary and capricious. In particular paragraph 6.8 states:

“There has not, in the UK, been any attempt to impose controls comparable to illicit drugs where it would be an offence to possess and supply alcohol and tobacco. The social acceptability of~, for example, alcohol would make such controls unacceptable to the majority who use alcohol responsibly and therefore impractical. But alcohol and tobacco account for more health problems and deaths than illicit drugs. To many young people this presents problems in understanding the rationale behind controlling drugs such as cannabis and ecstasy when their misuse contributes less overall harm to society than the widely available drugs such as alcohol and tobacco”.

5. In the public interest of these young people, full disclosure of the Document is vital. FTI’ 110 v ICO PT 1.01 Page 1 of 9

6. Examining the purpose and objects of the Misuse of Drugs Act 1971 c38, reveals the true scale of the public interest at stake in disclosing the Document.

A. The Act’s Purpose — to Protect Public Health & Welfare

7. Having recognised that self-administration of “dangerous or otherwise harmful drugs” may result in a variable likelihood of risks and benefits to public welfare and individual autonomy and that these must be consciously balanced, Parliamentarians embodied four principles of law in the Act:

1) A determination, read from the Act’s preamble, sl (2) and the offences stated in the Act, to employ education, health and police power measures to prevent, minimise or eliminate the “harmful effects sufficient to constitute a social problem” that may arise via any self-administration of “dangerous or otherwise harmful drugs”.

2) A determination, read from ss1, 2(5), 7(7) & 31(3) of the Act, to employ an independent advisory body to help the Secretary of State (“SSHD”) exercise the Act’s discretionary powers rationally and objectively, particularly when: (1) administering the classification system, and (2) when creating and maintaining a regulatory structure and its interstitial administrative rules.

3) A determination, read from sl(3), to employ an independent advisory body to consider any matter relating to drug dependence or the misuse of drugs that may
be referred to them by any Minister and to advise them as required or requested.

4) A determination, read from ssl (2)(a)-(e), to enable persons affected by drugs misuse to obtain advice and secure health services; to promote stakeholder co-
operation in dealing with the social problems connected with drugs misuse; to educate the public in the dangers of misusing drugs, and to give publicity to those dangers; and to promote research into any matter which is relevant to prevent drugs misuse or deal with any connected social problem.

8. The first principle of law is neutral and generally applicable, allowing the Act to work towards specific measurable outcomes, irrespective of the drug, the agent’s status, class, or intent, or the circumstances in which the drug-related activities occur. It allows an inquiry into whether the Act is in fact accomplishing its purpose.

9. The second principle of law facilitates Due Process by seeking to ensure that the Act’s measures, including the use of police power, are proportionate to the inherent and possible risks a drug presents when used. This facilitates an evolutive and dynamic response to drug harms suitably targeted to achieve the Act’s purpose.

10. Principles three and four facilitate a coherent social conversation for minimising drug harms through the intelligent use of education, health and ministerial services.

11. These four principles of law elucidate that the Act’s purpose is to protect blood and treasure, above all our young. This is the public interest that justifies regulation.

B. The Object of Regulation — Human Activities re Dangerous or Otherwise Harmful Drugs

12. The Act concerns itself with public health and safety; however, the Act does not concern itself with absolute safety. Rather, the Act seeks to prevent, minimise or eliminate the “harmful effects sufficient to constitute a social problem” that may arise via self-administration of “dangerous or otherwise harmful drugs”.

13. The Act targets these “harmful effects” indirectly through “restrictions” ss3-6, “prohibitions” ss8-9 and/or “regulations” ss7, 10 & 22, on the exercise of
enumerated activities re controlled drugs, vi~ import/export, production, supply, possession, but p~ use, whilst generating a harm reduction conversation at all levels of society via education, research ~iici the provision of specific health services.

14. Accordingly, the Act regulates the person it does not regulate drugs.

C. An Essential bit of Housekeeping

15. Since the Act regulates the person, and not drugs, we can immediately drop the false distinction the Home Office seeks to make throughout the Document, that the Act makes some drugs or substances “illegal” whilst others remain “legal”.

