Proposals for banning drugs are more draconian than they seem
Wednesday 8 December 2010 12.50 GMT
The plan to remove the requirement for scientists or experts on the Advisory Council on the Misuse of Drugs (ACMD) as proposed in the Police Reform and Social Responsibility Bill is controversial for the reasons set out on this blog yesterday. But further study of the bill reveals more cause for concern.
Another shocking proposal in its pages seeks to shift the target of selective drugs prohibition from a duty to protect society from the harmful effects of drugs, to the goal of directly limiting the freedom of the individual.
John Stuart Mill's harm principle is at the core of British jurisprudence: individual liberty is respected even if the individual plans to do him or herself lethal harm. This is reflected in the Misuse of Drugs Act 1971, in that the harm a drug represents to the individual is irrelevant in law. The legislation is drafted specifically to protect society from the harmful effects of drugs, and not to encroach on individual liberty. This is why parliament stopped short of prohibiting the use of most drugs (except in the case of opium, the only drug whose unauthorised use is prohibited under section 9).
This enables the Act to be used as a flexible regulatory instrument using sections 7 (1)-(2), 22 (a) (i)-(ii) & 31 (1) (a)-(b) to make appropriate provisions for the supply of controlled drugs. While government has always maintained that such provisions should only be for medical and scientific use, nowhere is this suggested within the Act.
In 1971, government and parliament understood that they could not legitimately justify interference in the liberty, private lives and freedom of thought of citizens unless there was a pressing social problem creating an imperative to do so, and that in those circumstances, they should exercise only proportionate interference to address those problems. This is why the Act was worded in the following precise terms in Section 1 (2):
"It shall be the duty of the Advisory Council to keep under review the situation in the United Kingdom with respect to drugs which are being or appear to them likely to be misused and of which the misuse is having or appears to them capable of having harmful effects sufficient to constitute a social problem."
Note that in the above phrase "and of which the misuse is ... having harmful effects sufficient to constitute a social problem" it is the conjunction "and" that guarantees the civil libertarian character of the Act and recognises the distinction between risks of harms that affect principally the risk taker, and those with adverse social consequences. Government power can only be legitimate if it is exercised to protect society. Protecting responsible individuals from themselves is no business of the state.
However, in the new Police Reform and Social Responsibility Bill, this liberal principle is to be undermined with the proposed addition to the Misuse of Drugs Act: 'Section 2A'.
In subsection 3 (b) of the new proposed section - found in Schedule 16 paragraph 3 of the bill, the new "temporary class drug order" powers to be awarded the Home Secretary to control people with interests in new drugs, will substitute the term "harmful effects sufficient to constitute a social problem", with the shorter "harmful effects".
Social problems are surplus to requirements. The anti-civil-libertarian implications of this reorientation are enormous, even though a less severe approach is proposed for the mere possession of such substances, which will not be an offence under a temporary order if the drug is intended for personal use (though having said that, the absolute criminalisation of supply, as opposed to a form of product regulation, exposes users to unknown health and security risks).
And unlike for existing powers to criminalise personal activities involving controlled drugs, there is no proposed statutory role for the ACMD, which under the original Act required that the government should seek and receive advice from the ACMD before curtailing all property interests in a drug under the Act.
It is truly alarming that the government seeks to grant the Home Secretary such sweeping and arbitrary powers to imprison people for up to 14 years for supplying new substances, without being compelled to seek the advice of the ACMD, without regard to whether society is adversely affected, and without a requirement to provide evidence to back up belief in a substance's "harmful effects".