Today at the High Court proceedings were initiated against the Home
Secretary for her abdication of power under the Misuse of Drugs Act
1971 with respect to alcohol and tobacco control. The case, brought by
the imprisoned ‘cognitive liberty’ advocate, US citizen Casey William
Hardison, sets out the Home Secretary's legal duty to consult the
Advisory Council on the Misuse of Drugs on the possibility of bringing
drinkers and smokers under the protection and control of the Act.

Currently, drinkers and smokers are accorded special status by
government through the mistaken belief that alcohol and tobacco are
‘legal drugs’ exempted from the operation of the Act. This error of
law then leads the Home Secretary to another false notion: that the
Act is 'not a suitable mechanism for regulating alcohol and tobacco
[users]'.

The Misuse of Drugs Act says government must apply relevant criteria
concerning social harm to their decision making process; yet the Home
Secretary has allowed irrelevant criteria to impact her decision not
to consult the Advisory Council and the policy that excludes alcohol
and tobacco from the Act, citing ‘historic and cultural precedents’
whilst asserting that 'alcohol and tobacco are embedded in society and
their responsible use is possible and commonplace'. This has led the
government to instead institute a separate system for regulating users
of the drugs alcohol and tobacco.

However the artificial divide between drugs defined as ‘controlled’
under the Act, and so-called ‘legal’ drugs is arbitrary and alleged to
be illegal. It favours the misuse of alcohol and tobacco relative to
any use of any controlled drug – a poisoned chalice not provided for
by the Act. The current policy is biased in favour of consumers of
these socially-problematic products, and ignorant of statutory duty.

The classification of alcohol and tobacco alongside other dangerous
drugs does not equate to prohibition; concerns about this are grounded
in the Home Secretary's mistaken belief that the Act is a blunt
instrument intended to ‘prohibit' drugs rather than regulate people so
as to reduce harm from the misuse of drugs. But It can be shown that
the law is a well-crafted and intricate tool for the regulation of
persons likely to misuse any dangerous drug, and can easily provide a
framework to permit the responsible production, supply and use of
alcohol and tobacco from within the Act itself, exactly as intended by
the parliamentarians who drafted it.

The decision under challenge is the Home Secretary's refusal to
consult the ACMD on the 'possibility' of bringing alcohol and tobacco
users under the Act's control. This refusal is based on persistent
misunderstandings of the Act, its structure, function and purpose; and
also on taking irrelevant factors into account and disregarding
relevant factors. The Home Secretary's overly rigid policy has
prevented the consideration of even the merits of the possibility.