Portugal, Scotland and the case for decriminalising drug use

As a society, our attitude to drugs is muddled.

We have created a system which calls misuse of drugs a major health problem but where the default reaction to drugs is criminalisation. Drugs are treated fundamentally as a justice issue, and other policies bend themselves around this reality.

Recent years have seen some concessions from police and the PPS that seem to appreciate this fact, but these are fairly minor and, as they concern softer drugs, they may not affect the people in most need of help.

Illegal substances are tiered into three classes – A, B and C – and, when it comes to possession, the PSNI take differing attitudes to different drugs depending on which tier they are in.

Police have relaxed their approach to possession of cannabis, for example, with what amounts to a discretionary light touch.

Possession is different to dealing but, within the world of selling drugs, there is a marked difference between handing out small bags of cannabis for £50 and huge drugs empires shipping in millions of pounds worth of Class A drugs, and murdering rivals as one aspect of the business.

The justice system of course takes account of the nature and extent of a person’s involvement in the drugs trade. Selling some cocaine to your friends at no profit might result in a community order, while smuggling in a boat of heroin will mean a long time in prison.

So it is not the case that no thought or discretion exists within Northern Ireland’s approach to drugs. The questions are not about fine details. They concern the big picture.

Questions

Does our justice-first attitude get in the way of treating substance abuse as a health concern? Does it discourage people who need help from seeking that help out?

The policing and judicial response to the work of major drugs empires is significant. From one viewpoint, that seems fair. These are criminal empires worth hundreds of millions of pounds that are prepared to engage in intimidation and serious violence to boost their business. But is the cart before the horse?

Do these criminal empires only exist because the central trade – selling drugs – is illegal? If that were not illegal, instead of criminal industries would there simply be industries? Regulated, taxable, trackable industries, without the associated murder and fear?

If the answer to those questions is yes, then any benefit from criminalising the drugs trade is therefore found in how prohibition affects drug use. This is an issue of consumer protection, of public health.

But, while drugs are illegal, they are not difficult to get. The Department of Health considers substance abuse to be a serious issue.

Perhaps the question to ask is this: does the criminalisation of the drugs industry achieve anything positive at all?

It seems like the answer can only be yes if the public health benefits of criminalisation outweigh any negatives of that criminalisation.

Campaigns

Last September, Scotland’s Lord Advocate Dorothy Bain announced that police in Scotland would be allowed to issue recorded warnings for possession of Class A drugs, as an alternative to arrest.

This was already the case for Class B and C drugs and the new directive means that this option now exists for all substance prohibited under the Misuse of Drugs Act.

Transform Drugs Policy Foundation is a UK charity that, broadly speaking, wants drugs to be decriminalised as part of a raft of policy changes to build a society where “drug policy promotes health, protects the vulnerable and puts safety first.”

The organisation says: “Our current system of drug prohibition fails everybody. That is why we believe currently illegal drugs should be legally regulated through a system of risk-based licensing.”

Its response to the move in Scotland was to say this is a small step, but a significant one, with the Lord Advocate signalling “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.”

There seems to be very little political support for these big-picture changes, despite the fact that organisations such as Transform are no longer marginal voices.

The Times – a conservative newspaper – responded to the move from Scotland’s Lord Advocate by reiterating its own position that drugs should be legalised and that drugs problems should be treated as a health issue.

Last week, Mayor of London Sadiq Khan announced a pilot measure to effectively decriminalise cannabis possession, that will apply in three London boroughs.

Meanwhile, several states in America have legalised cannabis and show no signs of a u-turn.

Perhaps the most valuable comparison, however, is in Europe.

Portugal

Last year, Transform published a report looking at the results of two decades of de facto drug legalisation in Portugal. Key facts include:

• Drug-related deaths fell after the reform of Portugal’s drug policy, and have remained below the EU average since 2001.
• The proportion of the prison population sentenced for drug offences has fallen from over 40% to 15%.
• Rates of drug use have remained consistently below the EU average.
• Portugal has gone from accounting for over 50% of yearly HIV diagnoses linked to injecting drug use in the EU to 1.7%.

Per the report: “In 2001, Portugal decriminalised the personal possession of all drugs as part of a wider re-orientation of policy towards a health-led approach. Possessing drugs for personal use is instead treated as an administrative offence, meaning it is no longer punishable by imprisonment and does not result in a criminal record and associated stigma. Drugs are, however, still confiscated and possession may result in administrative penalties such as fines or community service…

“Importantly, the decriminalisation of personal possession is only one part of broader health-centred drug policy reforms that involve an increased focus on harm reduction and treatment provision. By ‘accepting the reality of drug use rather than eternally hoping that it will disappear as a result of repressive legislation’, Portuguese reform allows drugs to be treated as a health, rather than criminal justice, issue…

“In the first five years after the reforms, drug deaths dropped dramatically. They rose slightly in the following years, before returning to 2005 levels in 2011, with only 10 drug overdose deaths recorded in that year…

“In 2001, Portuguese drug death rates were very similar to the EU average. While rates fell in Portugal following reform, they increased across the rest of Europe in the same timeframe. From 2011 onwards both Portugal and the rest of the EU have trended similarly, rising until 2015/6 — however, the gap between the two remains considerably wider than it was pre-reform. In real terms, drug death rates in Portugal remain some of the lowest in the EU: 6 deaths per million among people aged 15-64, compared to the EU average of 23.7 per million (2019). They are practically incomparable to the 315 deaths per million aged 15-64 experienced in Scotland, which is over 50 times higher than the Portuguese rates…

“Levels of drug use in Portugal have been consistently below the European average over the past twenty years. This is particularly the case among younger people: Portugal has some of the lowest usage rates in Europe among those between the ages of 15-34.”

What now?

Portugal does not answer all questions about drugs. It cannot be held up as a proof of concept for full decriminalisation, because that is not what has taken place. Drug dealing remains a crime. Even cultivation of small amounts of cannabis for personal use is a prosecutable offence.

Questions about what would happen to the drugs trade, and its turf wars and violence, if drugs were fully legalised and regulated therefore have to be set aside. But what about public health?

There is strong evidence that a much gentler policy on drugs possession has helped promote better health outcomes - and has not been accompanied by an explosion in drugs use.

However, these better health outcomes cannot simply be attributed to a softer justice approach. Portugal’s reform was on two tracks. A significant decriminalisation of drugs possession, yes – but also sweeping changes in the health system aimed at getting better health outcomes.

Treating substance abuse as a public health issue is not something that happens just because it is less of a focus for the justice system. The lack of criminalisation may encourage more people to engage with the health service, but systems and programmes and resources need to be in place to respond to individuals’ needs. Any benefits in Portugal should be attributed to how both sets of change worked together.

Similar, albeit perhaps not as comprehensive, initiatives have taken place elsewhere in Europe. Results have not been clear cut, but they do seem to strongly suggest that decriminalisation does not lead to a widespread increase in drug use.

These are difficult discussions to have. The political will to make sweeping changes seems low.

Consider some of the reactions to the Mayor of London’s pilot scheme. “YOU DOPE Sadiq Khan’s plan to decriminalise cannabis could see London murder rates soar” says The Sun.

That may be no surprise from a newspaper that has never had much affection for the mayor. However, even Mr Khan’s party leader, Sir Keir Starmer, sounds like a nay-sayer: “I've said a number of times and I will say again: I'm not in favour of us changing the law or decriminalisation. I'm very clear about that.”

When it comes to dealing with substance abuse, the focus should be on what works – just as with any area of health policy.

The problem with drugs is that it’s difficult to even start that conversation.