The Citizen Assembly met for the final time last weekend. In the highly anticipated finale, we saw the 99 members debate and vote on their final recommendations. After 6 months of hearing evidence, presentations and reading over 800 submissions from the public the 99 members were asked to decide the wording of recommendations which they voted to endorse or refuse.
The first and most important vote of the day was the first, members were asked if Ireland should continue with our current approach, and members were asked to vote to retain the status quo. Unsurprisingly this vote had a positive outcome with members voting overwhelmingly to reject the status quo, illustrating a clear attitude for reform among members.
The question now put to members was what type of reform would they endorse? This issue would prove divisive in some aspects. Members were then asked if they preferred a single universal approach to all substances or a hybrid approach to different drugs. The majority of members voted for a hybrid approach to substances, with cannabis, psychedelics and cocaine singled out as 3 substances.
When it came to voting on recommendations for cannabis, members were given 5 options, with regulation and legalisation as one option. In the final tally of these votes, and with one vote deciding the preferred approach a “comprehensive health-led” approach was chosen over legislation and regulation.
The outcome of this vote sparked a heated debate both in the room of the assembly, online and with the general public, who raised concerns regarding the ballot, the wording, and the voting system. Members stated they did not understand the voting system and were confused about the voting process. According to members the voting system and the issues raised were later clarified, but this did little to settle the contentious issue of cannabis reform in the room and in the public.
In my opinion, the ballot was poorly worded, why was the status quo available as an option when it was already rejected by members? Why was terminology like tolerance used as an option when this terminology was not used throughout the assembly? What is tolerance? Why were there two options for a health-led approach and what is the difference between the two options? I would argue these issues did cause some confusion among members during the voting phase. It would have been preferred if a number of clear options were given, such as decriminalisation, health diversion and legalisation/Regulation. If the wording was clear and unambiguous, I believe it would have eliminated the confusion in the room and made the voting outcome clear to both members and the public. As the saying goes, hindsight is a wonderful thing.
What is evident from the vote is the appetite for reform on cannabis. The assembly heard little to nothing about regulatory models for cannabis, no information about social club models, or the benefits of a regulated cannabis industry, although the majority of public submissions to the assembly did focus on these aspects. The members were not presented with any evidence to highlight that regulating cannabis is a health-led approach and is not mutually exclusive from a health-led approach. Nonetheless, members were favourable to regulating cannabis which should be viewed in a positive light.
Throughout the weekend members voiced their discontent regarding the vote on cannabis which is understandable as many feel passionate about this issue. Following calls from members it was accepted that the closeness of this vote be included in the final report to the Oireachtas. This report should be released by the end of the year.
Explanatory text later clarified the meaning of a “comprehensive health-led approach” to the public.
The main points of the proposed model are :
The state would respond to personal drug use primarily as a public health issue within the criminal justice system.
Less reliance on criminal sanctions. This means criminal sanctions may still be possible for personal possession.
Personal possession will remain a criminal offence. Which contains no change to the current status of cannabis.
Health intervention for those detected with cannabis for personal use.
Gardai and Courts would have legal powers to mandate people present for a health intervention.
Gardai retains powers of stop and search.
Alongside the proposed model a number of questions were left open and viewed as the responsibility of the Oireachtas.
Does the Irish legal system allow for the criminal offence of possession of drugs for personal use to be reclassified as an ‘administrative’ offence? The answer to this question has an important bearing on whether ‘decriminalisation’ can be done on a de-jure or de-facto.
Should the sanction of prison sentences for simple possession offences be removed entirely from the statute book?
What limits, if any, should there be on the number of times a person found in possession of drugs for personal use can be diverted to health interventions? Should no limit be set, or should a threshold be specified, beyond which a person would be referred back to the Courts for potential dissuasive sanctions (e.g., a fine)?
What dissuasive sanctions, if any, should be available for repeat offenders, and which body should apply those sanctions? Should the Courts continue to have the role of applying sanctions such as fines, Community Service Orders, the Probation Act, referrals to Restorative Justice programmes, etc. Alternatively, can, and should, another entity be authorised to impose administrative sanctions?
