“OUR current drug laws do not stop people from using drugs,” so said Scottish Government Drugs Minister Elena Whitham when launching the policy document promoting the decriminalisation of all personal possession of drugs.
At one level this is a statement of the obvious. However, for a governing politician at any level in Britain to make such a statement is quite a breakthrough.
For decades there has been a disconnect between mainstream political rhetoric and the reality of drug use in society. This covers both the significant minority in society who use recreational drugs – the last Office of National Statistics in England report in 2022 showed 16% of young people regularly used cannabis – and those who suffer from their dangerous drug addictions being treated as a criminal offence.
However now internationally new approaches have been adopted to drugs – as the Scottish report shows 30 countries have moved away from criminalising drug users. Indeed, the USA which created the “war on drugs” in the 70s has legalised cannabis use in 23 states over the last decade.
But the United Kingdom – to which the criminal statute the Misuse of Drugs Act 1971 is reserved – has been a bulwark of resistance to even the most minor reform. If anything subsequent British governments have moved in an opposite illogical direction.
The 71 Act model of criminalisation of drugs at one point had a logic to it. Government classified drugs on the basis of medical advice of an expert committee – the Advisory Council on the Misuse of Drugs (ACMD) – drugs were then categorised on the basis of the damage they did.
But this link was broken by New Labour in 2009 when Gordon Brown (below) ordered cannabis to be re-classified as a Class B drug despite ACMD saying it was Class C. Earlier this year Rishi Sunak stated his desire to classify Nitrous Oxide (laughing gas) as a C drug against ACMD advice.
So with UK governments ignoring scientific advice and having complete power over these classifications, the demand for decriminalisation of possession seems a forlorn hope. But is there anything the Scottish Government could do right now?
Well to some extent there has been some marginal movement already. Lord Advocate Wolfe announced way back in 2015 that personal possession of cannabis would be dealt with by the police and prosecutors issuing a “recorded warning”. He stated that this could amount to “de facto decriminalisation”.
Dorothy Bain, the current Lord Advocate, expanded this approach to Category A drugs in 2021. This still gives discretion to divert some cases into the criminal justice system but the default assumption is that a warning rather than criminal action would be the correct approach.
Scotland also has two Drug Courts which take a holistic approach to persistent criminals who have a drug addiction, which in a sense uses a public health ethos as a “drug treatment and testing order” can be issued rather than jail sentences. However, this can only help a very small number of cases.
Other radical approaches like drug consumption rooms would be difficult to operate under the current devolution system. To help someone to take drugs moves away from simple possession particularly if paraphernalia is provided to facilitate the drug use.
So, while the radical statements of the Government mark a real break with standard political rhetoric, a complete overhaul of our criminal justice approach to drugs would need equally radical change.
