23rd September 2021
This week, Scotland’s Lord Advocate announced that Police in Scotland would now be allowed to issue recorded warnings for possession of Class A drugs, as an alternative to arrest. This is already an option for Class B and C drugs, but Dorothy Bain’s announcement means warnings can now be used for all drugs controlled under the Misuse of Drugs Act. Bain also discussed the increasing use of diversion schemes in Scotland, noting that the number of people diverted away from the criminal justice system had increased from 57 in 2017-8 to 1,000 in 2020-1.
While this is a small step in the larger context of our failed drug policy, it is also very significant. By allowing the police to use their discretion this way, the Lord Advocate has signalled an acceptance of the principle that criminalisation is not the right response to drug problems – and that this is true regardless of the drug involved. It is not simply that criminalisation is inappropriate for ‘softer’ drugs, but that it is damaging in all cases.
In taking this step, Bain is adopting principles we have been calling for since 2017 and also following recommendations set out in the recent Scottish Drug Deaths Task Force report on law reform, which calls for a comprehensive change in our legal response to drugs.
While Bain was quick to state that this did not represent de facto decriminalisation, her decision applies the same logic as the more formal decriminalisation models in countries such as Portugal. It is a challenge to the principles that underpin prohibition because it rejects the idea that the first, and most appropriate, response to the possession of drugs other than alcohol is arrest and punishment. It recognises that, while the police remain charged with upholding the outdated and unworkable law as it stands, they should be given the leeway to reduce the needless harms caused by criminalisation.
This is not full decriminalisation (and a recent, detailed description of what comprehensive decriminalisation could involve is available here). Nor does it touch directly on the other pressing reforms that are needed to tackle drug harms in Scotland, or across the UK. Bain has not yet announced a position on overdose prevention centres, for example. Nor does this decision affect the provision of services in Scotland. Where diversion into treatment is an option, it is essential that the treatment services are available – and addressing that problem is the responsibility of the Scottish Government.
Nevertheless, not only will this change go a long way to reducing the number of people needlessly criminalised in Scotland, it also represents an important shift of principle. In doing so, it moves us closer to the root and branch review of our drugs laws called for by the Scottish Drug Deaths Task Force: something we - along with over 50 MPs
- have been calling for as we mark the 50th anniversary of the Misuse of Drugs Act, and which today has also been supported by the Times.
The momentum is shifting on drug policy. The growing calls for reform among politicians, within the media and in the wider general public will lead to change. We have long argued that one of the greatest barriers to reform is simply that those who know we could do better remain afraid to speak out. Hopefully, this week’s developments will allow more of those who recognise the need for change to add their voices to the growing calls for an end to 50 years of drug policy failure.
Learn more about the Misuse of Drugs Act and what calls for a drug policy fit for the 21st century would look like.