Can Scotland legalise cannabis even if Westminster forbids it?

However, in an increasing number of countries around the world, this ceases to be the case.

Last month, Germany partially decriminalised the recreational use of cannabis.

The adult residents of one of the most powerful and populous countries in Europe now have the freedom to possess a small amount of cannabis for personal use.

By July, they will be permitted to set up not-for-profit cannabis social clubs where locals can pool resources to grow and distribute cannabis to members.

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Recreational use in varying capacities is also permitted in numerous US states, Canada, Spain, Malta, and Luxembourg, with politicians in many other countries actively discussing whether or not to liberalise their approach to the drug.

Yet, as other nations engage in frank debates about the risks and benefits of cannabis as an industry, the conversation in Scotland is curtailed by the reality of the devolution settlement and a UK Government entirely unwilling to entertain the prospect of regulating recreational drug use.

The question is: Should Scotland be having the conversation anyway?

The reality

CHRIS Mackenzie was 18 years old when he started smoking cannabis.

“I realised I preferred cannabis to alcohol,” he said.

“It seemed like it was less damaging to my body and I certainly felt better the next morning”.

A few years later, he founded the Glasgow Cannabis Social Club in 2012 – a group which brought together medicinal and recreational cannabis users to exchange knowledge and host events.

Their annual 420 gathering on Glasgow Green sometimes draws crowds of more than 1500 people who openly smoke cannabis while police observe the overwhelmingly peaceful gathering through a fog of smoke.

“I’d grown up my whole life with people telling me how harmful this drug was,” said Mackenzie.

“But the more I learned about it and met others who used it, I realised it wasn’t so black and white.”

The Scottish Health Survey of 2021 found that around 6% of adults in Scotland had used cannabis in the past 12 months, increasing to 18% when it comes to those aged between 16-24.

A recent report from the World Health Organisation (WHO) also found that nearly a quarter (23%) of 15-year-old boys in Scotland had smoked cannabis before.

The WHO states that chronic cannabis use can cause “impairment of cognitive functioning” with a particular impact on memory.

It’s also known to be addictive and can exacerbate symptoms of psychosis in those with disorders such as schizophrenia.

Simultaneously, since medicinal cannabis was legalised in the UK in 2018, it is increasingly being used by doctors to treat a variety of ailments such as epilepsy, multiple sclerosis and even anxiety.

“We have this interesting process whereby cannabis changes from a dangerous drug with no therapeutic benefits to a non-dangerous drug with some therapeutic benefits depending on the context of its use,” said Dr Anna Ross, a lecturer in health and social sciences at the University of Edinburgh.

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Dr Ross is a regular contributor to the Scottish Parliament’s cross-party group on medicinal cannabis.

However, she told the Sunday National that the group’s meetings had so far failed to yield any results.

While in theory, it is possible to have cannabis prescribed by the NHS, it is understood that fewer than five patients have received the drug through the public healthcare system in the past five years.

“Fundamentally, we’re just going round in circles,” said Dr Ross.

“Despite the fact that it’s legal to prescribe, nobody is prescribing it on the NHS because the guidance is so strict.

Police officers seize cannabis plants from a farm in Scotland (Image: Newsquest)

“Clinicians say we need more evidence to prove it’s safe. Yet we have the evidence, it’s just not British evidence so it’s therefore not deemed up to standard.”

As the NHS refuses to prescribe cannabis to almost anyone, prescriptions from private clinics have soared.

For example, Mackenzie uses his own private medical prescription to treat arthritic pain in his leg as a result of being knocked off his bike in a car crash.

“For me, it’s not really about feeling high,” he said.

“It just allows me to live not only without pain but to actually feel good.”

The benefits of regulation

OF course, private healthcare comes at a considerable cost.

As a result, many people seeking a medicinal prescription turn to the black market alongside recreational users.

“The fact is that it’s relatively easy to get a hold of,” said Mackenzie, who also runs the CBD Tardis in Glasgow – a former police box from which he now sells cannabidiol (CBD) products, a legal and non-addictive active ingredient in cannabis which does not cause users to get high.

“When I get kids coming to the shop, they’re mainly trying to buy tobacco and rolling papers because it’s harder for them to get a hold of those products than it is for them to get cannabis.”

It’s a story which highlights the power of regulation.

In recent years, Police Scotland has taken a far less punitive approach to policing personal cannabis use.

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Anyone caught with a small amount of cannabis is likely to receive a Recorded Police Warning rather than a fine.

However, Stephen Murphy – the chief executive and co-founder of Prohibition Partners, a data and technology group for the global cannabis industry – said that this lax approach to policing the drug combined with the relative ease of access serves only to benefit the black market.

“One of the main drivers of reform we’ve seen in Europe is public safety,” he said.

“Consumption rates of cannabis haven’t dropped. If anything, they’ve significantly increased over the past 10 years.

“Yet for many police forces, cannabis is no longer a priority in terms of where they spend their time and resources.

“So, you have this situation where the public is consuming more and the illicit market is getting bigger and bigger.

“It means that there’s absolutely no safety guarantee for the product.”

Combine that with the economic potential to be gained from taxing legal cannabis – Murphy suggests that a mature UK market for cannabis could be worth as much as £20 billion – and it’s easy to see why some countries are changing their tune.

But Scotland can’t do anything, right?

THE power to legalise drugs is reserved to the UK Government, with the current Tory administration consistently making clear their intention to maintain the status quo when it comes to the legality of cannabis.

Former home secretary Suella Braverman even wanted to upgrade it from a class B to a class A – the same bracket as cocaine, heroin and crystal meth.

But Dr Ross said that there were at least two avenues that Scotland could pursue without the involvement of an unsympathetic UK Government.

The first involves changing the prescription guidance provided to doctors in NHS Scotland.

“Scotland has its own prescribing guidance via the Scottish Intercollegiate Guidelines Network (Sign),” said Dr Ross.

"They have yet to release guidance on prescribing cannabis.

A ruling from Lord Advocate Dorothy Bain could change the policing of cannabis use in Scotland

“The Scottish Government also has this flagship realistic medicine policy, which is meant to treat patients as equal partners and allow them to make informed decisions about their care.

“We should be utilising that when it comes to cannabis and changing the guidelines would allow far more people to get it prescribed on the NHS."

The second approach involves a ruling from the Lord Advocate similar to the one made with regards to safe drug consumption rooms.

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“We need a ruling that says it is not in the public interest to prosecute people for possession of this drug under a certain quantity,” she added.

“It could allow individuals to grow a small number of their own plants and set up social clubs.

“You could even apply a yearly fine for drug offences as a kind of business rate."

The future

IF the history of human drug use has taught us anything, it’s that a healthy dose of pragmatism is required when deciding drugs policy.

As Mackenzie told the Sunday National, simply wishing that nobody would take drugs and punishing those who do has failed to stem addiction rates, and a different approach is needed.

“I don’t believe in encouraging people to use cannabis who otherwise wouldn’t already consume it,” he said.

“Cannabis shouldn’t be advertised much like how tobacco isn’t advertised.

“But it’s a tool that can really help people. That needs to be respected.

“Are we really going to be one of the last countries to realise that?”