Why only independence will let us tackle this major issue

Last weekend, you may have noticed people tweeting with the hashtag #IstandwithPeterKrykant. Peter Krykant is a community activist who has been operating a converted minibus as a safe place for drug addicts to inject in Glasgow since August.  He has received support from medical students and the former MP Paul Sweeney. But last weekend he was charged with an offence under the Misuse of Drugs Act. 

I have to be careful what I say because I would not wish to be seen as seeking to influence the police or the Crown in respect of the prosecution of a particular individual but many people believe that the work Mr Krykant is doing reduces harm and saves lives and that he should be allowed to continue with it. 

In 2018 there were 1,187 drug-related deaths in Scotland – the highest since records began. Each death is a personal tragedy for the victims, their families and friends. It is also is a public health emergency which requires drastic action. 

Safe drug consumption rooms (DCRs) have been proposed by Glasgow’s Health and Social Care Partnership and have the unanimous backing of Glasgow City Council. A majority of cross party MSPs and many MPs also support their use. My friend and colleague, Ronnie Cowan, MP for Inverclyde, has been a dogged campaigner for drug policy reform since he was first elected to Westminster in 2015. Ronnie has visited Mr Krykant’s facility and spoken powerfully of the international success of safe DCRs in countries like Portugal where their introduction has resulted in a drastic reduction in drug deaths. The work of Ronnie and others has been instrumental in putting a public health approach at the heart of SNP policy with DCRs integral to the approach. 

The problem is that technically at least there is a risk that such facilities may be illegal under the Misuse of Drugs Act 1971, the subject matter of which is specifically reserved to Westminster under the Scotland Act, Schedule 5. This means that legislation at Westminster would be required to put DCRs on a firm legal footing. In April 2018 Alison Thewliss, MP for Glasgow Central, introduced a Private Members’ Bill aimed at legalising DCRs. As well as wishing to help addicts, Alison is acutely conscious of the health and safety risks posed to her constituents, particularly children, by needles being discarded in public places. Sadly, like most private members bills hers did not progress into law. 

Last year, under the chairmanship of Pete Wishart, MP for Perth and Kinross, Westminster’s Scottish Affairs Committee carried out one of the most extensive drug enquiries that have ever been conducted in Scotland. Their recommendations included substantial reform of the Misuse of Drugs Act including the decriminalisation of small amounts of drugs for personal use and, and the piloting of a safe consumption room in Glasgow. These conclusions were rejected by the Home Office. However, they were supported by SNP conference and appeared in the SNP manifesto for the General Election. 

Currently Tommy Sheppard, MP for Edinburgh East, is pursuing another private members bill reflecting the recommendations of the Scottish Affairs Committee including provision for safe drug consumption facilities and decriminalisation as well as reviewing the effects of welfare sanctions on drug users and amending the Equality Act 2010 to recognise drug dependence as a health condition. Unfortunately, due to the Tory majority at Westminster, Tommy’s bill has even less chance of success than the bill pursued by Alison in the last parliament. 

Not surprisingly many are frustrated by the Westminster route and have argued that Scotland should take the law into its own hands. The CEO of the Scottish Drugs Form David Liddell has said: “We’ve got a crisis in Scotland… we shouldn’t wait for the home secretary in Westminster.” 

Michael Gray, trainee lawyer and journalist with the Skotia, has argued that the Scottish parliament could pursue a more assertive strategy pushing the legal boundaries of what can be done under devolution and exploiting grey areas in the Scotland Act. He argues that such action should be pursued to help those suffering most in our society pending a second independence referendum and that if it fails it simply strengthens the case for independence. 

In theory, provided a Government bill has the support of the Lord Advocate or, in respect of other bills, the presiding officer, Holyrood can pass it and it will become law unless there is a legal challenge. A challenge could be brought by anyone with a legitimate interest but to date the UK Government has only challenged a Scottish Parliament bill once when they challenged The UK Withdrawal from the European Union (Legal Continuity) (Scotland) Bill in 2018. The challenge was successful largely due to retrospective amendments to another bill made in the House of Lords. Isn’t British democracy glorious? 

Michael Gray argues that in other parts of the world federal or non-sovereign parliaments commonly test the limits of their powers in courts. Regular readers of this column won’t be surprised that I am in sympathy with Michael’s approach. I am on the record as supporting a Holyrood bill to hold a second independence referendum if Boris Johnson continues to refuse a section 30 order. However, there is a big difference. The question of whether Holyrood has the power to hold a referendum is a grey area. There is a respectable body of legal opinion that it may well have the competence to pass such a bill because the Scotland Act is not clear on this point. In contrast, so far as the Misuse of Drugs Act is concerned, it’s quite clear that it is a reserved matter and if it requires to be reformed to enable DCRs to operate then it seems to me Holyrood legislation is a non-starter. It is possible there might be an ingenious way around this problem, but I have yet to see the argument made. 

So I have come reluctantly to the same conclusion that my colleagues on the Scottish Affairs Committee reached – the British Government must act to devolve drug policy and the ability to reform the Misuse of Drugs Act to Holyrood, before DCRs can be put on a firm legal footing.  What are the chances they will do so? Nil at present. Their attitude was exemplified earlier this year when they cynically held their own ‘Drugs Summit’ in Glasgow rather than engage with the one proposed by Joe Fitzpatrick, the Scottish Government’s Public Health Minister. The Home Secretary didn’t attend either summit and her Junior minister walked out early branding DCRs a distraction. 

One is left with the conclusion that DCRs, like the causes of drug dependency, namely poverty, inequality, social isolation and consequent poor mental health will not be issues that our country can tackle properly until we have full control over our own affairs.