16. “Legal” or “illegal” drugs or substances do not exist in fact or law. “Controlled drug” is the proper phrase; I request this Tribunal use it. Controlled drugs are created via s2 of the Act and the process is initiated by the SSHD under s2(5).

17. Consider this sentence from paragraph 4.15 of the Document:

“The drugs classification system is not a suitable mechanism for regulating legal substances such as alcohol and tobacco”.

18. This cannot be correct. The Home Office accept that they “consider alcohol and tobacco to be implicit in the [Advisory Council’s] terms of reference” in sl (2) of the Act “as these are substances that can be misused”.2 And Parliament has always thought the Act a suitable mechanism for regulating the production and commerce
of alcohol and tobacco.3

19. Logic follows that the sentence “the classification system is not a suitable mechanism for regulating … substances such as alcohol and tobacco”, is wrong in law. Yet, this sentence was repeated in the Command Paper, Cm 6941, which quashed the decision to consult on a review of the drug classification system.

20. More, the SSHD’s and the Home Office’s use of the phrase “legal substances” illustrates their collective failure to understand the law regulating the SSHD’s
decision making powers and, re alcohol and tobacco, their collective failure to give effect to it. ‘What gives rise to this apparent failure?

D. An Historic Artificial Divide

21. In 1994, in the Opening Statement to the 37th Session of the Commission on Narcotic Drugs, the Executive Director of the UN International Drug Control Program said:

“[It is] increasingly difficult to justify the continued distinction among substances solely according to their legal status and social acceptability. Insofar as nicotine-addiction, alcoholism, and the abuse of solvents and inhalants may represent greater threats to health than the abuse of some substances presently under international control, pragmatism would lead to the conclusion that pursuing disparate strategies to minimise their impact is ultimately artificial, irrational and uneconomical”.

22. In 1997, under the heading “The Regulation-Legalization Debate”, the United Nations World Drug Report articulated the contradiction inherent in “cultural and historical justifications” re dangerous drugs legislation:

“The discussion of regulation has inevitably brought alcohol and tobacco into the heart of the debate and highlighted the apparent inconsistency whereby use of some dependence creating drugs is legal and of others is illegal. The cultural and historical justifications offered for this separation may not be credible to the principal targets of today’s anti-drug messages — the young”. (Chapter 5, page 198, emphasis added)

23. On 22 May 2002, in concluding a wide-ranging inquiry into Government’s drug policy, the Third Report from the House of Commons Home Affairs Committee
Session 2001-2002 HC-318 The Government’s Drug Policy: is it working? declared:

“Legal drugs, such as tobacco and alcohol, are responsible for far greater damage both to individual health ~ to the social fabric in general than illegal ones”.

The 2002 Home Affairs Committee report HC-318 continued:

“Substance misuse is a continuum perhaps artificially divided into legal and illegal activity”. (Introduction, paragraphs 8 & 9, emphasis added)

24. In 2003, the Prime Minister’s Strategy Unit Drugs Project Phase 1 Report declared that “the cost of crime linked to alcohol is estimated to be ~£12bn per year”.

25. On 19 January 2006, the Secretary of State for the Home Department promised a
public consultation suggesting a review of the Act’s drug classification system.

26. In May 2006 the unreleased Home Office document ‘Review of the UK’s Drugs Classification System — a Public Consultation’ stated that:

“The Department of Health calculate that the cost of alcohol-related harms in England alone is up to £20bn per annum”.

27. On 31 July 2006, after investigating the production and use of scientific advice and evidence in making drug control and classification decisions under the Act,
the Fifth Report of the House of Commons Science and Technology Committee Session 2005-06 HC 1031, Drug class~7ication: making a hash of it?, damningly said:

‘With respect to the ABC classification system, 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 found no convincing evidence for the deterrent effect, which is widely seen as underpinning the Government’s classification policy. […We have concluded that the current classification system is not fit for purpose and should be replaced with a more scientifically based scale of harm. […] In light of the serious failings of the ABC classification system that we have identified, we urge the Home Secretary to honour his predecessor’s commitment to review the current system”. (Summary)

