Scotland: The Proposal to Decriminalise Drugs

Harry Hetherington discusses the Scottish Government's recent proposal for decriminalisation of drug use amid continued high drug-related death rates in the country.

Photo by Gras Grun

Statistics on drug-related death in Scotland published in August have added fuel to the debate around illegal drug use in the country, coming one month after a proposal for decriminalisation.

According to the National Records of Scotland's report, 1,051 deaths were attributed to drug misuse in 2022. This is the lowest level for five years and indicates that deaths may have passed their peak. However, this figure still represents the highest rate in Europe, at 15 times the European average.

Why is the Rate in Scotland So High?

The reasons why Scotland exceeds other European countries (including the rest of the UK) in drug deaths are complex. Analysis by NHS Scotland and the University of Glasgow cites the legacy of economic deprivation caused by deindustrialisation as a significant factor in the explosion in drug deaths seen in subsequent decades. People in Scotland’s top twentieth percentile for deprivation make up more than half of all drug-related deaths and are 16 times more likely to die from drug misuse than the least-deprived 20 percent.

Report author Dr John Minton argues that similar surges in suicide rates among deprived communities are “consistent with the hypothesis that economic and other policy decisions during the 1980s created rising income inequality, the erosion of hope amongst those who were least resilient and able to adjust, and resulted in a delayed negative health impact”.

This delayed impact is exacerbated by Scotland’s ageing population – there are now significantly more over-65s (1,091,000) than those under the age of 15 (832,300) – and this is reflected in drug user demographics. The average age of a person dying due to drug misuse rose from 32.2 in 2000 to 44.8 in 2022. Among older drug users and addicts, a combination of decades of drug use and related chronic medical conditions are increasing the risk of overdosing.

A more recent driver of increased drug deaths is the change in the types of drugs available to users. Fiona Measham, Chair in Criminology at the University of Liverpool, has cited a rise in deaths caused by synthetic opioids, by drugs bought from the internet, and those attributed to multiple drugs (‘polydrug’ deaths). Opioids were implicated in over 80 percent of deaths, but often in combination with new psychoactive substances (NPSs), drugs which have been made to mimic the effects of substances such as cocaine or ecstasy.

The increase in synthetic drug misuse has also been connected to the Taliban’s ban on the production and trade of opium in 2022, drastically reducing the global heroin supply, which Afghanistan had dominated. The resulting rise in prices has led to greater prevalence of synthetic opioids in the UK like fentanyl which have a higher potency.

What is the Scottish Government Proposing?

As detailed in a policy paper published in July, the Scottish government proposes decriminalising the possession of drugs for personal use. Decriminalisation stops the criminalising of the user (prohibition) while stopping short of legalising the drugs market (legalisation).

Announcing the proposals, Scotland’s minister for drugs and alcohol policy Elena Whitham stated that “the war on drugs has failed”. She continued: “criminalisation increases the harms people experience. Criminalisation kills.”

The vast majority of drug offences recorded in Scotland relate to possession, although a very small proportion of these lead to a custodial sentence. Currently, laws covering drugs are made in Westminster rather than Holyrood, and are primarily covered by the Misuse of Drugs Act 1971. Scotland does, though, have the power to make its own laws to tackle abuse of substances like alcohol.

The paper argues that decriminalisation would not be a panacea, but that it would de-stigmatise users, enabling them to access support and be guided through recovery without fear of being penalised. By encouraging users to access help before they reach a crisis point, the proposal argues that users would be less at risk of unsafe drug use or overdosing.

“Criminalisation increases the harms people experience. Criminalisation kills.” - Elena Whitham, Scottish Minister for Drugs and Alcohol Policy

The proposal also advocates for harm reduction measures such as supervised drug consumption facilities and increased access to the drug naloxone, an emergency antidote for overdoses of opiates and opioids. Such an approach differs to a more traditional strategy that requires abstinence as a measure of successful treatment, and as an expectation for users before they can access treatment.

