Barrister and former government lawyer Carl Gardner writes about constitutional and public law, EU law and human rights. I’m a barrister, and worked as a government lawyer for twelve years, advising ministers and government departments on a wide range of public law issues from tax to terrorism, from freedom of information to pensions, from discrimination to health and from defence to..
You can be only be guilty of the section 7 offence if what you intend to supply actually is a psychoactive substance—and psychoactive substances are defined in section 2. There’s no dispute that nitrous oxide has psychoactive effects. The argument that has succeeded is that nitrous oxide is an exempt substance under section 2 because it’s a medicine, medicinal products being listed as exempt substances in Schedule 1 to the Act. Nitrous oxide is used for analgesia and anaesthesia, for instance in dentistry. Many of us will have “had gas” in the dentist’s chair. It’s lawfully sold under marketing authorisations granted under the Human Medicines Regulations 2012. For example a firm called Air Liquide has a marketing authorisation for nitrous oxide mixed with oxygen, which it sells under the name Equanox.
No judgments are publicly available, these cases having ended presumably after rulings by the judge in each case that there was no case for the defendant to answer. They must I think have concluded that nitrous oxide is in fact a medicine, and so as a matter of law exempt. That all seems straightforward … but actually, it’s not. It’s hard to know without seeing their reasoning, but I suspect the judges have gone astray. Here’s why I suspect that.
Any substance … which may be used in or administered to human beings either with a view to restoring, correcting or modifying physiological functions by exerting a pharmacological, immunological or metabolic action …
Notice that this definition is very broad. It’s much wider than simply products intended to treat disease, and potentially catches anything that pharmacologically modifies our body functions—like an anaesthetic. It also, if you think about it, catches many foods. The classic example I was given when I advised the UK medicines regulator was a banana. When a banana gives you a bit of a boost, then it’s pharmacologically or metabolically modified your physiological functions.
No one would seriously suggest regulating bananas as medicines, even thought strictly the definition may include them. But what if some extract of banana were found to actively cure an illness? Then, without any doubt, banana extract tablets marketed for treating the disease would rightly be treated as medicines. This example shows that the question whether or not to classify something as a medicinal product is not a “black and white” issue of what it contains or is made of. It’s actually a multi-factorial, contextual question requiring a bit of judgement. Paradoxical as it seems, one and the same substance may be a medicine in some circumstances, and not in others.
The Court of Appeal had to look at one example of this sort of thing last year in the Blue Bio case, a judicial review against the UK medicines regulator, the MHRA, about glucosamine-containing products or GCPs (glucosamine is something extracted from shellfish, and can be used to treat osteoarthritis). At para. 19, the Court of Appeal explained that
The existence of a significant pharmacological or metabolic effect on the body is not the only criterion that justifies a classification of a product as a medicinal product: it must be considered in the round. Thus the MHRA will consider the familiarity that consumers have with the product as a non-medicinal substance and the manner in which it is actually used. These factors assume particular significance in the case of substances that have both a medicinal and a non-medicinal use. Examples of such products are: salt, ascorbic acid, alcohol, caffeine and even water.
The court quashed the MHRA’s decision to treat some GCPs as medicines and others not. But this difference in classification of identical GCPs was unlawful only because the MHRA could not show that there was a significant difference in the way they were used. Para. 66 of the Court of Appeal’s judgment is key:
orally ingested GCPs whose active ingredient is glucosamine sulphate and which carry a recommended daily dose of 1500 mg share several significant characteristics with a product classified in the UK as a medicinal product; and in accordance with article 2.2 of the Medicinal Products Directive must be classified in the same way unless they have another significant characteristic which takes them outside the definition of “medicinal product”. That characteristic may well be the manner in which they are used, but it has not so far been demonstrated.
In principle, the MHRA approach of seeing use as potentially decisive was approved by the court, in line with various rulings over the years by the European Court of Justice. Glucosamine used to treat osteoarthritis is a medicine; glucosamine used only as a food supplement is not. The fact that the two things may be physically identical is not in itself decisive.
