Drug Driving (Specified Limits) (England and Wales) Regulations 2014
Lord Popat
That the Grand Committee do consider the Drug Driving (Specified Limits) (England and Wales) Regulations 2014.
Relevant document: 6th Report from the Joint Committee on Statutory Instruments
Lord Popat (Con)
My Lords, I beg to move this Motion standing in the name of my noble friend Lady Kramer on the Order Paper. The draft regulations are being made to specify the drugs and the limits over which it will be an offence to drive or be in charge of a motor vehicle in England and Wales. As noble Lords are aware, the review of drink and drug-driving law by Sir Peter North concluded that there was a large drug-driving problem and recommended this new offence. Drivers impaired by drugs kill large numbers of people: there could be as many as 200 drug- driving related deaths a year in the United Kingdom. Figures show that a drug-driver has one-fiftieth of the chance of being prosecuted compared to a drink-driver and yet European evidence suggests that drug-driving is about half as prevalent as drink-driving—so enforcement related to drugs is disproportionately low. These regulations will thus enable more effective law enforcement.
The drugs included in the draft regulations have been recommended by the expert panel in its report, Driving Under the Influence of Drugs, as being the drugs that pose the greatest road safety risk. The Government have additionally included LSD, as while the expert panel stated that,
“LSD usage in the UK driving population is unknown”,
it also stated:
“The use of LSD is not likely to be compatible with the skills required for driving”.
The Government consider that even if there are just a small number of cases, it is worth including LSD as the police would then have the powers to progress these cases.
The Government have also taken note of noble Lords’ concerns about the potential impact on patients in previous debates during the passage of the Crime and Courts Bill, which introduced a new offence by breaking down morphine into a subdivision of its metabolic marker, which is called 6-MAM. This will separate heroin users from those taking opiate-based medication. However, we have not included the expert panel’s recommendation on amphetamine. We intend to do that at a later date but, first, we aim to reconsult later this year on a limit for amphetamine. I apologise that I could not pronounce that medical word. I am not a doctor by profession and I have taken on this order at very short notice. We accept that there is significant medical use and that having a low limit might discourage ADHD patients, in particular, from taking their medication. Evidence came to light during the consultation of a large study, published on the day before the consultation closed, showing that unmedicated ADHD patients represent a road safety risk. I believe that this demonstrates to noble Lords that the Government have been listening to the medical profession and want to ensure that all patients continue to take their medication and to drive, providing that they are not impaired.
The Government have also included in the draft regulations the road safety risk-based limits, as recommended by the expert panel, for those drugs most associated with medical uses. In most cases, this will be above the normal therapeutic ranges, so patients would not provide a positive result if any blood test was taken. The Government recognise that there may be some patients who have built up tolerances to higher doses, and who could be above the specified limits and be safe to drive. There is a medical defence available to those drivers and we want to ensure that they are dealt with swiftly at the roadside to reduce any inconvenience to them.
This is why the Government published guidance to healthcare professionals on the new drug-driving offence earlier this month, which includes an explanation of how to raise a medical defence early on in any dealings with the police in relation to driving. If the police view is that they are impaired for driving, the existing Section 4 offence will apply. The guidance has been widely circulated to medical bodies and patient support groups, and we are confident that it will reach those providing the advice and, ultimately, their patients. However, we will be monitoring the new offence, and bodies such as the British Pain Society and the Royal Pharmaceutical Society have agreed to assist us and report directly to our researcher if any negative impacts emerge.
Finally, rather than setting limits for eight illegal drugs at the expert panel’s recommended limits where a road safety risk applies, the Government have proposed a zero-tolerance approach as they believe that it would be unacceptable to the wider public to set limits where it is okay to take a certain amount of illegal drugs and drive. Zero tolerance does not mean zero limits, as we do not want to provide an opportunity to any defence lawyer stating that their client was exposed to others’ use of a drug, such as by passive inhalation. That is why I am proposing to the Committee limits for these eight illegal drugs as above “accidental exposure”. These limits have been provided by an expert advisory group, which includes some of the members of the expert panel, such as Dr Kim Wolff, to whom I am most grateful for her hard work on the matter. Those drugs and their limits have been supported in a public consultation, and I believe that we are taking a balanced and pragmatic approach.
Lord Berkeley (Lab)
My Lords, I have a question or two for the Minister on these draft regulations. I am glad that he had difficulty pronouncing the names of some of those controlled drugs, because I certainly would.
