Policy > General > Drug use and Civil Rights

Note:

This briefing considers the civil rights questions raised by drug prohibition, arguing for a new alternative legal framework. The Author is Roger Warren Evans, a member of the civil rights organisation Liberty. This is an edited version (Transform) of a paper submitted to Liberty by Evans arguing for Liberty to call for the end of Prohibition (for the unedited text contact TDPF). At the Liberty 2000 AGM the following motion was passed:

"This AGM upholds the right of access of every adult to the lawful supply of psychoactive substances for personal consumption save where expressly constrained by or under the law for the purpose of protecting minors, countering crime, treating addiction, or some other legitimate public purpose and calls on the government to reform the laws accordingly" (25.6.00)

Introduction

Over the next decade, each nation will reach its own accommodation between
prohibition and personal freedom, between the liberal and the authoritarian ethos. Seat belts and crash helmets may raise the same issues of principle, but they have far less resonance. It is the private, personal consumption of 'drugs' which triggers the key debate which is now upon us.

Humans have always been attracted by substances, which affect subjective states of mind. Beer, wine, distilled spirits, tobacco, coca, caffeine, cannabis, heroin, laudanum, opiates and hallucinogens - they are all in regular use the world over. The phenomenon is so widespread that it seems universal.

Whilst drugs bring widespread personal pleasure to millions, some have been shown to have an adverse mental or physical effect, some to cause lasting harm, and they all have differing addictive propensities. But the mere possibility of harmful personal consequences is not, and cannot be, sufficient to justify intervention by the state. By what right does any Government, in a free society, presume to interfere with this process? The deployment of coercive intervention should be challenged, from the outset, as a matter of first principle.

"Our thoughts are free", said Goethe. The individuals own state of mind is the ultimate zone of freedom, where no Government should enter in. By contrast, totalitarian regimes have been marked by a refusal to accept the ultimate freedom of the mind, the ultimate sovereignty of the individual. Political and spiritual intolerance and persecution follow.

It is wholly acceptable for the state to regulate the modalities of "lawful supply". But where the consumption of a psychoactive substance represents a private act, reflecting a private decision, with only individual consequences, there can be no foundation for any state preventive intervention at all, in its consumption, its procurement or its supply.

Five Qualifying Principles

There are clearly circumstances in which societal intervention is justified, and not to be seen as a wrongful abridgement of individual liberty. Indeed, there are five sectors in which state intervention is entirely appropriate, not by way of exception to this liberal principle, but by way of its specific application.

(1) The Maturation of the Young
The freedom itself adheres to the mature adult. There is a widespread consensus that the deployment of state resources is fully justified, both by way of positive education and supply constraints, to inhibit the consumption of psychoactive substances by the young.

(2) Contract enforcement
Where an individual has actually agreed not to make use of a psychoactive substance, or any such substances, state intervention is ordinarily justified to enforce that contractual commitment. In some sectors of employment, such constraints are demonstrably expedient: public vehicle drivers, of aeroplanes, trains, coaches, taxis, and other such safety critical positions all accept such constraints, and it is in the public interest that they should be held to their promises. The litmus test is the competence of individuals to perform required tasks, and contractual constraints should not go beyond that.

(3) Criminal law enforcement
The accommodation of psychoactive substances has long been a feature of criminal justice. For example, it is settled law that intoxication cannot be used as a defence, where other breaches of the law are alleged. It must also be evident that the administration of psychoactive substances without consent is and should remain a serious trespass to the person. Finally, difficult judgements have to be made where the consumption of psychoactive substances coincides with the presence of any underlying mental condition. These examples, properly understood, all affirm the principle of individual freedom, and reflect its proper reconciliation with other legitimate societal interests.

(4) Constraint upon social interaction
There are examples of circumstances where drug consumption may properly be constrained by law, e.g. where the consumption is in public or otherwise obtrusive to others, or where (even if in private) the consumption forms part of a wider pattern of collective behaviour with adverse consequences. It is for each society, in each age, to define the principles of intervention where others, who may be considered "at risk", are involved. The principle is difficult to apply, and several applications have been contentious (e.g. in the "passive smoking" debate, and in the decision of the Courts in the Spanner Case, where private consensual sado-masochistic practices were held to be unlawful). Nevertheless, although particular examples may be controversial, the principle of legitimate state intervention is not refuted.

(5) Public health
There are clearly circumstances where overriding considerations of public health justify state intervention and the abridgement of individual rights. These are well developed and widely understood: it is right that society should at all times ensure that risks to consumers of substantial harm should be avoided. By upholding the primacy of personal freedom, Liberty would not be seeking to reduce or constrain the effectiveness of these powers.