So the Blue Bio case alone shows us that laughing gas supplied by one person to another in Somerset or London as a recreational drug is not necessarily a medicine just because a canister of Air Liquide’s Equanox is.
to be interpreted as meaning that substances or combinations of substances within the meaning of that provision which merely modify — that is, do not restore or correct — human physiological functions are to be regarded as medicinal products only if they are of therapeutic benefit or at any rate bring about a modification of physiological functions along positive lines? Consequently, do substances or combinations of substances which are consumed solely for their — intoxication-inducing — psychoactive effects, and in the process also have an effect which at least poses a risk to health, fall under the definition of ‘medicinal product’ contained in the directive?’
The ECJ reiterates the multi-factorial approach to determining whether a product is a medicine (para. 42) before concluding in paras. 46 and 47 that
the substances at issue in the main proceedings are consumed not for therapeutic but purely for recreational purposes …
… such substances cannot be classified as ‘medicinal products’.
and ruling in the operative part of the judgment (para. 51)
Directive 2001/83/EC … on the Community code relating to medicinal products … must be interpreted as not covering substances … which produce effects that merely modify physiological functions but which are not such as to have any beneficial effects, either immediately or in the long term, on human health, are consumed solely to induce a state of intoxication and are, as such, harmful to human health.
Synthetic cannabinoids are not medicines as a matter of EU law, then, at least when used recreationally. Of course, if some synthetic cannabinoid actually had a therapeutic use—and who knows, perhaps one will be shown to have a clinical application one day—then it would be a medicine if supplied for the purposes of treatment. As we saw earlier, one and the same substance can be a medicine when used for such a purpose, but not when used non-therapeutically.
It follows that while nitrous oxide sold as Equinox for clinical use is a medicine, laughing gas consumed not for therapeutic but purely for recreational purposes and solely to induce a state of intoxication, to use the ECJ’s words, is not.
has the same meaning as in the Human Medicines Regulations 2012 (S.I. 2012/1916) (see regulation 2 of those Regulations).
Regulation 2 reproduces exactly the definition of a medicine in article 1.2 of the EU Directive, (page 13 in the pdf). It’s elementary law that UK courts need to interpret national implementing legislation, such as the Human Medicines Regulations, consistently with the EU Directive to which they give national effect. What’s a medicine under the Directive, therefore, is a medicine in the Human Medicines Regulations. Finally, because Schedule 2 of the Act defines medicinal products by reference to the Regulations, the same things are medicines under the Directive, the Regulations and the Act.
All medicinal products covered by the Directive—but only those covered by the Directive—are exempt under the Psychoactive Substances Act. If a substance does not fall within the Directive, it’s not exempt.
The D and G case told us that, as a matter of EU law, substances used purely for recreational intoxication are not covered by the Directive, it follows that laughing gas intended or used as a “high” cannot be an exempt medicinal product under the Psychoactive Substances Act. You can only think it so if you assume that because nitrous oxide can be a medicine, it always is; but that, as we’ve seen is the wrong legal approach. If it’s the basis of the rulings at Southwark and Taunton Crown Courts, then in my view those courts have erred in law.
The government published its latest “future partnership paper” today on “Enforcement and dispute resolution”, and most of the attention it’s gathered—and the government’s spin—has been about its “dispute resolution” aspect. In other words, what role the European Court of Justice may have in the UK’s future relations with the EU.
But I want to focus on the other bit—enforcement. I think the paper is at least ambiguous about the relationship it envisages between what we might call “post-EU law” and our domestic legal system. It’s a very interesting ambiguity.
Both the UK withdrawal agreement and any “future relationship agreements” between the UK and EU are likely to confer rights on UK and EU citizens and firms. Rights to trade, rights to work and so on. Enforcement is about how citizens and firms will be able to claim those rights in national courts, and get redress if their rights are denied.
Currently, EU law rights are enforced in UK courts partly through a concept called direct effect. This isn’t something laid down in EU treaties, but an idea invented by the European Court of Justice to ensure we can enforce EU law rights even, if need be, over the heads of governments and national laws. Direct effect means that, if the UK laws on equal pay don’t properly match EU equal pay law, for instance, you still get the full EU equal pay rights in your local employment tribunal, because you can rely on EU law directly. You are not able to enforce only the UK simulacrum of EU equal pay law; you can enforce EU law itself.
