Sowing The Seeds of Law Reform

Every lawyer knows, there comes a time in a case when the evidence is sufficiently compelling it can no longer be ignored. The facts metaphorically speak for themselves. This tipping point has already been reached in the debate over the legalisation of cannabis for medicinal use. The scientific evidence that cannabis has enormous medicinal value is compelling and the time has come to remove the restrictions placed on the plant by international conventions and domestic law. The evidence that cannabis has medicinal value now far outweighs any perceived harm. Consequently, if one were to apply an evidential standard of proof, namely the balance of probabilities, then the law should be changed. And yet, we wait for the Irish Government to take the initiative which so far it has failed to do.

It is now almost a year since the Government announced outline plans to decriminalise the possession of small quantities of controlled substances for personal use, following the lead taken by other jurisdictions, most notably Portugal which decriminalised in 2001. In the intervening period since that announcement, the nature of that Government has changed giving rise to a minority executive with a more conservative hue. Fine Gael, which forms the bedrock of this minority government, prides itself on being the party of law and order; and consequently its innate conservatism does not lend itself well towards issues of social justice especially where drugs are concerned.

Decriminalisation for those not familiar with the concept, is the process of removing criminal sanctions for possession of small quantities of illicit drugs under the Misuse of Drugs Acts 1977-2015. Critics of decriminalisation point out out correctly, that it does not remove criminality from the equation. In practical terms, decriminalisation would have no effect on illicit markets and the related ills of organised crime: violence, public disorder and imprisonment. Decriminalisation merely gives consumers the permission to purchase what the illicit market is prohibited by law from selling. It stands to reason that if decriminalisation occurs then the only benefactors will be those who control the illicit market, namely organised criminal gangs.

Therefore the only way to reduce the illicit market which has been outsourced to criminals is to provide a form of legal regulation; accepting in part that drug usage, like the use of alcohol and tobacco is a fact of life, whether you like it or not?

The Portuguese Solution

Historians familiar with the Irish state know all to well, that Ireland has a poor track record on matters of public health and social justice. On more than a few occasions in the past, progressive reforms have been ignored or delayed through a combination of inertia, ignorance and interference from vested interests whose own short-term pecuniary interests were at stake. Short-term decision making at the heart of government or to put it mildly, ‘Irish solutions to Irish problems’ have caused systemic harm to our public health system in the past. Decriminalisation, the option which is on the table, is not an Irish solution – it is a Portuguese one which has at least opened the eyes to many who did not realise that the policies of drug prohibition caused more harm than good.

Fifteen years after Portuguese embarked on decriminalisation, the Irish Government has belatedly decided that Portugal has a solution to a problem which is not unique to Ireland, but still a ‘domestic problem’ nonetheless. The Portuguese solution of course was not unique, the Netherlands in 1976 and latterly Switzerland had embarked upon decriminalisation of cannabis earlier.

However, since Portugal introduced decriminalisation the world has moved on. Decriminalisation is no longer the preferred or indeed the sensible option. In 2012, Colorado became the first of four states in America to legalise cannabis for recreational use, having legalised for medicinal use in 2000. In 2013, Uruguay became the first country to move towards legal regulation of cannabis for recreational and medical use, proactively moving away from the lunacy of global prohibition which had its origins in American race politics of the 1930’s. At the time of writing this article, twenty-five states in America have legalised cannabis for medicinal use, and from next year Germany the most scientifically advanced country in the Europe will allow patients to purchase cannabis buds in pharmacies and dispensaries. If Germany, which is governed by the Christian Democratic Union in coalition with the Social Democratic Party recognise the way forward, why is the Irish Government still dragging its feet? Both the CDU and Fine Gael belong to European People’s Party. Strange bedfellows indeed one might say.

The problem with Irish Governments is that they are not proactive. As aforementioned, despite the strength of evidence and best international practices relating to cannabis, the Department of Health continues to take an insular and parochial approach towards drug policy reform. If the past is anything to go by our government remains overly deferential to bodies whose own short-term pecuniary interests are at stake, such as the Irish Medical Organisation and the Pharmaceutical lobby. What the Irish Government needs to do, is take the lead and legislate immediately for the regulation of cannabis for medicinal and scientific use rather than wait for ‘domestic affirmation from Irish experts’, or merely throwing into committee what international experts in the world’s leading scientific research laboratories have already proven. To put it simply, the Irish Government does not need to reinvent the wheel or play pass-the-parcel with the lives of vulnerable people who are in need of medicinal cannabis.

Justice delayed is justice denied

Part of the problem with introducing reforms such as the ones we are suggesting, is that there still remains in Ireland a governmental impulse to control people, which is a hangover from a time when the state was overtly catholic in its mentality and disposition. This mindset runs contrary to the very essence of liberty and freedom of choice which are the foundation stones of modern plural democracies. Ireland is not alone in this respect, but that does not excuse the Government from perpetuating the culture of cannabis prohibition which flies in the face of science, common sense and reason.

