Freedom of information appeal on drugs classification – almost 40 pages of black censor pen.

A few weeks ago this blog carried the news the the “Drug Equality Alliance” had won a freedom of information demand to get the proposals to review the drug classification system made by Charles Clarke when he was Home Secretary in 2006 made public. However, as the date the information was due to be released fell within the general election campaign, it came as no real surprise to hear that the Home Office had appealed at the last minute as this blog reported at the time.

Now the election is out of the way and Charles Clarke is no longer an MP, we have a tiny little  bit of the drugs classification report released under the FOI ruling but the vast majority remains, to use the strange term for censorship, “redacted” by the big black pen pending the outcome of the appeal. Darryl Bickler of the DEA explains in a recent comment to the blog announcing the appeal mentioned above:

I now understand that the Appeal from the Home Office refers to 2 categories of information.  S 21 information and s35 (1) (a) information.

The Home Office has conceded the release of the S21 information but now appeals only on the s35(1)(a) info (ministerial decision making processes).  We have approx 40 pages disclosed by Home Office today with whole sections redacted.

In the redacted sections we see they want to hide the following sections:

1. The Ministerial Forward (!!)
2. The Purpose of the Review
3. The Options for consideration – alternative classification systems.

This is what the DEA has sent to UKCIA with comments by me.

Review of the UK’s Drug Classification System, a Public Consultation, May 2006

We are at least allowed to see the title! Note this was a proposal for a public consultation.

Purpose: [Redacted]

We aren’t, however, to know what the purpose of the review was to be which seems a strange thing to censure, what was it for if not to review the workings of the UK’s drugs classification system? We can only speculate.

Ministerial Foreword: [Redacted]

Again, not something we are to be allowed to know about which is quite strange.

Consultation questions: [Redacted]

Alternative systems for consideration: [Redacted]

So no idea of what questions the public consultation was going to ask or the alternatives to be considered, has someone dared to suggest serious drug law reform because the present sytem wasn’t working?

But we are allowed to see a bit of historical perspective which underpinned the Misuse of Drugs Act (MoD act)

3.4          Under the Dangerous Drugs Act 1964/ 1967, all drug offences were treated with the same degree of seriousness. For example, cannabis and heroin possession penalties attracted the same level of penalties. Increasing pressure for reform began to build as the law did not recognise relative harms different drugs caused and it was therefore deemed disproportionate and unfair.

Darryl Bickler of the DEA sees this as  a vital admission, ie: that the failure to recognise the relative harms of different drugs having been seen as being  “disproportionate and unfair”. The fact that this perception has been recognised within government is certainly interesting.

3.5          The Misuse of Drugs Act 1971 sought to address the perceived inequalities by establishing a scale of harm… The Labour Home Secretary, James Callaghan said: “The object here is to make, as 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”.

This  establishes that the Misuse of Drugs act is supposed to reflect the relative harms of drugs in its workings and that the classification of those drugs will be based on the scientific understanding of the potential for harm. It apparently says nothing about the classification system being designed to “send out messages” to any particular section of the population in addition to this potential to cause harm, which was the reason given for returning cannabis to class B, nor to allow politicians to base their judgement of the classification of drugs on anything else they might like to think of, it’s clear that the ABC system is based solely on the science of the potential for harm. It would thus seem that Gordon Brown’s decision to reclassify cannabis to class B based on other considerations was an abuse of the MoD act.

But then we then have

4.15        …the drug 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, prescription, 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 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). Legal substances are therefore regulated through other means.

That is a statement of opinion really, not something drawn from the wording of the Misuse of drugs act and it’s clearly full of holes. Cannabis, of course has a “deeply embedded historical tradition and tolerance of consumption” amongst many cultures that make up the UK population. The limitation of this exception to caffeine, alcohol and tobacco is clearly a subjective distinction based on little more than culturally biased (one might almost say racist) principles. It is also true that over the past 40 or so years cannabis use has become widespread to the point of arguably becoming normalised within the mainstream UK culture, at least in many areas of the country. If there is a logic in not including alcohol and tobacco within the MoD act based on cultural acceptance, then it should clearly apply to cannabis as well.