Ted Heath’s government knew all about the concept of direct effect, and it’s section 2(1) of the European Communities Act 1972 that brought the concept into our own law. The result is that EU law rights themselves are “recognised and available in” our own domestic law, and are “enforced” accordingly by our courts.
Direct effect is a unique EU law concept, though. An example of a treaty the UK abides by that does not use the concept of direct effect is the European Convention on Human Rights. Over the decades we’ve been bound by that treaty, the UK has given effect to it in two different ways.
In the 20th century, we simply complied with the ECHR as a matter of external, international law. There were lots of British laws that delivered your right to a fair trial, for instance, and of course you could use those laws in British courts. But what you couldn’t do was actually make arguments in a British court based on your ECHR right to a fair trial. You could do that, as it happened, by applying to the European Court of Human Rights but in a British court, all you had to rely on was the UK simulacrum or simulacra of the right. Let’s call this the “pre-HRA model”.
That changed in 2000 with the Human Rights Act, which (to simplify slightly) for the first time gave domestic legal effect to the ECHR rights themselves. Under the Human Rights Act, you can go to a court in Britain and rely on Convention rights in much the same way as you rely on EU law rights. The UK has, in other words, chosen voluntarily to incorporate Convention rights into its own national law in a way that’s similar to the direct effect of EU law. We can call this “the HRA model”.
Now, let’s turn to today’s “enforcement and dispute resolution” paper. Most observers are I think reading it as saying the UK intends to comply with future UK-EU relationship agreements using the pre-HRA model, simply enacting UK laws to give effect to whatever rights those agreements create, and allowing firms and citizens to go to court to enforce those UK laws. But is that what the paper actually says? I’m not sure it is.
The first key passage addressing this issue is in para. 17, which says:
When it implements these agreements in its domestic law, the UK will also as appropriate provide for an effective means for individuals to enforce rights under the agreements, and challenge decisions of the competent authorities concerning those rights.
The literal meaning of para. 17 is that it’s rights under the agreements that will be enforceable in our courts; not simply the UK simulacra of those rights.
The second key passage is in para. 22, which says:
where the Withdrawal Agreement or future relationship agreements between the UK and the EU are intended to give rise to rights or obligations for individuals and businesses operating within the UK then, where appropriate, these will be given effect in UK law. Those rights or obligations will be enforced by the UK courts and ultimately by the UK Supreme Court. UK individuals and businesses operating within the EU should similarly be provided with means to enforce their rights and obligations within the EU’s legal order and through the courts of the remaining 27 Member States.
Again, the plain meaning of this is that it’s those rights or obligations in the WA and “FRAs” that will be enforced in national courts; not simply the UK laws reflecting them.
If the reading I’m suggesting is right, then ministers may have in mind something like the HRA model: a unilateral UK choice to incorporate “future relationship rights” into our legal system in such a way that individuals and firms can rely on them directly in UK courts, in much the same way as they can rely on EU law and Convention rights now.
It would be both inappropriate and unnecessary for the agreement to require the UK to bring the EU concept of direct effect into its domestic law. The same substantive result can be achieved if the Withdrawal Agreement requires the UK to give citizens specified rights, and the UK enacts domestic legislation whose effect is to bestow those rights.
This seems on its face to be describing a pre-HRA model. But wait. Strictly speaking, all it’s rejecting is the EU law concept of direct effect, which obviously won’t apply if we’re out of the EU. It may not be rejecting something similar, but of purely domestic origin. Look for instance at para. 9:
The EU Treaties are unique in requiring parties to implement them by incorporating the concept of direct effect into their domestic legal orders. That concept is specific to EU law, and reflects the fact that the Treaties have created their own legal system which forms an integral part of the legal systems of the Member States. The principle will therefore cease to apply to the UK when it ceases to be a Member State, and it would be inapt to require the UK to maintain it in its domestic law when it is no longer part of the legal order of which direct effect is a corollary.
All this is saying is that the EU law concept of direct effect won’t have any place in UK law. That’s uncontroversial, and compatible with either the pre-HRA or the HRA model.
