Pubdate: Tue, 20 Feb 2001 Source: Times, The (UK) Copyright: 2001 Times Newspapers Ltd Contact: PO Box 496, London E1 9XN, United Kingdom Fax: +44-(0)171-782 5046 Website: http://www.the-times.co.uk/ Author: Francis Wilkinson, Chief Constable of Gwent from 1997 to 1999 HUMAN RIGHTS ACT WILL MAKE CANNABIS LEGAL When the Human Rights Act had been passed by Parliament but had still to take effect, the Lord Advocate in Scotland expressed the hope that the English and Scottish courts would never have to use the power in the Act to declare a law incompatible with the European Convention on Human Rights. In similar vein, the Lord Chancellor, Lord Irvine of Lairg, talks of the Act as "a strong magnetic field" across English law, emphasising its interpretative rather than its declaratory effect. It is natural enough that the Government's law officers should have such hopes but perhaps more surprisingly that they are shared by eminent human rights lawyers. Lord Lester of Herne Hill, QC, has said in this supplement that the Human Rights Act "will have to be interpreted so as to weave Convention rights into our law, rather than tearing gaping holes in it" if it is to succeed. Elsewhere, he has written of "domesticating" the Convention rights. The Human Rights Act has been with us only since October for its main provisions but experience of it so far supports these aspirations. There have been no declarations of incompatibility. The main area of attention has been legal procedure under Article 6, the right to a fair trial. The courts have been adjusting their own procedures rather than requiring ministers to review the law of the land. Change seems to have come mainly for lawyers. So is Section 4 of the Act, which allows courts to issue declarations of incompatibility, a dead letter? Is English law already in accordance with the Convention on Human Rights so that no major change will be needed and procedural tinkering will be its whole effect? In relation to one important area of law I believe the answer is "no": the prohibitory laws on drugs are contrary to at least one Article of the Convention and will have to be changed. Article 8 of the Convention says "everyone has the right to respect for his private and family life, his home and his correspondence". It goes on to provide a series of circumstances in which a public authority's interference with the right is permitted -- "such as is in accordance with the law and is necessary in a democratic society in the interests of national security, public safety or the economic wellbeing of the country, for the prevention of disorder or crime, for the protection of health or morals, or for the protection of the rights or freedoms of others". If the Government is challenged under Article 8 it can use any or all of these justifications, but it is doubtful whether any of them will do the job. Many of them are not relevant or, like the prevention of crime and the economic wellbeing of the country, tend rather to favour legalisation. The justification for interference with the right that is likely to be most relied upon by a government is that relating to the protection of health. The point is that smoking cannabis is bad for you, as smoking tobacco is and as drinking alcohol in more than small quantities is, but that its health effects on users are rather less serious than those of these two legal drugs. The Lancet has concluded from an analysis of hundreds of publications on cannabis "that on the medical evidence available, moderate indulgence in cannabis has little effect on health, and that decisions to ban or to legalise cannabis should be based on other considerations". Cannabis is remarkably safe: research on rats has found that it would need 10,000 times the daily intake of a moderate to heavy user before someone died from being poisoned by it. Paracetamol and aspirin are much more dangerous. And when other considerations than health are taken into account, the prohibition of cannabis is disproportionate to its effects. Cannabis has been demonised by being placed on the wrong side of the law for reasons that are purely historical. It did not happen to be in common use in the developed world when the international conventions on drugs were first signed. Now it is, and the law is out of date. It will not be long before Article 8 is used to challenge the cannabis provisions of the 1971 Misuse of Drugs Act. Judges can be expected to be wary of making a declaration of incompatibility that would be likely to lead to such major social change. The European Court of Human Rights gives a generous margin of appreciation where a decision concerns "complex, scientific, legal, moral and social issues, in respect of which there is no generally shared approach among the contracting states" . Whether they follow European principle or English precedent, English courts are likely to take a similar line. For a time courts will avoid, in Lord Lester's phrase, tearing a gaping hole in our law. Declarations are a new power which they will use with caution. But Article 8 offers such scant grounds for a government to continue cannabis prohibition that the case for legalisation will in time be successful. The question is whether the turning point for legalisation will be in Parliament or in the courts. The author was Chief Constable of Gwent from 1997 to 1999 - --- MAP posted-by: Richard Lake