DRUG use and abuse are Scotland’s shame, a fact acknowledged by First Minister Nicola Sturgeon during the recent Scottish election campaign.

Appallingly, Scotland has the highest number of drug-related deaths in Europe. In 2020 there were 1339 drug deaths – an increase of 75 from the 1264 recorded the previous year. The drugs-related death rate in Scotland is three-and-a-half times higher than in England and Wales.

So it is clear that the current “war on drugs” prosecuted under the infamous and ineffective Misuse of Drugs Act 1971 is long lost and that a completely new approach is needed.

The present policy of criminalisation merely deprives addicts of treatment and quality-controlled drugs to take and creates an endless source of revenue for criminal gangs. Where there is demand there will always be supply, and ever since 1920s America we have known that prohibition fails in every respect except the promotion of organised crime.

The SNP has an official policy in favour of decriminalising the possession and consumption of controlled drugs and moving to a public health approach. In the past, the SNP government has not pursed this policy in a consistent way, but under the new drugs policy minister Angela Constance there are welcome signs of a more proactive policy in this area.

In 2019 a report by the Scottish Affairs Select Committee Inquiry into Problem Drug Use in Scotland 2019 recommended the move to away from criminalisation, but this was rejected by the Westminster government, although a tiny number of licences for medical cannabis has been granted.

The brave Peter Krykant has run an overdose prevention service, also known as a drug consumption room, from a converted bus in Glasgow city centre despite the threat of prosecution. This service allows people to take their own drugs under supervision of trained professionals who can intervene in the event of an overdose and provides a sterile area with clean equipment to reduce infections and the spread of blood-borne viruses, such as HIV, of which Glasgow is experiencing its worst outbreak in 30 years.

Last May marked 50 years since the passing of the Misuse of Drugs Act 1971 and to mark that anniversary on Thursday the House of Commons held a short, but important, cross-party debate on the abject failure of that legislation.

As explained by the Labour MP Jeff Smith: “The 1971 Act was intended to prevent the use of controlled drugs, eliminate illegal drug markets and reduce the harms of drug use; it is not working. The data suggests that in 1971 there were fewer than 100 drug-related deaths in England and Wales. In 2019, drug-related deaths in England and Wales rose for the eighth year in a row to 4393. There has been a 52% increase in drug- related deaths over the past 10 years, and 2883 deaths resulted directly from drug misuse. These people mattered and many of their deaths were preventable. If there were better laws and properly funded treatment services, many could still be with us today.”

SNP MP Tommy Sheppard joined in the cross-party denunciation of the Misuse of Drugs Act 1971.

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IN a blistering speech he remarked: “I wonder what it says about our ability to function as a body that makes and reviews legislation that such a significant piece of legislation, dealing with such a major social problem, can lie on the statute book for 50 years without review or amendment. That is all the more incredible when we consider that by any conceivable measure it has been an abject failure in trying to achieve what it set out to achieve. As we have heard, back in 1971 just 1% of the British population said that they used the drugs that the Act would go on to criminalise, whereas today the figure is 34%. We are facing the biggest social policy catastrophe of our generation.”

Sheppard called both for reform to the Act and for responsibility of controlled drugs to become a devolved matter. Furthermore, Constance has also written to the Westminster Government asking for a four-nations summit to consider these issues. However, given the track record of the Johnson government on both drugs and devolution, the hope for any significant legal change from Westminster seems remote. So Scotland needs to take back control of drugs policy from London if it can.

The legal difficulty long faced by the Scottish Government in implementing the SNP policy of moving away from the present, failed policy of criminalisation of drug use to one of a healthcare approach is that the Misuse of Drugs Act 1971 is a reserved matter under the Scotland Act 1998 Schedule 5, Section B1. This reservation has prevented drug law reform by the Scots Government as it is outwith the powers of the Scottish Parliament to decriminalise the use of cannabis or other drugs by passing an Act of the Scots Parliament to that effect.

HOWEVER, there is an alternative potential legal way forward, which at first glance will surprise many people. Although the power to repeal or amend the 1971 Act “belongs” to the Westminster Parliament, the actual decisions regarding the prosecution of offences under the 1971 Act, like all other criminal offences, “belongs” to Scotland as it is under the sole jurisdiction of the Lord Advocate and the Crown Office. The Lord Advocate is in an especially powerful position in this regard because they are, to use the legal terminology, the “master of the instance” with complete discretion over all prosecutions in Scotland, including when to and, just as importantly, when not to prosecute offences.

If a Lord Advocate issues a general policy stating that they will waive the right to the prosecution of a specified category of offence then those acts, although still illegal under statute, can in practice be committed with impunity because the Crown can no longer prosecute that behaviour. This is because such a public policy declaration binds the Crown on the grounds that it would be unfair to prosecute citizens for behaviour they have been told will not be prosecuted for. These general waivers of prosecution can be used to completely negate the effect of a criminal statue.

Perhaps the most prominent example of such a general waiver by the Crown of the right to prosecute occurred with regard to the policy regarding homosexuality in Scotland between 1967 and 1980. The Sexual Offences Act 1967 only legalised homosexual acts in England and Wales, so homosexual acts remained criminal in Scotland until decriminalised the Criminal Justice (Scotland) Act 1980 a full 13 years later than in England and Wales. The Crown’s response to this anomalous and unfair situation in Scotland was to adopt a policy on non-prosecution of consenting homosexual acts by adults in private.

Exactly the same approach could be adopted with regard to prosecution of the use of cannabis or any other drugs prohibited under the Misuse of Drugs Act 1971. If the new Lord Advocate Dorothy Bain QC (below) were to publicly issue a Crown Office Circular, or make a statement in Holyrood, in the form of a General Crown Waiver Of the Right to Prosecute, stating that individuals would no longer be prosecuted for personal use of cannabis or other specified drugs, nor persons providing drug consumption rooms for persons consuming a wide variety of drugs, then overnight the use of cannabis and other drugs and the provision of drug consumption rooms would be de facto if not de jure decriminalised in Scotland.

There is nothing the British government could do to stop this effective decriminalisation of drugs and drug consumption rooms unless it were to take the unprecedented step of passing legislation to interfere with the prosecutorial discretion of the Lord Advocate in a way that has not occurred in the 300 years of Union between Scotland and England. Such a radical approach is surely too aggressive even for the Johnson government.

Politically the First Minister is, of course, free if she wishes to reassert the SNP party policy of desirability of the non-prosecution of the use of cannabis or other drugs in order achieve a switch to a healthcare model. However, the actual decision on non-prosecution is one for the Lord Advocate alone.

For the welfare of the very many Scots affected by drug use and abuse, as well as those who require cannabis it for medical purposes, one hopes that she will take it.

Scott Crichton Styles is a senior lecturer in Law at the University of Aberdeen