06 August 2008

Cannabis Reclassification - a pawn in the Prohibition war?

Back in May, we looked at how the reclassification of cannabis had become a political pawn. We reflected on how a Government under attack and with plummeting popularity used the decision to move cannabis back to Class B as a political tool in the face of expert evidence.

But above and beyond the UK Government, numerous other interest and lobby groups were promoting their viewpoints. And so while cannabis had become a pawn in the battleground of UK politics, it had also become a key piece in a conflict between the polarised camps of prohibitionists and legalisers.

When cannabis had been initially moved from Class B to Class C, it had been heralded by some as a first step in the liberalisation and reform of the drug laws. Given that it was the first time a drug had been reclassified down, it is understandable that some would view this as a sign of things to come.

Conversely, the move was viewed less positively by a range of prohibitionists. From the International Narcotics Control Board down through to the various pressure and lobbying groups such as Europe Against Drugs and the Drug Prevention Alliance, the downgrading of cannabis represented one of the biggest setbacks that they had experienced, and elicited howls of outrage.

So when the discussion about cannabis resumed and the Government contemplated a move back to Class B, the prohibitionists went to battle with a furore which had less to do with the case for cannabis per se but more to reassert the prominence of the prohibitionists’ message.

The final decision to move cannabis back from C to B was therefore welcomed by prohibitionist groups, less because of the fears about cannabis safety and more because it put (they believe) a prohibition tendency back in the ascendancy.

Unfortunately, truth was once again the first casualty of this drugs war, and the nuanced evidence and arguments relating to cannabis were lost within a slew of hyperbole, claims and counter-claims. Individual experience and small studies were cited as evidence of greater harm. The tabloid press, especially the Daily Mail, ran headline after headline citing the increased risks of strong cannabis.

Key progenitors of these hyperbolic arguments included Europe Against Drugs (EURAD) who have been vocal in their demands for cannabis to be reclassified. Key amongst these was Mary Brett, a former secondary school teacher from Amersham who now spends her time culling journals for negative cannabis stories, and promoting these as “facts” to support the prohibitionist arguments.

Her document, “Cannabis – The Facts” is in turn used by Debra Bell of “Talking About Cannabis.” TAC was initially set up by Bell, a journalist, as a way of exploring and discussing her family’s experience of cannabis. This role morphed in to a lobbying group demanding that cannabis be moved back to Class B and in an amazingly short time, TAC had face time with the ACMD and were being routinely cited by the media. TAC say that they are “currently preparing educational packs for schools with a strong prevention message, written by drug experts.” Presumably, with contributions by Brett, and following the line established by EURAD.

TAC are now members of EURAD, and as such presumably endorse EURAD’s other articles of faith, which include the abolition of needle exchange, and other harm reduction approaches.

Also beavering away at the cannabis issue, though less prominently than TAC, was the Drug Prevention Alliance, led by Peter Stoker with the assistance of former customs officer David “Claude” Raynes. Interestingly, these two well-established prohibitionists are now very active within the Foundation for a Drug Free Europe – a Scientology-derived campaign group which promotes Narconon treatment models and is staunchly prohibitionist. They are joined here by regular Drink and Drug News magazine contributor and long-standing Scientologist, Ken Eckersley.

Following the Home Office’s announcement regarding cannabis reclassification, a congratulatory letter in the Times was co-signed by, amongst others Bell, Brett, Raynes and Stoker, bringing together an alliance of Prohibitionists whose primary interest is not in Cannabis, but in wider prohibition.

The irony of all this is that it has been that cannabis has flourished and increased in potency under a regime of prohibition. Despite the fact that production and supply has consistently carried a maximum sentence of fourteen years in the UK since 1971, the sentence has not prevented first importation and then home-growing in the UK.

Cannabis became stronger and less safe within a prohibited, unregulated under-researched market. Just as under alcohol prohibition people were at risk through stronger, impure bootleg drink, so people were put at risk through illicit cannabis in the same way.

Producer countries such as Morocco and Algeria, who had historically produced cannabis resins with a good mix of THC and CBD saw home production curtailed to meet the demands of the INCB. Rather than risk importation, home-growing became the more profitable, lower risk alternative. And the end-product – high THC/low CBD herbal cannabis was the net result.

All this happened under prohibition – the stronger, imbalanced strains of cannabis that dominate the market were a result of an unlicensed, un-regulated market. The process of prohibition contributed to the increase in cannabis-related mental health problems.

It is only now, through legal research under Home Office licence, that researchers are becoming aware of how important the ratio of THC to CBD in cannabis is, and how CBD may cushion or protect against some of the negative effects of high THC levels in cannabis.

Left to an illicit market, the safety of a product will tend to take a secondary position to other factors such as potency or ease of production. Given a legitimate framework, it is feasible to produce a product with a lower risk profile.