Para. 11 intriguingly refers to “domestic concepts”, a funny phrase to use if all you mean is workaday British legislation:
There is nothing in principle to prevent the UK from implementing [a requirement in the withdrawal agreement] using domestic concepts, as long as those concepts are sufficient to achieve the result required by the agreement.
Para. 12 innocently explains that
There is nothing unusual in the idea that international agreements should be implemented by different parties in different ways. It is normal for agreements between the EU and third countries to be implemented in different ways in the internal legal orders of the EU and the third countries, even if the obligations are expressed in reciprocal terms.
but introduces footnote 6, which makes specific reference to the EEA agreement, saying:
the EEA Agreement does not require the non-EU States to implement it using the concept of direct effect … They may choose to implement it using a domestic concept that has the same consequences as direct effect, but that is their decision …
which would be a domestic concept very like the HRA model.
Perhaps I’m wrong. Perhaps all the lawyers, civil servants and DExEU ministers who’ve worked on and cleared these papers are of one mind, and envisage implementing the withdrawal agreement and future relationship agreements using the pre-HRA model.
But that would make paras. 17 and 22 of today’s “enforcement and dispute resolution” paper misleading, read literally; and it would be unfortunate if DExEU had ended up allowing a former government lawyer like me to see at least ambiguity in its drafting. I suspect the ambiguity is real, and may reflect disagreement and uncertainty about what UK implementation will look like.
If people in Whitehall do have the HRA model in mind, it’s a model some of them may be learning belatedly to love.
The previous Thursday, the 8th, the day the government had survived a vote of confidence in the House of Commons. Eden had ordered a ceasefire from midnight on November 6-7. Ten days after this letter was sent, the Prime Minister went to Jamaica to rest; he resigned in January 1957.
The Attorney’s concern was the legal position and his own.
The Lord Chancellor, I gather, expressed the view in Cabinet that our threat and our use of force was legally justified.
He mentions that Kilmuir said so in the House of Lords on November 1st, just as Selwyn Lloyd had the day before and as R.A. Butler did the same day, in the Commons. He went on:
Although I support what we have done and have said so publicly, we cannot, as you know, agree with the statements made on behalf of the Government that we were legally entitled so to act.
It seems extraordinary now that an Attorney General could support a policy of force in spite of thinking it unlawful. Perhaps the Attorney’s political support for the invasion in spite of its unlawfulness explains why he did not resign over the affair. He certainly knew he’d been compromised:
… it is very questionable if it is proper for Law Officers to continue to hold office if, on an issue of this importance, it is sought to justify the Government’s actions on legal grounds which they cannot support. If this occurred again, I feel I must frankly say that I think the position of the Law Officers would become impossible.
The chances of any such thing occurring again were vanishingly small, of course, and the warning was too little, too late. Was it worth making at all, by then?
Sir Reginald remained Attorney General until 1962, when (after Macmillan’s “Night of the Long Knives”) he replaced Lord Kilmuir as Lord Chancellor. He held that post until Labour won the 1964 election. He then sat as a Law Lord from 1969 till just before his death in 1980.
From the Attorney General’s 1956 Suez file I’m today reproducing (with permission of the image library of the National Archives) a letter dated November 6 1956 to the Attorney General, Sir Reginald Manningham-Buller, from the Foreign Office Legal Adviser Sir Gerald Fitzmaurice; and the Attorney General’s reply of the following day.
Fitzmaurice tells the Attorney that he’d been asked by Foreign Secretary Selwyn Lloyd to comment on a letter from the Attorney (which must be his letter of November 1).
Apart from saying that the views of the legal advisers here entirely coincided with yours as to the absence of any legal justification for our present actions in Egypt,
the comments I made related mainly to the constitutional position.
The extracts he then repeats to the Attorney show him stressing to the Foreign Secretary that the Law Officers, not the Lord Chancellor, are the government’s legal advisers.
As I understand it, the Lord Chancellor is not invested with any actual function of this kind …
It is the Law Officers—i.e. the Attorney and Solicitor General—who are the highest legal authority in government, he says.
The Law Officers therefore have an absolutely unanswerable case over not having been consulted.
The Attorney’s answer is short and approving.
