Drugs policy is broken, but does Scotland have the power to change it?

Last week, the UK Government proved ­itself characteristically incurious about these questions – or the merits of ­looking again at Britain’s dysfunctional drugs ­policy. Without pause for thought, the ­Scottish Government’s proposals – which are detailed, specific and set out ­productive ideas for improving the law – were dismissed with tired slogans about being “tough on drugs” and against “soft-touch justice”. Scottish Tories began ­girning about “constitutional grievance”.

Keir Starmer’s team, unstunningly, ­followed the same political line. Beyond catchphrases about crackdowns and zero tolerance, drugs reform doesn’t feature on the Labour leader’s media grid.

Sticking with the never-ending, costly and unwinnable war on drugs is – ­ridiculously – the politically safe choice for a Labour leader with both eyes on the next General Election.

But for activists and politicians looking to make change in Scotland – including ­Labour MSPs who’ve been active on this issue – the legal framework we’re dealing with is at once simple, and not so simple.

First, the devolution basics. The Scotland Act says MSPs can’t pass legislation which “relates to reserved matters”. Schedule five lists all the matters which are reserved to Westminster, from the defence of the realm to monetary policy.

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If an issue isn’t on the reserved list, then it is devolved. This leaves Holyrood with law-making power over great swathes of ­social policy, from education and the ­environment to health policy and criminal justice.

Among the list of reserved matters, we find the Misuse of Drugs Act 1971. But, but, but – we also have a distinct prosecution system in Scotland, with in-built discretion for the Lord Advocate to consider whether and how criminal offences are prosecuted in Scottish courts.

There’s another – often overlooked – ­factor to throw into the mix. You might think the Misuse of Drugs Act was etched into tablets of stone – but it is among the worst-written pieces of legislation on the British statute book.

Cobbled together in the 1970s, it has been amended in a haphazard and ­incoherent way ever since. The ­inclusion and exclusion criteria have been ­consistently politicised by ­successive home secretaries, ­often with scant ­regard for the underlying ­science about the risks associated with particular drugs.

What we’re left with is an Act which is weirdly specific in its regulation of niche Victorian drugs practices – and ­surprisingly vague on whether other ­behaviour falls inside or outside the law. For example, there’s a specific ­prohibition on “frequenting a place used for the ­purpose of opium smoking” in there – a disincentive to lotus eaters everywhere, I’m sure.

But the Act isn’t clear whether ­running a mobile drug consumption facility – like activist Peter Krykant did in ­central ­Glasgow for a number of months – ­constitutes a crime.

Campaigner Peter Krykant in his safe consumption van

Providing basic furnishing, cover and sanitation might not strike you as the crime of the century – but it could ­theoretically fall under “supplying an ­article used in the administration of a controlled drug”, which is an offence with a six-month prison term attached. With drugs law reform, we’re dealing not only with grey areas in devolution but also grey areas in the Misuse of Drugs Act.

This mess of factors is difficult to ­untangle – but a few basic facts can be ­synthesised. First, the Scottish ­Government can invest whatever it wants in drugs recovery and addiction programmes. Any legal change is adjectival to investment.

Second, MSPs can’t change or repeal the Misuse of Drugs Act – but in theory, there is considerable room for ­manoeuvre in how the legislation is applied by ­the Scottish criminal justice system. Getting change out of the criminal justice system isn’t impossible but it isn’t necessarily straightforward either.

The key actor with scope to have system-wide impact – the Lord Advocate – keeps her own counsel and takes decisions on prosecution policy independently of the Scottish Government.

The last Lord Advocate wouldn’t budge on proposals for supervised drug consumption rooms, producing a range of explanations and excuses for why he wouldn’t sign off the plan. Just over two years since she was appointed, it still isn’t clear where his successor Dorothy Bain KC stands on this issue.

Mixed messages are coming out of the Crown Office. In June 2021, prompted in part by a parliamentary debate on the drugs death crisis, Bain appeared before MSPs to announce she was revising prosecution policy on recorded police warnings.

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As Lord Advocate, she has power to ­direct Scottish prosecutors in their decision-making about who should and should not be prosecuted. She also has the authority to direct the police on how they handle cases.

Before this intervention, Crown ­Office guidelines allowed constables to warn off anyone caught in simple possession of Class B or C drugs – cannabis or ­benzos, for example. Bain extended the scheme to simple ­possession of Class A drugs, meaning ­users could be issued with a recorded warning instead.

READING the Misuse of Drugs Act, this isn’t how you’d imagine drug possession would be sanctioned. In law, marijuana possession carries a maximum two-year sentence. Being caught with a single ­ecstasy tablet in your handbag could get you seven years behind bars.

Does anyone honestly believe that these sentences are proportionate? ­Nobody seems to be squealing about the fact that these legal guidelines are routinely ­ignored and parts of the community are getting wasted with cheerful impunity. Why keep criminal laws that nobody seems to believe should be enforced?

Just look inside parliament for proof. Scores of mainstream politicians – ­including members of the UK Cabinet – have admitted possession of illegal drugs. Members of the UK Cabinet have admitted using Class A drugs “on several ­occasions”.

If Rishi Sunak thinks these supposedly “tough” drugs laws aren’t right for his cabinet colleagues, why are they right for students going clubbing, bored teenagers or the scores of middle-class ­professionals blending their atoms with Class A ­substances on a routine basis?

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In December 2021, Bain told ­Holyrood’s Justice Committee that “in terms of the undoubted crisis that we face in relation to the number of drugs deaths in Scotland, if it is in the public interest that there should be no prosecutions for those using drug consumption facilities with all these safeguards that require to be in place, then that would require a fresh consideration by me as Lord ­Advocate”.

Recently, however, there are signs that the Lord Advocate doesn’t take so ­kindly to this kind of political invitation to think about prosecution policy. Just last week, she fired off an Exocet email to a ­Holyrood committee which didn’t attract the coverage it merited. The Education, Children and Young People Committee had the temerity to suggest that when the guidelines on prosecuting children are revisited, “careful consideration” should be given “to how the views of the child ­or young person are factored into the ­Procurator Fiscal’s decision-making process”.

This tepid recommendation got a ­nuclear response from the chief public prosecutor, asserting that it was “inappropriate” and claiming it strikes at the ­constitutional principle of prosecutorial independence for a parliamentary committee – “or any other person” – to “seek to influence the content of prosecution policy”.

This is an astonishing overstatement of the true position. The idea that the Crown Office has dreamed up guidelines on ­everything from how domestic abuse cases to racist crime and sexual abuse should be handled is not only untrue. It would be bad if it was true.

Prosecutors jealously guarding their ­independence is a good thing. Overstating that independence is not. But this outlook isn’t exactly encouraging news for folk sympathetic to drugs reform and faced with UK Government recalcitrance, ­pinning their hopes on the Lord Advocate.

Let’s give her the benefit of the doubt. In January 2022, Angela Constance ­announced that plans pulled together years ago by local government and health authorities in Glasgow would be sent back to the new Lord Advocate.

Nothing has been heard of this ­proposal for months – though the ­document ­published by the Scottish Government last week indicates that “a request for a statement of prosecution policy is ­currently being considered by the Lord Advocate as part of a proposal to ­establish a safer drug consumption facility in ­Glasgow within the existing legal framework”.

If Dorothy Bain plays ball, then in practice, the Scottish Government can achieve much of what it set out last week within the devolution settlement. But it’s a big “if”.