Given, for example, licensing and regulation, it would be feasible to specify minimum CDB contents, maximum THC contents, and impose higher levels of excise duty on stronger strains.

By clear product labelling and allied information campaigns, the product available (age-restricted and licensed) would be the least hazardous option that could be made available.

By opposing this approach, and pushing the Government away from such a model, the Prohibitionists have ensured that the cannabis on the street will remain as unsafe as it can be, and exposed to risk the very young people that they claim so passionately to want to protect.


Fredric said...

Be very careful -- Scientology's fake "drug treatment" fraud they commit calling themselves "NarCONon" is proven dangerous and, in any event, does not work. It is a financial scam perped against the most vulnerable among us.

Seek legitimate treatment, absolutely, but do not fall for Scientology's "NarCONon" frauds. For details about Scientology's fake "drug treatment" scam, check out http://www.crackpots.org/ and see what doctors, health officials, and law enforcement have to say about this Scientology crime.

Sunshine Band said...

A (draft) Statement from the Drugs Equality Alliance (DEA)

We believe the Misuse of Drugs Act 1971 c.38 (“the Act”) is being administered in an arbitrary and discriminatory manner based on historical and cultural factors that lack a consistent and objective basis contrary to Article 14 and within the ambit of other convention rights. This denies equal protection to persons engaged in property activities with “controlled drugs”, s2(1)(a), with respect to persons engaged in identical property activities with the drugs alcohol and tobacco.

At the outset, it is vital to bear in mind these facts about the Act:

• The Act seeks to reduce or eliminate the harmful effects, to society and individuals, which may occur via the misuse of “dangerous or otherwise harmful drugs”.

• In seeking to reduce or eliminate these harmful effects, the Act provides for the flexible regulation of property rights re “dangerous or otherwise harmful drugs”.

• All drugs capable of being misused are within the Act’s ambit.

• The Act is not fettered to any regulatory regime or policy option; however, any regulatory regime or policy option is fettered by the Human Rights Act 1998.

• The Act is kept “under review” by a statutory Advisory Council with the duty to advise on any exercise of the powers provided in the Act and any “alteration of the law”, s1(2), thought necessary to meet the Act’s aims.

• The Act extinguishes property rights in “controlled drugs” by default, s2(1)(a); but, the Secretary of State may make any regulations he considers necessary, s31, to achieve the Act’s aims after consultation or on the advice of the Advisory Council.

With these facts in mind, let us now examine the alleged discrimination.

I. An Artificial Divide in Drug Law Administration

On May 22nd 2002, having concluded a wide-ranging enquiry into Government 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 and to the social fabric in general than illegal ones”.

The Home Affairs Committee continued:

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

And, on July 31st 2006, after a rigorous enquiry into the use of scientific advice and evidence in the classification of drugs under the Act, the Introduction 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? declared:

“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 concluded that the current classification system is not fit for purpose and should be replaced with a more scientifically based scale of harm”. (Emphasis added)

Vindicating the Committees’ assertions above, on September 14th 2006, the statutory Advisory Council on the Misuse of Drugs (“the ACMD”) published Pathways to Problems: hazardous use of tobacco, alcohol and other drugs by young people in the UK and its implications for policy. This commanding report declared unequivocally that the current artificial divide in the drugs use continuum lacks a consistent and objective basis:

“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. […] these distinctions are based on historical and cultural factors and lack a consistent and objective basis”. (Overview, paragraph 1.13, emphasis added)

Faithful to this, the ACMD went on to admit that they had neglected their duty under the Act and, in doing so, had discriminated upon the ground of “legal status”:

“Although its terms of reference do not prevent it from doing so, the ACMD has not considered alcohol and tobacco other than tangentially. 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 and 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)
A month later, on October 13th 2006, in 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? Cm 6941, HM Government confirmed inequitable administration of the Act on the grounds of “historical and cultural precedents”:

“Government [believes] the classification system under the Misuse of Drugs Act 1971 is not a suitable mechanism for regulating legal substances such as alcohol and tobacco. However, it should not be imputed that Government takes the harms caused by these drugs any less seriously”. […] “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 […]. Legal substances are therefore regulated through other means. […] However, the Government acknowledges that alcohol and tobacco account for more health problems and deaths than illicit drugs”. (Introduction paragraph 7 & p24, emphasis added)

Whilst we believe the entire Command Paper Cm 6941 demands the strict scrutiny of a duly appointed public body charged with pursuing a full Inquiry to the issues raised herein; here are a few thoughts and questions about this excerpt:

• Inherent within “historical and cultural precedents” is subjectivity, arbitrariness, prejudice and irrationality. Cf. slavery, racism, sexism, and homophobia.

• No drug or substance is “legal” or “illegal”, rather the Act regulates human action.

