The Times, 8th July 2023.
With devolution, everything has the potential to become a constitutional row. The basic principles of the Scotland Act are simple but in some areas the line between devolved and reserved matters becomes decidedly blurred.
Sometimes MSPs criticise the Scottish government for pushing the boundaries of devolution. Sometimes the same politicians push them to do so. Drug policy is a classic case.
Under the Scotland Act, Holyrood cannot pass legislation which “relates to reserved matters”. Schedule 5 lists everything the Scottish parliament cannot do, from legislating on monetary policy to the defence of the realm. Anything not on this list falls within Holyrood’s legislative competence.
Simple? Not really. The Misuse of Drugs Act 1971 is reserved to Westminster – but health and criminal justice are broadly devolved. The Misuse of Drugs Act is also badly drafted and full of holes. This UK legislation sets out detailed prohibitions on smoking opium, but leaves it unclear whether and how running a safer drug consumption facility constitutes a crime.
That’s just the laws on the books. Enforcement is another matter. As the head of the Crown Office and
Procurator Fiscal Service, the lord advocate can issue working guidelines not only to her prosecutors, but also to Police Scotland about how the criminal law should be enforced.
This authority cuts across reserved and devolved crime. In June 2021 the lord advocate, Dorothy Bain KC, announced the extension of recorded police warnings from class B and C drugs to class A possession, allowing problem drug users to be diverted from prosecution while leaving the legal prohibition on the possession of heroin and cocaine untouched.
In the 1990s, NHS and local government needle exchanges received another letter of comfort from the chief public prosecutor, confirming that medics giving clean needles to intravenous drug users were not at risk of prosecution for culpable and reckless conduct.
However, the lord advocate exercises this policy independent of government. Although Bain has made some potentially supportive noises about reconsidering her predecessor’s conservative attitude to new proposals for safer drug consumption facilities in Glasgow, nothing has come of them so far.
One thing is clear: Holyrood cannot unilaterally amend the 1971 act and decriminalise drug possession. MSPs can consider other reforms, striking at how the act is enforced north of the border.
MSPs could consider introducing a presumption against the prosecution of petty offenders whose offending is driven by addiction issues. This would not scrape drug laws off the books, but help structure prosecutorial discretion.
Another idea might be to beef up and formalise the lord advocate’s powers to give conditional immunity from prosecution to facilities such as safer drug consumption rooms, service users and staff.
The law already sets out ways in which she can grant conditional immunity from prosecution but this framework is designed for informants who turn King’s evidence, testifying against their former accomplices, not for facilities underpinned by a public health purpose, operating in legal grey areas. And the Misuse of Drugs Act 1971 can be very grey indeed.
Andrew Tickell 