Could the Crown Dependencies be the Key to UK Cannabis Reform?

by Jay Jackson
With their nascent medicinal cannabis cultivation industries, Guernsey, Jersey and the Isle of Man are well-positioned to advance reform of Britain’s approach to cannabis.

As independent, self-governing jurisdictions, the Crown Dependencies each have their own Misuse of Drugs legislation, which largely mirrors that of the UK. Hypothetically, they could pass their own legislation to implement local, regulated cannabis markets.

The re-emergence of the hemp industry in Jersey and Guernsey in recent years initiated the development of medicinal cannabis cultivation as a means to diversify the economy in both Bailiwicks, which has also been embraced by the Isle of Man.

Last year, Jersey introduced an amendment to their Proceeds of Crime legislation to enable legitimate investment in legal cannabis companies in specified jurisdictions, while Guernsey has created guidelines to similar effect.

Thousands of patients now benefit from private prescriptions of medicinal cannabis in the Channel Islands, with the number of patients per capita amongst the highest in Europe.

Bearing in mind these advances, the Crown Dependencies are arguably at the forefront of the development of cannabis policy in the British Isles. The Governments of both Guernsey and the Isle of Man have recently committed to undertaking separate reviews of drugs in order to inform future policy.

In July 2020, Guernsey’s Committee for Health & Social Care published an independently commissioned report by Professor Harry Sumnall of the Public Health Institute at Liverpool John Moore’s University to review the “interaction of [the] health and justice system in relation to the possession of drugs for personal use”.

Shortly thereafter, Guernsey’s parliament considered the Committee for Home Affairs’ Justice Review Report and adopted a motion to consider “options for alternative and non-punitive approaches to the possession and use of small quantities of illegal drugs”. The Non-Punitive Approaches Project Board was subsequently established in late 2021. However, the “decriminalisation and/or legalisation of illegal drugs would not be under consideration as part of this work”, primarily due to time constraints.

In order to address the consideration of decriminalisation/legalisation options, the 2023 Government Work Plan included a proposition to instruct the Committee for Health & Social Care to undertake the scoping work of a review of the legal status of cannabis in Q1 2023, which was debated and adopted by the Assembly last month.

Meanwhile, the Isle of Man Government announced this week that the Department of Home Affairs has appointed the Public Health Institute at Liverpool John Moore’s University to “undertake a review of the harms caused by illicit drugs on the Island” with a “specific focus on cannabis”, to be delivered in September 2023.

Jersey has recently held a general election and so it is as yet unclear if the new Government will be considering whether to undertake a similar review of cannabis use. Campaigners in the Island are however optimistic that the new States Assembly will be more progressive with Members receptive to undertaking a progressive approach to cannabis.

Given the parallels between the approaches of the Guernsey and Isle of Man Governments in commissioning the Public Health Institute at Liverpool John Moore’s University to review the drug situation in their islands, it would be prudent for the Crown Dependencies to collaborate on addressing cannabis issues.

There is also an opportunity to collaborate with the recently launched London Drugs Commission, which has been setup to “examine the effectiveness of the UK’s drug laws, with a particular focus on those governing cannabis”. The chair of the Commission, Lord Charlie Falconer QC, was formerly the Secretary of State with responsibility for the Crown Dependencies and so he is well-placed to coordinate a collective review.

With Germany and other countries currently working on their own reviews in preparation for legislation to legalise cannabis, there will soon be an abundance of literature available to facilitate a combined review of cannabis by the Crown Dependencies.

There is no need to re-invent the wheel. The opportunity for collaboration should be embraced to share knowledge, avoid duplication of work, and to also provide a united front in raising the issue of cannabis legalisation with the UK Government. As a signatory of the 1961 UN Single Convention on Narcotic Drugs (CND), the UK is responsible for compliance with the terms of the Convention of not only the Home Nations but also the British Overseas Territories and the Crown Dependencies.

The legalisation of cannabis in any of the Crown Dependencies would likely lead to the UK being deemed as being in contravention of the Convention and potentially liable to receiving sanctions from the International Narcotics Control Board (INCB), unless a path can be found that conforms with the Convention’s intentions.

Earlier this year, the British Overseas Territory of Bermuda passed legislation to legalise cannabis, but Royal Assent was withheld by the Governor and referred to the UK Foreign Secretary due to concerns over it’s compatibility with the UK’s obligations under the UN CND.

This situation has been described as a potential constitutional crisis for Bermuda. It remains to be seen whether the Foreign Secretary, Liz Truss, will provide assent to the legislation in the coming months. Given that she is now in the running to be the next Prime Minister, she will likely be seeking to avoid conflict with either the UN or the British Overseas Territories prior to the election.

Rather than taking Bermuda’s somewhat adversarial approach to addressing the question of compliance with the UN CND, it would be more suitable for the Crown Dependencies to cooperate with the UK Government on a potential way forward that is acceptable to all parties.

A possible approach to cannabis legalisation that may be compatible with the Convention could be for the Crown Dependencies to act as a test-bed for potential UK reform. Luxembourg, Switzerland and The Netherlands are currently investigating different aspects of adult-use cannabis, which they have specifically referred to publicly as “trials” in order to appease the INCB. As distinct jurisdictions, Guernsey, Jersey and the Isle of Man could potentially introduce legislation to facilitate trials of regulated adult-use markets supplied by local cultivators.

Alternatively, it may be possible for the Governments of the Crown Dependencies to implement a form of inter se treaty modification. This is a recognised instrument under the 1969 Vienna Convention on the Law of Treaties for “two or more parties to a multilateral treaty… to modify the treaty as between themselves alone”.

While it is unclear whether this instrument would be directly available to the Crown Dependencies due to the unique way in which the UN CND has been extended to them, this avenue should be investigated as a potential model to enable reform that is compatible with the Convention.

These discussions are crucial to evaluating how cannabis may be regulated within the confines of the UN Single Convention on Narcotic Drugs. The peculiar nature of the Crown Dependencies and their position in relation to the Convention might just provide a means for influential cannabis law reform.

Simon Harrison is a long-time advocate of cannabis and is the Coordinator of End Cannabis Prohibition Jersey, which campaigns for reform of the Island’s approach to cannabis. Tweets @ecpj_campaign

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