Some experts note that government policy that focuses on abstinence can do more harm than good. Commenting on the drug statistics in the country, Iain McPhee at the University of the West of Scotland pointed to “the lack of focus and funding towards actual harm reduction” as having a significant impact.

Proponents of drug decriminalisation argue that outright prohibition of drugs creates an unregulated illicit market which enriches organised crime and ultimately harms society. They argue that decriminalisation reduces the risk of harm for users, though the government paper concedes that it would still leave an unregulated market which would not address the illicit origin or safety of the drug supply. Therefore, the proposal leaves the door open for the creation of a strictly regulated legalised market in the future led by an “evidence-based approach”.

Does Decriminalisation Work?

The Scottish government paper cites Portugal, one of 30 countries worldwide to have decriminalised drug use in some form. The Portuguese government made the change in 2001 in the wake of an HIV epidemic caused by widespread heroin use in the country. Advocates of the policy point to the creation of Commissions for the Dissuasion of Drug Use, three-member panels made up of social workers, legal advisors and medical professionals, which hear an apprehended drug user’s case and decide on appropriate sanctions and treatment plans.

In the early years of the change, over 90% of Commission cases resulted in administrative rather than punitive measures. Overdose deaths fell from 369 in 1999 to 30 in 2016 (in a country with almost double Scotland’s population). Meanwhile, the number of people incarcerated for drug offences decreased from 3,863 to 1,140.

However, longer-term academic assessment has found mixed results in terms of the impact on people being able to access better support for drug addiction. Dr João Goulão, who is known as the architect of Portugal’s drug policy, noted that "decriminalisation by itself gives you nothing" in the struggle to reduce drug deaths. Instead, it is the starting point in a strategy which also requires a public health-oriented approach to treatment and recovery.

Could Decriminalisation Work in Scotland?

As the current legal framework limits the changes to drug policy that Scotland can implement, the push for drug law reforms must be viewed in the context of independence. The government report was preceded by a 2019 SNP resolution formally adopting decriminalisation as a policy aim and describing existing legislation as “not fit for purpose”.

Anne-Marie Ward, founder of addiction recovery charity Favor UK, stated that she “[doesn’t] believe for a moment” that the Scottish government is seriously considering decriminalising drugs in the absence of the necessary massive investment in drug treatment which would be needed, and is instead using the issue because it highlights a non-devolved aspect of UK law.

Decriminalisation, Ward says, is an “extremist” view designed to manufacture a new constitutional grievance. Ward co-authored the Right to Recovery Bill, an alternative bill proposed by the Scottish Conservatives advocating for the universal provision of addiction treatment for drug users regardless of their past behaviour, which does not explicitly call for decriminalisation.

Whether it is a genuine attempt to enact fundamental change or a piece of political manoeuvring in the debate on independence, the Scottish government is right that decriminalisation is incompatible with the UK’s current drug laws. As if to prove the point, a Downing Street spokesperson responded to the report by stating that “there are no plans to alter our tough stance on drugs”, while admitting that they had not read the proposal.

Future Drug Strategy

Scotland’s high rate of drug-related deaths has no obvious solution. Understandably, the highly charged nature of the debate can skew public discourse.

In 1998, when the Portuguese government was forming its drug strategy, it consulted an expert panel, which suggested that there are “many pre-conceived notions about the use of drugs, many of which are false and result from uninformed emotional reactions”. The policy that Portugal settled on may not be transferable to the political reality of a country like Scotland, but the panel’s observation is still relevant.

In practical terms, decriminalisation can be sought through a change to UK-wide drug laws, devolving these laws to the Scottish parliament, or through Scottish independence. Even without decriminalisation, steps can and should be taken to tackle the crisis, such as massive investment in drug treatment programmes, a focus on harm reduction rather than total abstinence, and ensuring that all users qualify for treatment regardless of their past behaviour.

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Researched by Robyn Donovan / Editor: Laura Pollard / Online Editor: Harry Hetherington

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