Cormac O'Keeffe: Forcing a square peg into the round hole of Irish drug laws
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As the expression goes, square pegs do not fit into round holes.
But this is something like what the Oireachtas and the Government is being asked to do.
The Citizens’ Assembly on Drugs Use concluded possession of drugs for personal use should remain illegal, but that it should be decriminalised.
In other words, possession would remain an offence — but it would not attract a criminal sanction.
The assembly — in just seven months — has conducted the most thorough examination of the drugs problem in the history of the State.
In the short time-frame available to it, this analysis included, within a very broad remit, an examination of Irish laws on drug possession, alternatives in other jurisdictions, and what members of the assembly would like them to be.
Some observers could see from the outset — and numerous speakers said it during the hearings — that the assembly had a mammoth task.
For it to get any kind of proper handle on legal approaches in other countries, it would need to have an array of experts and researchers from those countries.
Most likely, a group of the assembly would need to visit a range of countries and see first hand how the policies work.
Failing that, the assembly would need to have had the time to commission independent researchers to conduct such a detailed examination for it and report back.
Another team of legal researchers could have been tasked with forensically examining Irish laws to see what was possible in terms of legal changes and how something could be decriminalised but remain illegal.
But the above options were not available to the assembly and it would have demanded a much longer time frame and various sources have said the 99 members were exhausted by October as it was.
So the assembly was reliant on legal experts, criminologists, and policy analysts addressing the assembly and taking questions.
Members did express confusion as to what decriminalisation meant, reflected indeed by some of the legal experts and policy analysts, with some stating decriminalisation would mean de facto legalisation and others stating the two were separate things.
Under the chairmanship of former HSE chief Paul Reid, the assembly adopted the position that members should not get bogged down on laws. The assembly should instead focus on the end result, on what they wanted from Ireland’s drug laws, and to leave it to the politicians to determine how to implement it.
An expert in the European drugs agency, Brendan Hughes, urged members to stay clear of trying to define decriminalisation, as there was widely different versions of it across Europe.
“Stay away from the word and think about what you want,” he said. “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.”
The assembly heard in detail from users and former users of drugs, their families and people working with them in communities and voluntary groups.
Members could not have been anything other than moved by the human stories and the impact of having a criminal record and the stigma associated with drug use and drug addiction.
In an interview with the , Mr Reid said the assembly “for the first time” among previous government or official drug reviews got to hear from individuals and families and communities. He said this “enhanced” the deliberations of the 99 members.
When it came to the recommendations, a significant majority voted in favour of a “comprehensive health-led approach”.
This would, as the “default” approach, put an individual, if found by gardaí in possession of drugs for personal use, through the health system — and no longer through the criminal justice system.
Under this approach, the assembly report said while the personal possession of drugs would “remain illegal”, individuals caught with drugs by gardaí would be given “extensive opportunities” to engage voluntarily with health services.
“This would minimise, or potentially completely remove, the possibility of criminal conviction,” the report said.
But it said there were “legal and constitutional issues” to achieving that — and that it was up to the Oireachtas, informed by legal advice, to figure it out.
This is the daunting challenge now facing a special Oireachtas committee.
Speaking at the report launch, the head of the assembly secretariat, Cathal O’Regan, was of the view there was “great clarity” in the body of the report on different types of decriminalisation.
He said if there was any doubt in the Oireachtas committee, the detail of the report “spells it out in black and white”.
It is fair to say experienced gardaí differ with this view.
One Garda source said: “Drug possession can’t be illegal but not a criminal offence and if the assembly were not able to examine the law, they should not have said anything about decriminalisation.”
A previous body, the Sheanan Working Group, which was set up by the Government and reported in 2019, came down against decriminalisation and said it was not possible under Irish laws as it “may lead to de facto legalisation”.
The Department of Justice and An Garda Síochána clearly expressed their opposition to any legal change while addressing the assembly, other than what has already been agreed in the Health Diversion Programme.
The programme, agreed by the Government in 2019 on foot of the Sheanan report, would see users caught up to a maximum of two times with drugs for personal use being referred to the health services.
But, five years on, that programme still not been implemented, with legal problems still delaying it — clearly indicating how long it could be for any more radical legal change could take.
“We already have the health diversion model,” said one senior justice source. “The assembly is recommending, essentially, the same model. The problem is they are saying this is decriminalisation and that is the message they are sending out to people.”
The views of the DPP and the Attorney General — who did not input into the assembly process — will carry considerable sway in the coming discussions.
The special Oireachtas committee will most likely invite a range of criminal and legal experts, constitutional lawyers and prosecution agencies before it to try and hammer this out.
They will have to determine is it actually possible to force a square peg into a round hole.