UK

Why The Press Was Wrong About Changing Drugs Laws Based On Human Rights

22/08/2015 08:13 BST | Updated 22/08/2015 12:59 BST

A landmark report by politicians, calling for a more liberal drug regime based on human rights, had one detail that attracted particular attention.

"Junkies could use privacy law to avoid jail," was one headline for a story that suggested our drug law could be at an end. A prominent MP predicted it could "open the floodgates" and lead to drug users challenging their prosecutions and winning.

This was in reaction to the All Party Parliamentary Group (APPG) on drugs reform's new guidance, which suggested, among other things, legal challenges to prosecutions for drug possession or growing small amounts for personal use, using Article 8 of the European Convention on Human Rights (ECHR), which covers the right to privacy and family life, as merely using a drug does not "injure other people's rights either directly or indirectly and therefore should not be criminalised".

MP Keith Vaz, chairman of parliament's Home Affairs Select Committee, condemned this in the pages of the Daily Mail and The Daily Telegraph.

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The Daily Mail's coverage of the report

"One exemption, though minor, could open the floodgates. Human rights legislation is not designed to be used in this way," he was quoted as saying by both papers, combining two issues that aggravate the right-wing press - liberalised drug regimes and human rights law creeping into different aspects of life - into one quote.

"Critics say that, in effect, the Human Rights Act is capable of trumping all other legislation," the Mail article added.

But lawyers told The Huffington Post UK that, despite such warnings, claims human rights law could "open the floodgates" for people challenging prosecutions were far-fetched.

Hugh Southey, a human rights barrister at Matrix Chambers, said he placed the prospect of such a challenge at less than 5%.

He told HuffPost UK: "I think there'd be massive problems with it. I can sort of see an argument but I would be, almost certain it would be bound to fail.

He said the European Court On Human Rights had been "reluctant" to conclude that Article 8 applied to private activities simply because someone wants to carry it out.

He compared it to the attempt to challenge the hunting ban under Article 8 in 2009, which the court rejected.

"It was said that hunting was part of people's identity, the court found that Article 8 wasn't even engaged," Southey said.

"I can see an argument [that Article 8 could be engaged on drugs possession] but the second question is proportionality.

"In circumstances where almost every country in the EU criminalises a large range of drugs offences, it seems to me it'd be fairly surprising for the court to go out on a limb and say, 'well, despite the fact that this a general practice, we're going to hold that, it's in fact protected by Article 8'."

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Ian Brownhill, an international human rights barrister, said that Article 8 was a qualified right, meaning it could be denied to people in certain cases, in contrast to the inalienable right to not be tortured, for example.

"I doubt it could be successfully invoked in the way set out here. In reality the Government, like it or not, can legislate to protect people where it's proportionate to do so. The Government can stop people hurting themselves," he added.

The APPG new guidance sets out how to bring about a much more liberal drug regime, based on principles espoused by the UN and contained in the ECHR, enforceable in UK courts thanks to the Human Rights Act.

The APPG guidance recommends using this framework to pursue changes, such as decriminalising possession, saying: "The war on drugs has failed and change is needed."

The guidance was published ahead of a UN session on global drugs policy next year. One campaigner described this as a "pivotal" moment for "an open and honest debate" on drug laws.

It argues that the UN's 1988 convention on drugs permits for drugs possession to be decriminalised as it distinguishes between drugs kept for personal use and those kept for trafficking.

It cited Spain as an example, where, it said, a series of Supreme Court rulings had left possession and consumption of cannabis was no longer considered a crime and existing law was now interpreted to allow consumption and cultivation, when grown in a private place.

Steve Rolles, a senior policy analyst for drugs reform advocates Transform, said opponents of the APPG report's recommendations, such as Vaz, were "ignorant of the evidence or being wilfully negligent".

"The human rights argument being made by the APPG are not well represented in the coverage and seem poorly understood by Vaz and other critics," he told HuffPost UK.

"The argument is that criminalisation of personal possession and use potentially violates a number of fundamental rights as established under the UN charter - which is the focus of the report. This is actually not the same as proposing a specific legal right to take drugs - as some of the headlines have wrongly suggested."

He added that Vaz's own Home Affairs Select Committee had previously recommended for a comprehensive review of Britain's drug law in 2012. "After a year scrutinising UK drugs policy, it is clear to us that many aspects of it are simply not working and it needs to be fully reviewed," Vaz said at the time. "We cannot afford to kick this issue into the long grass."

Rolles said: "This is also not a new or radical idea as Vaz has incorrectly implied. Many countries, have decriminalised personal use on the basis of legal challenges that criminalisation violates internationally or constitutionally enshrined rights. The report makes all this perfectly clear - citing many referenced examples. Perhaps Vaz has yet to read it?"

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MP Keith Vaz (pictured) was accused of not understanding the report he was criticised

Ann Fordham, executive director the UK-based International Drugs Policy Consortium, told HuffPost UK that the response to the international drugs trade had led to "extensive and devastating" human rights violations around the world, including people being held against their will in treatment camps in some countries.

"Re-orientating drug control to ensure that drug policies are underpinned by human rights principles is an urgent matter. The UN high level debate on drugs next April is a pivotal moment for an open, honest debate – one which we hope will focus on public health and human rights," she added.

"Punitive drug policies have been wasteful, damaging and ineffective and the guidance from the APPG is a welcome attempt to move the debate forward and modernise drug policies. Where the drug control treaties present a barrier to modernisation, they should be questioned.”

Southey, a human rights, said he believed drugs law in Britain probably would change within the next two decades, but added this was more likely to come about from domestic political pressure rather than a global series of legal challenges.

"If I was to predict, it's a difficult thing to do, where we'll be in 20 years time, I suspect we will have reformed drug law but it will be reformed drug law based on internal political change," he added.

"I think it will take a very long time. Generally, civil rights changes of this nature tends to be fairly incremental.

"It's such a radical change. I can't really see it happening. To be frank, what's more likely to happen is [change from] political pressure internally... Because there has been political pressure and it has probably been growing for reform our drugs law. I think that's much more likely to produce change."