A culture of deference and duplicity

In the past the Irish state has failed in one of its fundamental duties to uphold and vindicate the rights of its own citizens on matters of public health. One need only be reminded of the hepatitis C scandal, where at least 260 people died as a consequence of being infected with contaminated blood products, many of them haemophiliacs who were supplied with blood products sourced American prisons. The manner in which those victims were treated was appalling by any measure, and the reaction of the state can be attributed in part to political incompetence and callousness in the extreme. What is clear is that state will often protect the interests of the few to the cost of the many, which was unpalatable then and remains unpalatable today?

But if the hepatitis C scandal was bad, it pales in comparison to the wholesale institutional abuse of children in industrial schools and reformatories between the 1950’s-1980’s. Indeed, the Irish State permitted at least three experimental vaccine trials on children in these institutions in 1961, 1970 and 1973 respectively . In 2001, the Laffoy Inquiry (Also known as The Commission to Inquire into Child Abuse) established a specific division to look at the nature of those child vaccine trials, however that investigation was short-lived. Judicial Review proceedings were initiated in November 2003 against the order to establish the Vaccine Trial Inquiry. On 25 November, 2003, an undertaking was given to the High Court, by the Commission, that it would not conduct any hearings in relation to the matters within the ambit of the Order, until the matter was settled. The practical effect of this undertaking was that the work of the Division was suspended at that point and never re-commenced. Consequently, the true story of the vaccination of children in industrial schools never fully came to light much to the dismay of those who were its victims.

Both the Hep C and Vaccine Trials scandal remain a black stain on the conscience of the Irish State, one which needs to be exercised. Experts in the field of drug policy reform know that many of Ireland’s forgotten children, those who were subjected to horrific abuse in church/state institutions fell into drug and substance abuse in later years. Many of them were penalised under the Misuse of Drugs Acts for being found in possession of the substances they sought relief from to mask the pain caused in childhood. More than a few were prosecuted and imprisoned for the possession of and or cultivation of cannabis, a drug which has proven medicinal value in the treatment of Post-Traumatic Stress Disorder. The sad reality is that those prosecutions continue to this day.

Presently, we have an unacceptable position in Ireland where patients with serious illnesses, who would like to access medicinal cannabis cannot because of the restrictions which have been imposed under the Misuse of Drugs Acts 1977-2015 and the accompanying regulations. Notwithstanding, the strong scientific evidence which supports the therapeutic value of cannabis, the law precludes these people, our fellow citizens, from accessing medication which can treat illnesses such as Multiple Sclerosis, Dravet’s Syndrome, Jeavon’s Disease, Crohn’s disease to name but a few.

The Cause of Fweedom

We believe that ordinary citizens can make a difference if they are well-informed and well-organised. In Ireland, the law governing cannabis prohibition does not require a constitutional referendum to be changed. It merely requires a majority in the Oireachtas to pass a Regulation of Cannabis Bill for Medicinal and Scientific into law.

That possibility is not beyond the pale of reason, it just requires the political will to do so. But to make that happen, we started the Fweedom campaign to inform, to educate and to stimulate members of the general public into action. It is your voices that politicians and leading civil servants hear, the louder those voices the more they are heard. This democracy belongs to all of us, but it requires the foresight and the endeavour of small minorities often on the fringe to persuade the majority of the benefits of reforming the law in the interest of the common good.

Thankfully, international developments have placed cannabis reform on the political agenda, and the tipping point has been reached. The question remains thus, do our political representatives have the foresight to effect positive change, or do they wish the huddle in the failed policies of the war on drugs and the injustices which flow from it?

Fweed as an organisation does not advocate drug use, rather we accept as a matter of fact that people use and sometimes abuse drugs such as cannabis or indeed alcohol. We acknowledge that some people use cannabis recreationally and out of choice, whilst others use the drug out of necessity for medical purposes. It is people in this later category which the proposed Regulation of Cannabis (Medicinal and Scientific Use) Bill is designed to help; namely those people who due to illness find therapeutic relief in what cannabis has to offer. The law as it stands prohibits them from possessing or indeed cultivating a plant which researchers in some of the world’s foremost medical and scientific research centres have accepted as having therapeutic medicinal value. To treat this behaviour as criminal, which the current law does, perpetrates an injustice against the most vulnerable in our society, and therefore it is a matter which the Oireachtas must – in all good conscience address.

International developments such as the provision from next year of cannabis buds to patients with serious illness in Germany can no longer be ignored by Irish policy-makers. Whilst reticence and caution is understandable, inordinate and inexcusable delay is not. The Irish Government does not enjoy a monopoly on wisdom when it comes to drug policy, especially when the circumstances that gave rise to cannabis prohibition in the first place remain the controversial to this day.

The era of cannabis prohibition is coming to an end, our government like others can only delay the inevitable. Therefore it is not a question of ‘if’ cannabis is legalised for medicinal use, it’s now just a question of when? In which case, the sooner – the better. Remember no public representative wants to be on the wrong side of history.

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