When stars align

Sunday National, 28th November 2021.

“I’m not going to oppose a pilot if that’s what the Scottish Government bring forward and I don’t think the UK Government should either.” It was one of the more startling political conversions of last week.

On Monday, Nicola Sturgeon and Douglas Ross visited the Bluevale Community Centre in Glasgow. As a primer for this visit, Ross announced that he no longer opposes the Scottish Government opening a pilot drug consumption facility to test the efficacy of such a facility. Ross has changed his tune. Just a few years ago, the Moray MP suggested we should arrest our way out of the drugs death crisis, arguing what we need is to “enforcing the law properly, not soft-touch sentencing and back-door decriminalisation.”

Ross previously characterised drug consumption rooms in the House of Commons as “actively setting up these places where drug possession and consumption are condoned” arguing they amounted to “selective decriminalisation.” It is an attitude shared by UK ministers, who have spent the best part of a decade turning a deaf ear to doctors, public health workers, campaigners, and politicians across the political spectrum, arguing that we need harm reduction measures, and we need them now. 1,339 people in Scotland died of drug misuse last year, three times the number of ten years ago.

The polls suggest the Tory leader isn’t alone in changing his mind. A Panelbase poll for the Sunday Times found that just under half of Scots support the Scottish Government’s DCR policy, with just 29 per cent now opposing it.

We shouldn’t overlook what a dramatic reversal this is in public opinion, departing from decades of ineffective rhetoric on substance abuse.  A range of people deserve serious credit for this shift in attitudes. At considerable personal cost, activists like Peter Krykant put a sympathetic human face on the good harm reduction can do. From his Parnie Street van, Peter showed the sky won’t fall in if we compromise with reality, if we recognise addiction as a social fact, and do our best to ensure addicts don’t die. This is what a tough drugs policy really looks like.

But the Panelbase survey suggests some continuing ambivalences in public attitudes, particularly to possession of Class A drugs. The pollster found 76% of respondents thought people found in possession of heroin should be routinely referred for the prosecuting authorities. How you reconcile these two beliefs is a question for the philosophers.

The findings of the poll neatly encapsulate the difficult spot the Tories find themselves in. When it comes to drugs, the Scottish Tories continue to careen all over the policy map. When the new Lord Advocate came to parliament in September to explain why she had authorised the use of police warnings and diversion from prosecution for people caught in possession of Class A drugs, the party took to Twitter to claim “the SNP have weakened laws on the possession of the most deadly drugs” describing the Lord Advocate’s direction as “a dangerous decision that will benefit drug dealers and make it more difficult for police officers to stop the supply of Class A drugs.”

This was crassly dishonest in at least three important ways. Firstly, as the Tories well-understand, this wasn’t an SNP decision, but one for Dorothy Bain alone in her capacity as an independent prosecutor, tasked with prosecuting in the public interest. The fact that the Lord Advocate gets the last word on this issue may be a frustration both to supporters and opponents of comprehensive drugs law reform – but this is where the constitution leaves us.

With the Misuse of Drugs Act being a reserved matter under the Scotland Act, and Westminster government showing no signs of willingness to change that – Scottish prosecutors showing a more enlightened attitude to how drugs laws are enforced is the only constructive way forward.

Secondly, the Tory statement implies that there would be any let-up in the prosecution of people caught producing or supply drugs under the new policy. This is a flat-out falsehood, as the party spinners must know. Bain was at pains to stress in her statement that the policy of warnings and diversions would extend to simple possession offences only.

And thirdly, if Ross has persuaded himself that we should give safer drug consumption facilities a try – how does he imagine these are going to work if the police station themselves at the front door, and arrest everyone they reasonably suspect is in possession of heroin?

Everything about Ross’s leadership of the Tories in Scotland suggests he is a politician at his most comfortable when he is talking to his political base, happy to park the bus on the party’s existing support. That makes this week’s apparent departure from orthodoxy interesting. In the end, he’ll have to choose.

Either you’re truly open minded about how we tackle the murderous toll of drugs in this country – or you’re not. Either you take the opportunity to persuade your – perhaps sceptical – supporters why harm reduction measures should be given an opportunity to win their spurs, or you continue to pump out the old slogans about crackdowns, zero tolerance, and law and order. Remarkably, Ross now appears to have decided to do both simultaneously.

For years, debate on this desperately needed intervention has been stymied by a blizzard of legal objections, few of which really bear much scrutiny. One of the curiosities of safer drug consumptions facilties is that it isn’t obvious how precisely they would be illegal under the Misuse of Drugs Act 1971 – whether they took the form of a facility based in a building, or a mobile fleet. The 1971 Act includes a bunch of offences, from possession, supply and production of controlled drugs. But the legislation is also full of grey areas.

The one thing we can be clear about: service users would certainly be breaking the last as it stands. It isn’t a crime in the UK to take drugs, but to possess them. The concept of a DCR will only work if police are given a clear steer to leave service users alone. But beyond that, nobody – not even the Home Office – has set out a convincing explanation of what offences they think people running and administering a DCR would be committing.

These facilities wouldn’t be supplying any controlled substances. Only the most strained interpretation of the law allows you to characterise these activities as the “production” of drugs. Yes, section 9A of the legislation prohibits the supply of “articles for administering or preparing controlled drugs” – but this doesn’t extend to provision of clean hypodermic needles. If the DCR provided tourniquets, for example, they may find themselves falling foul of this provision, but characterising a clean table and chair cannot credible be characterised in the same way.

Yes, the 1971 Act says that occupiers of premises can be punished if they allow opium or cannabis to be smoked on their premises – but says nothing about supervising people injecting heroin or cocaine on site. This might strike you as a strange distinction for the law to make – but the 1971 Act is old and full of holes. If the Home Office are going to dole out threats and menaces, they’re going to have to do a whole lot better than “this seems the kind of thing which seems illegal.”

The good news is, key actors in Scottish law and politics are increasingly clear about the limits – and the opportunities of this legal framework. The Scottish Government have been pro-active behind the scenes, probing the limits and weaknesses of the drugs framework as it stands to identify potential workarounds, even if that means creative compliance with the 1971 Act and the devolution framework.

But perhaps most importantly of all, the new Lord Advocate Dorothy Bain is already demonstrating much less squeamishness about confronting the realities of drug abuse than her predecessor. This month, she told Holyrood’s Criminal Justice Committee that she is open to the “fresh consideration” of any DCR proposal which is “precise, detailed, specific and underpinned by evidence.”

The Scottish Government has just published a formidable paper, marshalling just this kind of evidence, showing that there are already more than 100 such facilities operating in at least 66 cities around the world from Switzerland and Germany, to Australia and Canada.

Too late, far too long in the making – the stars finally seem to be aligning for DCRs.

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