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