These five propositions are simply stressing that the right-to-consume adheres to adults only, and may be overridden in the pursuit of other legitimate societal interests, where drug consumption is shown to put others at risk of harm. These constraints leave unabridged the freedom of individual adult consumption, whatever the features of the psychoactive substance, in the absence of any demonstrable harm to others.

Five fallacious arguments

Throughout this debate, there are five types of argument which are fallacious, and which generate unending confusion:

(1) The wrongful attribution of cause
It is said that the prohibition of drugs is justified because of the growing scale of drug-related crime. It must be evident, however, that the true explanation for this explosion lies not with "drug" consumption itself, but with the very processes of prohibition which seek to contain it. In terms of societal consequences, the harm done by the "war on drugs" is immeasurably greater than any of the originating harms of consumption. Because of prohibition, illegal market prices and profits remain high, and poorer consumers are forced into crime to finance their consumption. Because of prohibition, criminal networks have been given an ideal point-of-entry into mainstream society, suborning legitimate institutions. Our very paradigm of criminal justice is unsettled by the need to gather proof of "victim-less" crimes, where those who are said to have been harmed are enthusiastic participants in the process. Intrusive surveillance, stings, entrapment - these Police practices are the common coin of drugs-law enforcement, threatening the privacy of millions, above and beyond those involved.

(2) The wrongful cumulation of individual action
Of all the fallacies that bedevil this debate, this is the simplest and the most deceptive. "One person doing drugs may be OK, but what if everyone does it? Surely that would undermine social order as we know it?" The cumulative effect of individual actions can, of course, become unacceptably disruptive. As a matter of civil rights, Liberty should assert that there are no circumstances in which the exercise by an individual of a civil right can become wrongful merely by its cumulation with the acts of other individuals.

(3) The wrongful exaggeration of risk
Proponents of prohibition and the use of the criminal law to penalise "drug" consumption commonly justify their arguments by the magnitude of the risk to life-and-health, which are run by their consumers. Yet all available statistical analysis places the risk of significant injury or death very low indeed. Even the risks of tobacco and alcohol, amongst the most dangerous of all psychoactive substances, compare favourably with the risks run (for example) by sports people and road-users. Liberty should have no truck with these forms of statistical manipulation, and should seek to dispel these fallacious contentions.

(4) The wrongful NHS constraint
It is commonly argued that prohibition is justified, because drug consumption can have harmful medical consequences, and therefore costs for the NHS. Certain NHS doctors are known to refuse treatment to heavy smokers, in reliance upon the same reasoning. That proposition is simply misconceived. No legal constraint can be justified on that ground. If that reasoning were sound, the introduction into any society of compulsory health insurance would mean the end of all personal risk-taking, the elimination of a wide swathe of individual freedoms.

(5) The wrongful prohibition of trading
One influential intermediate "position" is that, while individual adult consumption of drugs should be free of formal constraint, all other aspects of the possession, storage, supply, distribution and trading in the substance should be illegal. Such muddled thinking is unacceptable, as a matter of liberal principle. If adult personal consumption is lawful, then the corresponding trade must also be lawful. Where drug trading affects minors, legal counter-measures will be justified: that is not in contention. Nor in contention is the right of each society to impose regulation upon that lawful supply of drugs: one option is a state monopoly, and other forms of registration, regulation and licensing are easily imaginable, as with tobacco and alcohol.

Conclusion

We should take up a very simple position that the adult voluntary use of any psychoactive substance is a matter of unbridgeable personal freedom. As with all legal principles, there are exceptions. But it is for those who assert the exceptions to demonstrate the case for such action. The burden of proof should lie, not with those who uphold individual freedom, but upon the shoulders of those who contend for its qualification.

The "drugs laws" of the UK are illegitimate in principle and objectionable in practice. They should be repealed and replaced by a new liberal civic order, based on respect for the individual and upon the simple assertion of personal freedom. Where the adult consumption of a psychoactive substance represents a private act, reflecting a personal decision with only individual consequences, there can be no foundation for any state intervention at all, by way of either criminal or civil law. All taint of criminality should be removed, as with alcohol and tobacco.

Roger Warren Evans is a qualified barrister, company director and charity trustee. He is a senior fellow and Trustee of the Institute of Community Studies and was a leading national officer of Equal Rights, the 1960's campaign for race equality legislation. He has served as a London Borough Councillor and is now Community Councillor in Swansea.