Legal and socially acceptable substances
Relationships with alcohol and tobacco

6.1          People have used substances that alter mental functioning almost since the beginning of time. Some are, or have become socially acceptable, whilst others have been made illegal. Alcohol and tobacco have a long tradition of social acceptability in the majority of countries across the world (with the obvious exception of Muslim countries in respect of alcohol, whilst tobacco is becoming less acceptable in certain countries). The production, marketing and distribution of these undoubtedly harmful substances tend to operate within a regulated regime of supply…

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…

It clearly isn’t just “young people” who question the logic of prohibiting some drugs whilst tolerating others, it goes across the age spectrum.

Controls

Here of course the word “control” is being used in the political sense of meaning prohibition, which as we all know actually means “removing from a regime of effective control”

6.8          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 widely available drugs such as alcohol and tobacco.

Again, this is not something restricted to “young people”.  But more importantly what is this paragraph actually saying? It seems to imply that the only reason prohibition isn’t applied to alcohol is because it would be impractical to do so because of the sheer number of users of that drug and the fact that they simply would not accept the imposition of prohibition. So where is the cut-off point? At what level of use does it become impossible (or apparently undesirable) to prohibit a drug because of the number of users and thus the “impracticality” of doing so? Such a  consideration is not one normally applied to the application of the criminal law of course and on several occasions politicians have refused to consider drugs law reform simply because large numbers of people refused to obey the law. Yet here we see the government giving precisely that reason for not applying prohibition to alcohol.

Cannabis, of course, is “widely available” and is certainly not subject to any form of control.

6.9          In terms of death, illegal drugs amounted to 1388 in 2003 compared to 20,000 for alcohol and 100,000 for tobacco.

So clearly the imposition of prohibition of some drugs – ie their inclusion within the MoD act is not based on the harm caused by specific drugs but by a perception of their “cultural acceptance”. This of course is not actually a distinction the MoD act makes and seems to have been invented by politicians to justify the present situation.

6.10 [Redacted]

6.11 [Redacted]

So there you have it, we might get more depending on the outcome of the appeal but if the Home Office wins we won’t be told why. Those tiny snippets of information came from a 40 page report so there is clearly a lot there they really don’t want anyone to see and that alone points to there being a huge problem at the heart of the government’s drug policy; they dare not allow the facts of the debate into the public arena because they would seriously undermine the government’s position. This is not how criminal law should be framed in this country and we can only hope that the incoming government of whatever hue it finally adopts will be more open and honest than the last lot. But don’t hold your breath.

12 thoughts on “Freedom of information appeal on drugs classification – almost 40 pages of black censor pen.

  1. Good work Derek, and congratulations to the DEA for your persistence.

    NO great suprises but good to see at last. Pathetic/inexcusable that the Home Office have redacted so much. Embarassment is the only reason – as has been revealed in our experience when redacted sections have emerged subsequently (as happened with the strategy unit drugs report in 2005 for example).

    Hopefully the rest of this will soon emerge.

    Is there a link for the released document?

  2. No link to the blacked out document yet but hopefully there will be soon, I’ve asked DEA to scan it in. It should be online in all its censured glory.

  3. Thank you Derek for being the enthusiastic mouthpiece of this ongoing story – they know that we know that they know that they are administering the law against the evidence – they are just ‘brassing it out’. This document will reveal that to be the case – we now witness wilful obstruction of the truth – what I view to be illegal administration by the Home Office, leading to yet more severe miscarriages of justice. The Courts need to wake up fast to the fact that they must intervene or become complicit in this outrage. It’s perfectly simple – if there is no correlation between sentencing of offenders and the actual seriousness of an offence (to the point of where in many cases there ought to be NO offence), then it’s an arbitrary process, and that is the definition of injustice – and that is just the procedural invalidity – the substantive invalidity goes to the heart of the vile nature of this oppression, this being the inequality of treatment borne from the errors of law (some authorities say that where persons perceive such an invalidity, they are not obliged to obey that law). They are admitting here to excluding groups of people from the operation of the law because it would be politically unpopular. So, this scape-goating means (in my direct experience as a former solicitor) that an organised business that sells the dangerous drug alcohol in a lethal dose (say a litre of cheap vodka) to a child of 14, on a third offence, gets a fine, and this can be £80 for a small operator or a few thousand pounds for Tesco, and yet, an adult growing a few cannabis plants for private use might easily be sent to prison for a year and the maximum is 14 years. It’s happening every day and I am seeing experienced Judges justifying it every week despite knowing all of this.
    Paragraph 4.15 reveals errors of law made by the government: The Home Secretary claims a power he does not possess: to “exempt individuals or classes of individuals from the operation of the law” by excluding de facto the “dangerous or otherwise harmful drugs” alcohol and tobacco from the Act’s control.
    The Home Secretary also believes in the “illegality of certain drugs”, i.e. that some drugs or “substances” are “legal” whilst the Act makes other drugs or substances “illegal”.