The Chair of the Assembly Paul Reid did clarify later that the recommendations from the Assembly effectively amounted to decriminalisation. While many news outlets ran with the decriminalisation headline and cited major reform of our drug policy, within the recommendations above I see both potential to reinforce the status quo but also opportunities for reform.
2- sides of the same coin
In total 36 recommendations were made, ranging from increase in services, funding and additional support. The recommendations at this stage are vague and ambiguous, with many major aspects left to be decided by the Oireachtas. The recommendation for a “comprehensive health-led” approach in my opinion can mean little change or major change.
Many, if not all of the recommendations from the Assembly are already available under our current 1977 Misuse of Drugs Act. The Courts are equipped to impose alternatives to a criminal conviction by way of a health-led approach. The Court has the option, upon recommendation from either the Health Service or Probation Service, to permit the defendant to undergo treatment, education or supervision. Unfortunately, these routes do not appear to be used in practice and it is difficult to establish the extent of their usage. The Adult Caution Scheme was introduced in 2006 and extended to first-time cannabis offences in recent years. At a glance, there is no change to the current options available to our criminal justice system, which means no need for reform of the 1977 act. The only addition would be the power of the Gardai to divert to a health intervention. The recommendations have been cited as an Irish-style Portuguese system, but the evidence from Portugal shows us that in cases of personal possession of cannabis, a health intervention is rarely needed. In Portugal, 80-90% of cases referred to its health intervention Dissuasion Committee are suspended/dismissed as there is no evidence of addiction or problematic use, reinforcing the evidence that 90% of consumers do not have a pattern of problematic use.
While Portugal was designed to eliminate the stigma of drug use, it has merely continued the moral judgment of cannabis consumers, instead of viewing consumers as criminals, it instead encourages society to view cannabis consumers as addicts, as a person who have a disease or are sick and in need of help which can be just as detrimental. A health-led approach needs to be led by the Department of Health, not the Department of Justice.
A health-led approach incorporated within a criminal justice system is not reform, it is merely a fresh coat of paint on the same problems.
The other side of the coin is not all bad. Instead of viewing these recommendations as restrictive and reinforcing the status quo of unjust punishment of cannabis consumers, we can view it as an opportunity to truly reform our drug policy. With many questions left for the Oireachtas to decide, there is room for manoeuvre and Improvement. Alongside the recommendation above, the Assembly made 35 other recommendations, one of which was for the Government to undertake the challenge of drug use and drug policy as a priority, meaning that there is a clear message that the Government make drug policy their number one priority and not ignore it any further. This has been echoed over the last week by TDs and stakeholders urging the government to take urgent action on the recommendations from the Assembly, meaning this discussion is firmly on the table.
As the divisive cannabis vote was so close, it is encouraged that our government take this on board when deliberating on the recommendations. A cross-party group of Oireachtas members of the Justice Committee, who released a groundbreaking report in December 2022 recommending regulation, have since issued a statement on this matter. They stated “We urge the Oireachtas to assign the report, when released, to the Justice Committee to allow them to carry out detailed deliberation and propose draft legislation. We emphasise the need for a detailed analysis and recommendations for decriminalisation and regulation of cannabis”. Alongside this Gino Kenny TD has prepared a Bill that would decriminalise personal possession of cannabis, this can be implemented immediately once it passes all stages. This Bill is currently waiting to be called for debate on the floor, but it is additional pressure for immediate action on this issue. Illustrating the potential path forward for cannabis in Ireland.
Although it is argued that a fully legal and regulated cannabis market, similar to the US and Canada is not compatible with international law, while other academics are of the opinion it would be permissible, this is not the favoured regulatory approach by consumers and stakeholders. Much of the conversations I have had past, and present argue for a social club model with the right to grow at home to be implemented here in Ireland. This social club model is permissible under a decriminalisation framework and is permissible under international law. As we have seen from advancements in Spain, Malta and also in Germany, where they are implementing this model under a public health approach, it can be done, and it can be a success.
While I am disappointed that the Assembly did not go further in their recommendations, it is clear that reform is needed. With many questions still to be answered by the Oireachtas, the fight for cannabis reform is not yet over.
I believe we should view these recommendations as the lowest bar to achieve and not targets to hit.