The Ana Liffey Drug Project (ALDP) has published a report, Ireland and the human rights of people who use drugs,¹ that discusses the Government’s proposed health diversion approach (HDA) to the possession of drugs for personal use within the context of human rights.

Irish policy context

Ireland’s current national drugs strategy reflects a more human rights-based approach than previous strategies.² While human rights are only specifically mentioned once in the document, features that indicate a strategy aligned with human rights include:

It takes a health-led approach to drug use.

It is underpinned by the values of compassion, respect, equity, inclusion, partnership, and evidence-informed.

It incorporates human rights in some elements; for example, introducing supervised injecting facilities and exploring approaches to the possession of small quantities of drugs.

The ALDP report is specifically focused on this last element – responses to the possession of drugs for personal use. On 2 August 2019, the Government announced the launch of the HDA to the possession of drugs for personal use. This approach offers alternatives to criminal prosecutions for the first two instances in which people are found in possession of drugs for personal use. Essentially, the action taken by An Garda Síochána (AGS) will depend on the number of times an individual has been caught in possession.

On the first occasion, AGS will refer them, on a mandatory basis, to the Health Service Executive for a health screening and brief intervention.

On the second occasion, AGS will have the discretion to issue an adult caution.

On the third or any subsequent occasion, AGS will revert to dealing with the person in line with Section 3 of the Misuse of Drugs Act 1977, under which they could receive a criminal conviction and custodial sentence.

Aim of report

The exact detail of the HDA and how it will be implemented are topics currently under consideration by a governmental working group. The ALDP report aims to inform these considerations and to urge a rethinking of the proposed approach. It reflects on the HDA within the context of Ireland’s national and international human rights commitments and related literature.

Human rights

The report identifies three areas of human rights which it maintains are compromised by the ongoing criminalisation of possession for personal use:

1 The right to health – criminalisation creates barriers to accessing health services, for example.

2 The prohibition of discrimination – criminalisation validates and compounds the discrimination experienced by users in the workplace and their communities, for example.

3 The right to privacy – the right to privacy should include the right to use a drug in the privacy of one’s home, for example.

Under each of these areas, the authors cite international literature that highlights the often contradictory position of drug control laws versus health-based policy positions. For example, the ‘inherent conflict between the right to health in the context of the UN human rights treaties on the one hand, and the implementation of the UN drug control regime on the other hand’ (p. 8).

Proportionality

Proportionality is a general principle in criminal law which focuses on the idea that the severity of a punishment should reflect the gravity of the crime. In the context of human rights, it is recognised that individual rights may sometimes need to be restricted by policy or law to maintain a ‘larger or more important imperative – such as national security’ (p. 13). The report argues that in this context the HDA is not a proportionate policy response. First, it will make attendance at a health assessment mandatory – a response described as ‘coercive’ and in contrast to policy responses to all other health issues. More broadly, the criminalisation of possession itself is seen to lack proportionality. The authors argue that ‘there is no reliable “greater good” argument …. criminalisation of simple possession does not deter people from using drugs in any meaningful or consistent way’ (p. 13).

The lack of proportionality is seen to be reinforced when considering the negative impacts of criminalisation for the user. For example, the long-term negative consequences on a person’s housing and employment opportunities. The report cites the Global Commission on Drug Policy:

Punitive drug law enforcement is predicated on the idea that criminalization serves as a deterrent. Notwithstanding its popularity, this theory is not supported by evidence. Instead, research indicates that criminalizing drug users actually worsens drug-related problems.³

Irish Human Rights and Equality Commission Act 2014

In 2014, Ireland became the first European Union member state to introduce legislation that combines equality and human rights as a ‘public sector duty’. This public sector duty requires public bodies to take proactive steps to promote equality, protect human rights, and fight discrimination in relation to their functions and powers.⁴ Section 42 of the Irish Human Rights and Equality Commission Act 2014 (IHREC) states:⁵

(1). A public body shall, in the performance of its functions, have regard to the need to:

(a) eliminate discrimination,

(b) promote equality of opportunity and treatment of its staff and the persons to whom it provides services, and

(c) protect the human rights of its members, staff
and the persons to whom it provides services.

ALDP concludes that the HDA will not be supportive of the public bodies responsible for executing the policy in also fulfilling their statutory obligations under the above elements
of the IHREC Act 2014.

Conclusions

Overall, the report is critical of the HDA and argues that it is not compatible with a human rights-based approach to policy. At its core, the report argues that the proposed HDA will continue to marginalise and stigmatise those experiencing the most harm through their substance use – the most habitual users would be at the most risk of being criminalised for possession on the third or any subsequent occasion. It is therefore seen by ALDP as being contradictory to Ireland’s national drugs strategy; while drug use is seen as a health issue in the strategy, the HDA will perpetuate the criminalisation of users. Furthermore, they see it as unsupportive of the public bodies’ obligations under Section 42 of the IHREC Act 2014.

1 Scharwey M, Keane M and Duffin T (2019) Ireland and the human rights of people who use drugs. Dublin: Ana Liffey Drug Project. https://www.drugsandalcohol.ie/31427/

2 Department of Health (2017) Reducing harm, supporting recovery: a health-led response to drug and alcohol use in Ireland 2017–2025. Dublin: Department of Health. http://www.drugsandalcohol.ie/27603/

3 Global Commission on Drug Policy (2014) Taking control: pathways to drug policies that work Geneva: Global Commission on Drug Policy. https://www.drugsandalcohol.ie/22611/

4 Equality and Rights Alliance (2015) A new public sector: equality and human rights duty. Dublin: Equality and Rights Alliance. 

5 Irish Human Rights and Equality Commission Act 2014. Available online at:
http://www.irishstatutebook.ie/eli/2014/act/25/enacted/en/html