'Don’t get hung up on decriminalisation': Citizens’ Assembly set for drugs laws vote
(Left to right) Paul Reid, Chair of the Citizens’ Assembly, Aubrey McCarthy, Co-founder and Chair of Tiglin Rehabilitation Centre and Laura Dunleavy, Kinship Care Ireland, at the Citizens’ Assembly on Drugs Use earlier this month. Picture: Maxwells
There was a moment during a meeting of the Citizens’ Assembly on Drugs Use in early September where a member stood up and expressed frustration over what decriminalisation of drugs actually meant.
The member said they had been circulated a document compiled by the assembly secretariat which said that under decriminalisation, drug possession would no longer be a criminal offence, but that it would still not be legal.
A leading legal expert, Tom O’Malley, had just told the assembly that in his opinion if drug possession was decriminalised it would effectively be legal.
The barrister and senior lecturer has examined this very issue on many occasions, including as a member of a previous Government expert committee tasked with examining drug possession laws.
The Working Group to Consider Alternative Approaches to the Possession of Drugs for Personal Use, published in 2019, came down against decriminalisation, concluding that, under the Irish legal system, it “may lead to de facto legalisation”.
The issue raised by the member had the potential to throw a spanner into the works of the assembly. In stepped Brendan Hughes, an expert on drug legislation from the European Monitoring Centre for Drugs and Drug Addiction (Emcdda).
He told the assembly he had almost given up trying to define what decriminalisation was as there were widely different definitions across Europe, in part because of different legal systems.
His advice to members was this: “Stay away from the word and think about what you want and what direction you want to go.
“You have laws and regulations — and they can be changed.
“Decide do you want a person to have a criminal record, do you want guards to have powers or not? Don’t get hung up on decriminalisation.”
There was almost a sense of relief among members and they gave his comments a round of applause.
“I actually think that it was one of the defining moments in the assembly debate,” assembly chair Paul Reid said.
In an interview with the ahead of the assembly’s last, and crucial, meeting this weekend, the former HSE boss said Mr Hughes simplified the issue for the 99 members, chosen to represent the general public.
“We have had various lawyers, barristers, criminologists and academics talking about the various aspects of legalisation and decriminalisation and, inevitably, you get various flavours of what means what,” Mr Reid said.
“We practically had lawyers saying ‘well, decriminalisation is the same as legalisation’ and then you had others saying that’s wrong.
"The design of that legislation, the detail of that legislation, is beyond us.”
This weekend the members will go through a second draft of proposed recommendations, each with a context attached to them, and agree the wording of a final ballot to vote on.
All the signs appear to be pointing to some form of decriminalisation, but it is still all in the hands of the members on the day.
“I think it’s hard to gauge, to be frank,” Mr Reid said. “After the assembly meeting on the legal issues we sent them a questionnaire and we got feedback and I think it’s fair to say there’s a strong mood that the status quo has to change—I think that’s clear.”
What shape that mood will take in specific recommendations is less clear.
“Certainly, there’s a body among assembly members that we should go liberal and legalise some if not all drugs,” Mr Reid said. “There’s a quantum in the middle who feel ‘we shouldn’t go there’, but feel we can’t stay as we are. It’s hard to gauge. I wouldn’t call it and it could be tight.”
He said there was “frustration” among some members in relation to presentations from the statutory authorities, such as the gardaí and health.
“There was a feeling that many of the statutory bodies said ‘no, no, things are okay, we just need more funding’. There was frustration among members. It wasn’t just the guards. The guards presented twice and they were very clear—‘no change, no change, we will lose our powers [under decriminalisation and legalisation]’. They didn’t deviate.
“Some of the other statutory bodies said the same, the CMO [Chief Medical Officer] and the health service, though they were a bit more nuanced, but really similar.”
But does he feel the assembly members have had enough space and time to digest all the presentations and discussions, bearing in mind the legal matter was just one of the terms of reference, with other terms focusing on the human, medical and social issues, the level and type of services available, both State as well as voluntary and in the community, and wider matters of prevention and recovery?
“Members would say they would have liked more time. However, equally, they say they feel much better informed. I think they understand we’re trying to get through a wide breadth and depth of issues. They’ve had 150 presenters, over 70 hours of presentations and 200 hours of deliberations at their tables.”
He said that “certainly” the human stories members heard, from users, ex-users and family members, “shaped a lot of their thinking”, but said that “equally” the gardaí had an impact.
“They were completely against legalisation because people will lose the fear and the risk of drug tourism, so, while there was some frustration [with their views] a lot of people took that on board as well.”
Asked have members received enough information on the impact of decriminalisation or legalisation models in order to inform their recommendations, Mr Reid said: “I think as much as we possibly could, given we were trying to operate within the time frame we had.
“To be honest, there’s not a whole lot of evidence collated as yet, on the impact. There’s a lot of hearsay. Even the European evidence on Portugal is reasonably limited.”
As well as hearing from experts, members were also provided with a number of documents, including on legal changes.
They include a report by the Emcdda on ‘Cannabis laws in Europe’, published only last June, and the assembly secretariat document on legal options, which outlines five different possible models, including prohibition with health diversion, decriminalisation and legalisation.
Mr Reid said members were also aware of developments in Europe, including in Belgium and the Netherlands [the latter a long proponent of liberal cannabis policy], which have seen a sharp rise in gangland violence and violence directed at prime ministers, judges, police and journalists.
Only this week the European Commission said the drugs trade was “one of the most serious threats” facing Europe, fuelling a “wave of violence”, resulting in the deaths of three innocent children this year.
Mr Reid said that, for members, their task is a matter of “balancing the risks” between change and keeping the status quo: “There’s risks associated with change, but there’s high risks to keep doing what we’re doing. So, it’s really a balanced call on the risks.”
Members were also asked to take in completely different views among medical experts and academics and advocacy groups, including on the medical effects of cannabis and other drugs and whether, and to what extent, that would increase with liberalisation.
“Assembly members have nothing but amazed me by their capacity to work through all the views they heard and they have managed the swing of views very well,” Mr Reid said.
“I have said to them, there is a point where they have to go with their hunch as well. They have to call it. If we had another six months we might be in a better place to call it, but that’s the process we have. We have to do the job we have been asked to do.
“Our focus should be on quality [recommendations], not quantity, and be focused—to give the line of flight, the direction and outcome we would like to see.”
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