The Thistle and the Rose: a Bacchian analysis of the ‘problems’ of drug use, diversion and the Scottish context

Abstract

Background: Police diversion has emerged as a key strategy capable of reducing the harms associated with criminalisation by providing early interventions and routes to health-focused support for those with drug-related problems. A growing international evidence base points to the potential for police diversion to act as a form of de facto decriminalisation, where drug laws remain in place, but arrest and prosecution are de-prioritised. To date, the contextual factors that could influence effective implementation of such de facto approaches to reform have been underexplored, particularly in relation to plurinational states. The UK offers a valuable opportunity to explore such approaches due to the complexity of the context. The study aimed to examine how diversion, drug use, and the Scottish context have been represented in official UK parliamentary discourses, the extent to which reform could be considered necessary, and the types of reform that could be implemented to meet the needs of the Scottish context. Methods: Carol Bacchi’s (2009) ‘what’s the ‘problem’ represented to be’ (WPR) approach was used to critically examine how policy discourses represented drug use, diversion, and the Scottish context, as specific types of ‘problems’. Data comprised UK parliamentary inquiry reports, Scottish Government policies, legislature, and institutional guidelines related to diversion and drug policy. Documents were purposively sampled and then critically analysed using the WPR framework to reveal conceptual logics related to UK and Scottish contexts. A genealogical analysis was then conducted to explore policy ‘silences’. Results: Several ‘unseen’ barriers to implementing police diversion are described that have received insufficient attention due to the dominant assumption that the UK operates as a single, homogenous legal context. Barriers to implementation include Scots Law, the constitutional principle, and Scotland’s system of independent public prosecution. Conclusions: The study findings suggest that, in Scotland, police diversion cannot be seen to operate as de facto decriminalisation, given that the Lord Advocate has a constitutional obligation to ensure that Scottish police and prosecutorial guidelines do not amount to a de facto change to UK law. Nonetheless, the study concludes that the Lord Advocate has considerable autonomy and power and could agree adaptations to police and prosecutorial practice if diversion were to be reconceptualised and developed into a Scottish approach that aligned with the constraints of the existing system.