28. On 14 September 2006, the Advisory Council on the Misuse of Drugs (“ACMD”) published Pathways to Problems: hazardous use of tobacco, alcohol and other drugs by young people in the UK and its implications for policy in which the ACMD declared unequivocally that the artificial divide in drugs policy lacks rationality:

‘We believe that policy-makers and the public need to be better informed of the essential similarity in the way in which psychoactive drugs work: […] 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 here indicate that these distinctions are based on historical and cultural factors and lack
a consistent and objective basis”. (Paragraph 1.13, p22)

Earlier the ACMD had admitted “neglect[ing]” their duty under the Act by discriminating between “harmful psychoactive drugs” based on “legal status”:

“The scientific evidence is now clear that nicotine and alcohol have pharmacological actions similar to other psychoactive drugs. Both cause serious health and social problems and there is growing evidence of very strong links between the use of tobacco, alcohol ~nci other drugs. For the ACMD to neglect two of the most harmful psychoactive drugs simply because they have a different legal status no longer seems appropriate”. (Introduction, p14-)

The ACMD’s first recommendation in Pathways to Problems reads:

“As their actions are similar and their harmfulness to individuals and society is no less than that of other psychoactive drugs, tobacco and alcohol should be explicitly included within the terms of reference of the Advisory Council on the Misuse of Drugs”. (Key messages, p6)

29. A month later, on 13 October 2006, in Cm 6941, The Government Reply to the Fifth Report from the House of Commons Science and Technology Committee Session 2005-06 HC 1031 Drug classification: making a hash of it?, after quashing the decision to review the classification system, the SSHD stitched together paragraphs 4.15 and 6.8 of the Document and revealed a “separate but equal” ~ policy of alcohol and tobacco regulation based on the “historical and cultural precedents” of “the vast majority”:

“Government [believes] the classification system under the Misuse of Drugs Act is not a suitable mechanism for regulating legal substances such as alcohol and tobacco. 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 […1. Legal substances are therefore regulated through other means. [.. .J However, the Government acknowledges that alcohol and tobacco account for more health problems and deaths than illicit drugs”. (p24)

30. On 24 March 2007, a paper by Professor David Nutt, the former ACMD Chairman, and Professor Colin Blakemore, the former Chief Executive of the Medical Research Council, appeared in The Lancet entitled Development of a rationalscale to assess the harm of drugs of potential misuse. This paper describes the first scientific ranking of the relative harmfulness of the most commonly used drugs. It concludes:

“The current classification system has evolved in an unsystematic way from somewhat arbitrary foundations with seemingly little scientific basis. […] Our findings raise questions about the validity of the current Misuse of Drugs Act classification, despite the fact that it is nominally based on an assessment of risk to users and society. […] Our results also emphasise that the exclusion of alcohol and tobacco from the Misuse of Drugs Act is, from a scientific perspective, arbitrary. We saw no clear distinction between socially acceptable and illicit substances. The fact that the two most widely used legal drugs lie in the upper half of the ranking of harm is surely important information that should be taken into account in public debate on illegal drug use. Discussions based on a formal assessment of harm rather than on prejudice and assumptions might help society to engage in a more rational debate about the relative risks and harms of drugs”. (The Lancet 369: 1047 -1053)

31. The formal assessment of harm described in the Lancet paper above appears in the Document at page 13 and also as a supplemental memorandum from the ACMD in Appendix 14 to the July 2006 Drug classification: making a hash of it?, HC 1031.

32. On 26 March 2007, Mr Hardison requested under the Freedom of Information Act 2000 the disclosure of the alleged “consultation document which is in draft form in the department”. The public interest calls for that “more rational debate”.

B. How Parliament intended the Classification System to work

33. The Act’s classification mechanism in s2 states, with a single added emphasis:

“2. Controlled drugs and their classification for purposes of this Act.

(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 TV of Schedule 2 to this Act, and may do so whether or not it amends any other Part of this Schedule.

(4) An Order in Council under this section may be varied or revoked by a subsequent Order in Council there under.

(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.”