Sir Gerald Fitzmaurice later became a judge at the International Court of Justice, and at the European Court of Human Rights.
Lord McNair was a professor of law at Cambridge. He had served as President of the International Court of Justice until the previous year, and so was obviously one of the leading international lawyers of the day. He went on to be President of the European Court of Human Rights from 1959.
McNair had spoken in the House of Lords in September, making clear his view that Egypt’s nationalisation of the Suez canal would not justify force, having regard to the Kellogg-Briand Pact and the UN Charter. What’s striking about that speech is that not only makes the case repeated later by the Attorney General (who doubtless knew of and was influenced by McNair’s view) but that McNair dismisses Sir Austen Chamberlain’s “British Monroe Doctrine”— a doctrine Lord Kilmuir later seize on in the legal argument he made.
for the view that when two States are engaged in fighting and their hostilities may cause injury to the nationals or the property of a neutral State, the Neutral State has a right to intervene by armed force.
As far as the UN is concerned (para. 4)
So far from seeking authority for our armed intervention, we presented the United Nations with a fait accompli, and we concealed our intentions from them
McNair dismisses Kilmuir’s reliance on the Caroline incident (para. 5) before writing
I come now to what you appear to regard as the main justification of our intervention, namely, self-defence. I consider that you adopt an unduly wide conception of this term …
Ultimately, McNair writes,
My general conclusion is that our intervention is illegal.
Politely phrased though it is, this letter reads, as no doubt it was intended, as a slap-down by an eminent international lawyer of arguments he clearly saw as both weak and self-serving.
McNair didn’t say he was copying his letter to the Attorney General; I don’t know how a copy found its way into the Attorney’s file.
Today’s document from the Attorney General’s 1956 Suez file (reproduced with permission of the image library of the National Archives) is a letter from the Attorney General to R. A. Butler dated November 1 1956 suggesting a non-legal justification for intervention to be used in the Commons (Butler was to wind up a debate on the situation for the government that evening) while making it clear the Attorney sees no possible legal defence of it.
The Attorney, undoubtedly responding to the line about to be taken by Lord Kilmuir in the House of Lords on the same day, doubts there was any threat to the lives of British nationals such as to justify the use of force.
I am not aware that any threat to our nationals came from Egypt …
He goes on
I would thus seek to justify our action not under … international law but on the ground of expediency … and in conformity with the intentions underlying the Charter …
He expresses concern that MPs will demand to know his view on the legal position.
If that demand is made, I shall be in a position of acute difficulty for I cannot really advance any legal justification for our action.
His reference to a legal memo must I think be to the one sent to the Lord Chancellor on October 31.
Butler’s speech later perhaps rather cleverly focused at first on the question of whether there was in law a state of armed conflict, rather than on the question of whether Britain’s use of force was lawful. What he said later also shows the Attorney’s influence: he talks of the spirit and intention of the Charter and defends Britain’s motives in more or less the terms the Attorney suggested.
The next document I’m reproducing from the Attorney General’s 1956 Suez file (with permission of the image library of the National Archives) is a letter from the Attorney General to the Foreign Secretary Selwyn Lloyd dated November 1 1956—and copied to Prime Minister Eden—expressing concern about government statements on the legal justification for action in Suez, and making clear the Law Officers’ view that action was unlawful.
The Attorney writes
I am troubled about the legal basis for the action … and I am worried about the consequences for Her Majesty’s Government should it become known that the Law Officers are not able to support the main legal contentions so far advanced.
It’s clear from the letter that the Attorney had been “kept out of the loop” as we’d say nowadays, about the ultimatum issued to Egypt two days before. He says
on what is known to me, I am unable to devise any argument which could purport to justify in international law either our demand … [that Egypt withdraw its forces from the canal zone] or the threat to occupy her territory by armed forces should she fail to acceded to that demand.
The Attorney’s frustration is clear:
I feel compelled to write this letter because … it will generally be assumed that we have been approached for advice as to the legality of what has been done. In fact we were not consulted …
The reader in 2016 wonders why he felt so unable to impose his legal view on his ministerial colleagues—and why he remained in his position.