• Possibly ignorant of ss7, 22 & 31, HM Government fails to explain how the Act is “not a suitable mechanism for regulating [human action re] alcohol and tobacco”.

• Possibly ignorant of ss7, 22 & 31, HM Government ostensibly believes that classifying a drug under the Act mandates the permanent extinction of property rights in that drug; otherwise, why would it be “unacceptable” to apply the Act to “the vast majority of people who use, for example alcohol, responsibly”?

• HM Government acknowledges that responsible use of drugs which “alter mental functioning” is both possible and commonplace.

• If “a deeply embedded historical tradition and tolerance of consumption of a number of substances that alter mental functioning” exists, why is this tolerance not extended to so-called “illicit” drugs?

• If HM Government does not take the greater harms caused by alcohol and tobacco “any less seriously”, then why are those who engage in property activities re alcohol and/or tobacco not equally deprived of their liberty and property?

Accordingly, we call for HM Government to explain how “historical and cultural precedents” and “unacceptability” are rational and objective justifications for treating people concerned in alcohol and tobacco “less seriously” than those people concerned in the equally or less harmful “controlled drugs”.

HM Government is compelled to explain their arbitrary and unequal administration of the Act by a paper published March 24th 2007 in The Lancet entitled ‘Development of a rational scale to assess the harm of drugs of potential misuse’. Authored chiefly by Professor David Nutt, the incoming ACMD Chairman, and Professor Colin Blakemore, the former Chief Executive of the Medical Research Council, this paper describes the first scientific ranking of the relative harmfulness of the most commonly used drugs, and, in doing so, fatally undermines HM Government’s administrative rationale. They said:

“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)

When viewed collectively, the Science and Technology Committee report Drug classification: making a hash of it?, the ACMD report Pathways to Problems, and the Lancet paper Development of a rational scale to assess the harm of drugs of potential misuse have thoroughly eviscerated HM Government’s administrative rationale for classification and regulation distinctions made under the Act. Together they found that:

• There is no clear distinction between socially acceptable drugs, like alcohol and tobacco, and the drugs controlled under the Act.

• The exclusion of alcohol and tobacco from the controls of the Act is arbitrary.

• Psychoactive drugs, including alcohol and tobacco, are used worldwide in the pursuit of pleasure, solace and acceptance.

• HM Government’s artificial distinction between drugs like alcohol and tobacco and the drugs controlled under the Act is based on historical and cultural precedents that lack a consistent and objective basis.

Nevertheless, on September 27th 2007, an HM Government official response to the Cabinet Office Better Regulation Executive reaffirmed a persistent reliance on the historic artificial divide in their discriminatory administration of the Act:

“The Government’s policy is to regulate drugs which are classified as illegal or controlled through the 1971 Act and to regulate the use of alcohol and tobacco separately. This policy sensibly recognises that alcohol and tobacco do pose health risks and can have anti-social effects, but recognises also that consumption of alcohol and tobacco is historically embedded in society and that responsible use of alcohol and tobacco is both possible and commonplace”. (Emphasis added)
Yet more than a decade ago the 1997 United Nations World Drug Report recognized the inconsistency inherent in “cultural and historical justifications” under the heading of The Regulation-Legalization Debate:

“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 principle targets of today’s anti-drug messages – the young”. (Emphasis added)

In making the international comparison, it is imperative that interested parties do not lose sight of the fact that the Act does not declare that its intent or purpose is to give further effect or specific performance to the United Nations drug Conventions. Said another way, since the Conventions are not incorporated into United Kingdom law, neither the Act nor its powers are fettered to the UN drug control regime.

Below we set out our short answers to the Michalak questions frequently used by the domestic Courts in determining unlawful discrimination.

II. The Engaged Convention Articles

The Act regulates the exercise of property activities with respect to “dangerous or otherwise harmful drugs” property, i.e., importation/exportation, s3; production, manufacture, extraction, preparation, supply, s4; possession, possession with intent to supply, s5; cultivation of Cannabis, s6; operation of premises where drugs property activities take place, s8; smoking Opium, s9; etc. These controls on the use of drugs property are within the ambit of ECHR Protocol 1 Article 1. As applied, the Act denies all meaningful use of controlled drugs to non-professional persons.

The Act aims to reduce or eliminate the harmful effects, to society and individuals, which may arise via the misuse of “dangerous or otherwise harmful drugs”. The current administration of the Act prohibits, under criminal penalty, the exercise of all non-scientific and non-medical property activities re “controlled drugs”. Yet, even where conduct poses a danger to health or, arguably, where it is of a life-threatening nature, ECHR case-law regards State imposition of compulsory or criminal measures as impinging on the private life of the applicant. Thus, the Act’s criminal measures are within the ambit of ECHR Article 8 and require justification.