34. As the Act neither states an explicit policy nor fixes ~ determining criteria to guide when the SSHD’s shall instigate the control process under s2(5), the s2(5) discretion
is governed by the principle laid down by the House of Lords in Padfield v Minister of Agriculture, Fisheries and Food [1968] AC 997 at 1030:

“Parliament must have conferred the discretion with the intention that it should be used to promote the policy and objects of the Act, the policy and objects of the Act must be determined by construing the Act as a whole and construction is always a matter of law for the court”.

35. Section 1(2) of the Act, the ACMD’s remit, implies that a drug or substance is liable to control under the Act if: (1) it is “being or appear[s] … likely to be misused”;  and (2) “[thisl misuse is having or appears … capable of having harmful effects sufficient to constitute a social problem”.

36. The above two criteria appear to be the relevant and sufficient facts that must be made out in order to justify the control of a drug or substance, and thus the persons concerned with them, in the public interest.

37. It is this simple: if a drug or substance is being self-administered and that self- administration results in any spilt blood or treasure or weighs on the public purse
in any way, it is “sufficient to constitute a social problem” and it should be
included in the Act.

F. Looking Forward — the Public Interest

38. It is unfortunate that the SSHD and the Home Office appears n~ to have understood the exceptionally beautifully crafted Act and its flexible regulatory possibilities: Cf ss7, 22, &31(1)(a).

39. As a matter of law and fact, the Act and its classification system is a suitable mechanism for regulating a lawful commerce and production in any dangerous or
otherwise harmful drug, not the least of which are alcohol and tobacco.

40. And it is the “historical and cultural” failure to include alcohol and tobacco within the scale of harm — within the classification system — that so skews the
public’s perception of the drugs problem in this country and the mechanisms to manage it. In the words of the Document writers at paragraph 6.3:

“To many young people the regulation of tobacco and alcohol and the prohibition of drugs presents a dichotomy in terms of harm. They question why substances of considerable harm such as cigarettes and alcohol are able to be consumed relatively easily when possessing a drug like cannabis can lead to prosecution”. (Emphasis added)

41. Often a young person’s first contact with the process of law is in response to drugs,
be it alcohol, tobacco or any other. If we are to restore their faith in the law, we
must rationalise our drug policy. The consultation document was a bold attempt to
do just that. It was in the public interest. It still is. We owe it to our young.

42. Mr Hardison believes that the Document’s redacted material intends to discuss the possibility of creating determining criteria specifying when and how the SSHD shall
so exercise the Act’s discretionary powers, in particular s2(5).

43. In the International Comparisons section, the Document discusses at length, both s81 1 of the US Controlled Substances Act 1970, 21 USC 811 and, s4B of the New Zealand Misuse of Drugs Act 1975 in which determining criteria are specified for drug control, classification and regulation.

44. Unfortunately, the section of the Document entitled Alternative Systems for Consideration has been redacted so the public do n~ know if there were proposals in the document to move towards a rational and objective mechanism of drug classification and control.

45. Further, the Ministerial Foreword and the Purpose of the consultation is also redacted. We the public are n~ to know why the Secretary of State at the time, the Rt
Hon Charles Clarke, proposed the consultation. One can assume that he did so in the public interest. The public have only his statement to the House on the matter:

“The more that I have considered these matters the more concerned I have become about the limitations of our current system. Decisions on classification often address different or conflicting purposes and too often send strong but confused signals to users and others about the harms and consequences of using a particular drug and there is often disagreement over the meaning of different classifications. […J For these reasons I will in the next few weeks publish a consultation paper with suggestions for a review of the drug classification system, on the basis of which I will in due course make proposals”. (Hansard, HC Deb, 19 Jan 2006, Col 983)

46. He wanted to protect our blood and treasure.

G. Prayer

47. The Home Office has stated that: “disclosure would also increase the public’s confidence in the system by which legislation is considered”. It was “mindful that the
matter of drug classification is of great interest to the public”.

48. In all the circumstances of the case, the public interest in disclosing the Document in full outweighs the public interest in protecting the formulation of government policy or ministerial communications.

49. Please order the disclosure of the May 2006 document Review of the UK’S Drugs Classifications System – a Public Consultation forthwith