Legal Arguments

Overview

We believe that six sentences on page 24 of Cm 6941, a Government Command Paper, elucidate abuse of power by the Secretary of State for the Home Department ("SSHD") in the administration of the Misuse of Drugs Act 1971 ("the Act") grounded in errors of law, irrationality and unfairness.

The six sentences of Cm 6941, with necessary changes and with emphasis, are:

1. "Government fully [believes] that the classification system under the Misuse of Drugs Act 1971 is not a suitable mechanism for regulating … substances such as alcohol and tobacco". (Is the Act suitable or not? Is this an error of law?)
   
2. "The distinction between legal and illegal substances is not unequivocally based on pharmacology, economic or risk benefit analysis". (Does the SSHD really mean the distinction between alcohol/tobacco and 'controlled drugs'? Is this an error of law?)
   
3. "It is … based in large part on historical and cultural precedents". (Is this acceptable?)
   
4. "A classification system that applies to [alcohol, tobacco and 'controlled drugs'] 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". (Is the SSHD confusing 'control' with 'prohibition' here, otherwise, why would it be unacceptable? Is this an error of law? Is responsible controlled drug use possible?)
   
5. "[Alcohol and tobacco] are therefore regulated through other means". (Is this rational?)
   
6. "The Government acknowledges that alcohol and tobacco account for more health problems and deaths than illicit drugs". (Then why are they not controlled drugs?)

These six sentences from the SSHD contain three errors of law:

1. They show that the SSHD believes that the Act permanently proscribes the enumerated activities re a controlled drug, bar medical and scientific purposes.
   
2. In them the SSHD claims a power the SSHD does not possess, to exempt individuals or classes of individuals from the operation of the law by excluding de facto alcohol and tobacco from the Act's control.
   
3. They show that the SSHD believes in the "illegality of certain drugs", i.e. that some drugs or "substances" are "legal" whilst the Act makes others "illegal".

These three errors of law underpin the SSHD's abuses of the Act's discretion and so manifest the two inequalities of treatment that peaceful drug users suffer:

1. A failure to treat like cases alike, viz the unequal application of the Act to persons concerned with equally harmful drugs without a rational and objective basis; and
   
2. A failure to treat unlike cases differently, viz the failure to regulate persons concerned in peaceful activities re controlled drugs differently from persons causing harm.

Scrutiny of Cm 6941 and the Act shows that the inequality of treatment occurs because:

1. The Parliament neither stated an explicit policy nor fixed any determining criteria to guide the SSHD's decision-making re drug control and classification under s2(5) of the Act;
   
2. HM Government fettered the SSHD to an overly-rigid and predetermined "policy of prohibition";
   
3. The SSHD failed to understand and give effect to the Act's policy and objects; and
   
4. The SSHD arbitrarily exercised s2(5) and the incidental discretionary powers.

Download the full exposition of these Common Law legal arguments below:

Drug Equality Alliance Legal Arguments (PDF)