    Thus they admit to administering the law based upon the very same indices of discrimination as were used to justify racism, homophobia and sexism.

    Just a quickie on your wording – lets always remember that alcohol and tobacco are firmly within the Act’s purview, they are not excluded by the Act, they are actually included in the Act by being dangerous or harmful drugs which may cause a social problem – what excludes them from the Act’s control in practice is a failure by the executive to exercise their Section 2(5) powers to bring them under control. Always remember, it’s not the Act that’s at fault, it’s the working of it by the Government and the Court’s willingness to allow them to do what they want without any safeguards at all. Think on it, what safeguard is there? Parliament can have no say in any failure to create regulations, the ACMD don’t understand the law either and have not made recommendations as they are supposed to do (and if they do they will be ignored or sacked).

    I cannot see the Tribunal upholding the Home Office appeal, they are on weak grounds in my view. Doubtless they will appeal again if they lose, but it’s just more bad faith which can not survive scrutiny. I say to whoever takes the reigns – have the integrity to come clean because we know that you know what injustices are going on, and that makes your failure to act reprehensible.

  4. PS – I see the Home Office is still insisting that this is a draft and part of ministerial consultation – however my suspicions and the ICO’s as well are that this was a final and public paper.

  5. Have I asked for the right paperwork here?

    Dear Sir,

    Can you please send me a copy of the Review of the UK’s Drug Classification System, a Public Consultation, May 2006 please?

    I can’t seem to find it online so I thought I’d ask for it under the FoI act. If it is available online please can you send me the link?

    If it is not available online, please can you tell me the reasons for not publishing the findings for public inspection?

    Would the Home Office Minister be hiding the information from the public because they didn’t like the results?

    Are the results “secret”?

    Yours,

    Nik Morris

  6. It was actually the Home Secretaries proposal for a review, not actually a review as such so it was never intended to be published. What we have here is a release (sort of) obtained under the Freedom of (a tiny little bit) of information act.

    So what you need to ask for would be specifically the bits which are listed as “redacted” above from that proposal by the Home Sectretary.

  7. We were expecting a consultation paper made public on the way forward, this is what he [C. Clarke] said:

    “The more that I have considered these matters, the more concerned I have become
    about the limitations of our current system. […] 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.”

  8. I’m looking forward to seeing the released document. Anyone know the date of the tribunal?

  9. Really good onem

    Really interesting and absurd ( well not quite it is the government we are talking about – crackheads and alchoholics! )

    Anyway keep it up man!

  10. I am conducting another FoI concerning the ACMD at the moment, they refused of course and now I have to appeal to the Home Office. The subject of the FoI is about the interference into the ACMD by the Home Office so it seems a little strange that they are the one’s determining it, but I digress; they say that the information (which may of come from a departing memeber) was too frank to be made public. My response in part:

    “Your letter refers to the potential ‘frankness’ affecting the effective conduct of public affairs – in my view ‘frankness’ of individual views about preventing drug harm is not something that the public ought to be protected from, as the ‘Talk to Frank’ brand presumably seeks to establish!”

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

    EA/2010/0075

    Information Commissioner Respondent

    &

    The Home Office Appellant

    The Public Interest

    1. Mr Casey William Hardison has requested joinder in this matter to represent the
    public 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 rational 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”. (Emphasis added)

    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 minirnising
    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”. (Emphasis added)

    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, emphasis added)

    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, emphasis added)

    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-,
    emphasis added)

    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, emphasis added)

    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, emphasis added)

    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 rational
    scale 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, emphasis added)

    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 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.”

    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

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