Kilmuir thanks the Attorney for his memo, but says
I cannot agree with all your conclusions. I have therefore enlarged it to cover my views and send a copy for the consideration of the Solicitor General and yourself.
He seems to mean he’s rewritten the Attorney’s memo to reflect his, opposite, view.
In his memorandum Kilmuir argues first (paragraph 3) that the Kellogg-Briand Pact permits resort to war in self-defence and to enforce international obligations.
The nub of the question
he says (in the erroneously numbered second paragraph “3”)
is what is covered by self-defence to-day.
Kilmuir argues (para. 4) that force may be used in self-defence if a state’s rights are illegally and forcibly denied and no other remedy is available; he also argues for pre-emptive self-defence.
Kilmuir accepts that Egypt had neither used nor threatened force in breach of international law but argues (para. 7) that
It cannot be right, or good international law, that international territory could be annexed by invasion and that the countries affected are powerless to act if the use of the veto has prevented the Security Council directing any method for righting the wrong.
At para. 8, Kilmuir argues that the international character of the Suez canal was admitted by Egypt in the 1888 Convention of Constantinople—but someone at the Attorney General’s chambers points out in a handwritten marginal note that Egypt was not a party to that agreement. Those notes are in fact one of the main points of interest in the document, showing that Kilmuir’s view was met with deep legal scepticism in the Attorney’s team.
Kilmuir’s argument concludes by comparing Nasser’s behaviour to Hitler’s over the Rhineland:
Just as the Rhineland was re-militarised, the Canal was de-internationalised. Egypt … has been guilty of a crime of aggression … If Egypt refuses to restore [the canal’s international] character, then the nations affected can use force to defend it.
With permission of the image library of the National Archives, here are the first two documents I’m reproducing from the Attorney General’s 1956 Suez file: a letter from the Attorney, Sir Reginald Manningham-Buller to the Lord Chancellor, Lord Kilmuir (better known to many as Sir David Maxwell-Fyfe, as he was before he became a peer) dated October 12 1956 and a manuscript draft of a memorandum setting out the Law Officers’ legal view.
First, the letter, sent to the Lord Chancellor at the Conservative conference in Llandudno. At this time, diplomatic efforts were going on. The USSR was about to veto an Anglo-French draft resolution at the UN on the 13th, and the government was preparing invasion plans. The Prime Minister was to say in his conference speech
we have always said that with us force is the last resort, but it cannot be excluded. Therefore, we have refused to say that in no circumstances would we ever use force. No responsible Government could ever give such a pledge.
The Attorney explains that the memorandum represents his view and that of the Solicitor General (“Harry”—Sir Harry Hylton-Foster). The Attorney says somewhat beseechingly
I do hope you will agree with it for I feel under some obligation to inform the Prime Minister of the views of the Law Officers pretty soon.
But he refers to discussions with the Lord Chancellor in earlier meetings, so must have known Kilmuir’s agreement would be unlikely.
We do not think
the Attorney writes, that the seizure of the Suez Canal Company’s property in Egypt
would now justify the use of force by us. It would now be most difficult, if not impossible, to establish that such use of force by us came within the doctrine of self-defence. Even if a case could be made for regarding Nasser as an aggressor we should not in consequence be justified in using or threatening force …
The letter outlines the “most attractive” way the Attorney thinks force could be justified but makes clear that
We do not think this argument is sound.
To see the document in full screen view click on the “four arrows” box at the bottom left hand of the viewer; you’ll also find there a link to the original pdf version of the letter.
I couldn’t find on file at Kew a typed version of the memorandum referred to in the letter. But I did find an undated manuscript draft which must represent the substance of what was sent to Lord Kilmuir. If you’re unable to read the handwriting, click on the “text” box, where you’ll see my transcript.
Resort to war, the Law Officers argue in the draft memo, is ruled out by the Kellogg-Briand pact, which outlawed war as an instrument of national policy. They’re unpersuaded that fighting to restore the Suez canal to multilateral control was a matter of international rather than national policy. Any threat of force, even short of war, cannot be justified under the UN Charter, they write, since there has been no armed attack by Egypt, nor even any illegal forcible denial of the UK’s rights.
President Nasser does not appear to us to have used or threatened force which would justify the threat or use of force in self defence.