The Act controls the exercise of property activities re psychoactive drugs. It is accepted that people consume psychoactive drugs to change the way they think, feel or behave. And, HM Government has declared that there is “a deeply embedded historical tradition and tolerance of consumption of [… drugs] that alter mental functioning” (Cm 6941). Thus, the Act’s regulation of human activity re drugs that alter mental functioning engages ECHR Article 9, “freedom of thought”.

Evidence suggests that the Act’s drug classification system is being administered in an arbitrary fashion along an artificial divide based on historical and cultural precedents that lacks a consistent and objective basis. This ultimately results in arbitrary deprivations of liberty contrary to Article 5. Indeed, with reference to both ordinal and cardinal proportionality, sentences of imprisonment for offences under the Act, conjunct unlawful discrimination, may be severe enough to engage Article 3.
III. The Analogous Comparator

Property rights in alcohol, tobacco and other drugs ‘in common use’ are exercised by mankind with the same intent – to alter mental functioning and so produce pleasurable and sought-after effects. Thus persons engaged in property activities with “controlled drugs” are in a substantially analogous situation with respect to persons engaged in identical property activities with the drugs alcohol and tobacco.

IV. The difference of treatment

We believe HM Government’s historical and culturally based administration of the Misuse of Drugs Act 1971 disregards fundamental notions of human dignity and equality before the law and has a disparate impact on those who, as a class, are concerned with, use or prefer controlled drug property which, analogous to alcohol and tobacco, alters mental functioning. Thus, those concerned with the non-professional exercise of property activities re controlled drugs are denied:

• the right to autonomy, self-determination and free and informed choice in the consumption of drugs which alter mental functioning;

• the right to freedom of contract;

• the right to consumer protection, including quality control, appropriate labelling, and safe places of consumption and supply;

• the right to safer alternatives to currently legal drugs property;

• the right to be reasonably secure in their persons, papers and possessions

• the right to political and social inclusion.

As such, approximately 4 million persons in the United Kingdom, are forbidden by the Act – under intrusive surveillance and draconian penalty – from enjoying property rights vis-à-vis drugs which they have interests in while the vast majority of persons who use the equally or more harmful drugs, alcohol and tobacco, are entitled to autonomy, self-determination, free and informed choice, freedom of thought, freedom of contract, consumer protection and privacy.

Accordingly, we believe that this administrative discrimination cruelly denies equal protection under ECHR Article 14 to persons concerned with controlled drugs.

V. The difference of treatment is grounded in “property” and “legal status”

The Act discriminates between drugs property, not according to harmfulness to the individual or society when used or misused, i.e. rational and objective factors, but instead according to the specific property used, preferred or tolerated by the ‘vast majority’. Thus the drugs property used, preferred or tolerated by the ‘vast majority’ are excluded from the Act’s controls, whilst other drugs property used, preferred or tolerated by diverse minorities are included. This confers “legal status” to the drugs property used, preferred or tolerated by the ‘vast majority’ and “illegal status” to the drugs property used, preferred or tolerated by diverse minorities.
VI. The difference of treatment is neither objective nor reasonable

HM Government admitted basing their discriminatory administration of the Act “in large part on historical and cultural precedents” and not primarily on objective factors such as “pharmacology, economic or risk benefit analysis” in Command Paper Cm 6941. The Advisory Council empowered by section 1 of the Misuse of Drugs Act 1971 has stated unequivocally in 2006 that the difference of treatment brought about by the artificial distinction between alcohol and tobacco on one hand and controlled drugs on the other is “based on historical and cultural factors and lack[s] a consistent and objective basis”. The 2007 Lancet paper entitled ‘Development of a rational scale to assess the harm of drugs of potential misuse’ confirmed the arbitrariness, from a scientific perspective, inherent in basing the administration of the Act on historical and cultural precedents.

VII. In the public interest, we recommend that a high level thematic inquiry is undertaken into this alleged contravention of the Human Rights Act 1998.

We believe that the maladministration of the Act contravenes Human Rights, and that this arises via the concerted actions of the Home Office and the ACMD. Each of their respective roles needs to be strictly scrutinised.

At the heart of the matter, we believe that HM Government under-regulates the conduct of the majority, who exercise property rights in alcohol and tobacco, and over-regulates the conduct of disparate minorities, who exercise property rights in equally or less harmful controlled drugs. This should be thoroughly investigated.

We believe that were the classification and control system under the Misuse of Drugs Act 1971 administered in a substantially similar manner to the Medicines Act 1968, where each drug starts out heavily controlled and over time – as evidence of efficacy and safety in responsible use becomes available – the restrictions ease, we could go a long way to solving the intractable problem of effectively integrating the responsible use of dangerous or otherwise harmful drugs into our society. This does not require new primary legislation; it can be accomplished within the existing provisions of the Act; and, it should be implemented as soon as possible.