First, I think that it is a very good thing that the regulation is being brought in; we have all been debating for years having some limit for driving under the influence of drugs, as we once had for a long time for drink. How will these drugs be detected? Can it be done at the roadside, or will you have to go back to a police station, with all the fuss that that entails? Who can stop, detect and, if necessary, charge a driver? Presumably, PCSOs cannot; they can fine only bicycles and not cars anyway, but it would be interesting to have an answer for that. My third and most important question arises because 16 different drugs are listed here. Surely if you mix the lot, it is a bit more serious, even if it is under the limit, than if you just take one. I know nothing about it at all, but how will that be dealt with? If you exceed the limit on none of them but mix them all together, you might still be under the influence. No doubt the expert panel has considered that, and I would be glad to hear the Minister’s comments.
Lord Whitty (Lab)
My Lords, I am pleased to see greater specification in this area, but I am slightly confused about both how the levels apply and how we will deal with issues such as those raised by my noble friend. Clearly, a cocktail of these drugs, if three or four are detected, is more dangerous than the level for a single one. I do not know any more about it than my noble friend.
Lord Whitty
When I was a Minister, I was certainly not allowed to know a lot about it. However, some of them are more detectable than others. Included in the list—I will not attempt to spell it out—are drugs that relate to cannabis. The problem with cannabis is that it stays in the system for a very long time but is probably not active after a few hours. Therefore, it is difficult to treat in the same way as, for example, cocaine or diazepam. I wonder whether the same process of testing applies to all the drugs. I also wonder whether the reason why what I regard as unfortunate the changes in relation to alcohol detection—trying to simplify the roadside and the police station tests, thereby laying them open to challenge rather more than the present system—applies also to these drugs tests. Some drugs are detectable at the roadside, as I understand it; others are not.
As a throwaway question, as the Government are addressing those limits, why on earth are they not addressing the current alcohol limit, which is still probably the greatest—even if, thankfully, declining—cause of major accidents due to drugs in this country? Our level is considerably higher than that in almost every other European country.
Lord Tunnicliffe (Lab)
My Lords, I have been recently drafted into the opposition transport team and handed the task of a simple one-page order to take through the Committee. Unfortunately, unlike my noble friends here, it would be unacceptable for me to say that I know nothing about the order. Therefore, rather bravely, I drove myself towards the impact assessment and discovered that the ratio between the impact assessment and the order was the largest I have yet come across, there being 31 pages in the impact assessment and barely one page in the order. However, I have struggled with it and I have some comments to make. I apologise to noble Lords from the energy lobby who are waiting patiently for the next business.
The order, essentially, contains a list of two lists of eight drugs—it would have been easier to understand if it were split into two eights—comprising eight drugs that are illegal and eight which are, for want of a better term, therapeutic. The eight illegal drugs are set at a zero-tolerance level and the extent to which the figures are not zero is the experts’ recommendation of the levels that might be detected through accidental secondary inhalation and so on. They are, I am assured by the impact assessment, extremely low levels—de facto, zero.
Like my noble friends, in general I support the thrust of this policy. However, I am concerned about the extent to which it has any substance. In my view—I do not know whether the Minister agrees with me—the order is a manufacturer’s specification. In other words, it gives some numbers for the people who are developing detection equipment to work to. Clearly, for the equipment to work it has to be able to operate in the range implied by the factors in the order.
The impact assessment, all 31 pages of it, is frankly an impact assessment for the whole policy thrust and—this may receive more approval from my colleagues than initially from me—introduces the concept of zero tolerance. It makes a conscious decision to move away from the concept in the drink driving recommendations, which is an attempt to specify a level that creates a level of impairment that has road safety consequences. Essentially the drink-drive limits are consequential limits; the limits for the eight illegal drugs are zero-tolerance limits. The impact assessment goes through the debate as to why that level has been chosen and concludes that creating a meaningful relationship between a level in the blood and impairment—given the different metabolisms that will have to be dealt with and so on—is not practical; and that the only practical way of dealing with the eight illegal drugs is the so-called zero-tolerance limit. I hope those sitting behind the Minister will pass him a note if I have got that wrong, but I think I have drawn the right conclusions.
On page 24, paragraph 84, of the impact assessment, there is a less than ringing endorsement of the policy. In referring to a cost-benefit assessment it states:
“The Best estimate is that there is a Net Cost but has the potential to provide society with wider benefits in taking a zero tolerance approach to illegal drugs that are not captured in Table 11”—
which is the summary of the analysis. It continues:
“However, given the uncertainties around casualty savings and costs and thus the vast range, there could still be a considerable net benefit”.
In other words, the 31 pages come to the conclusion that the best case is marginal. In fact, the traditional cost-benefit is negative.
Paragraph 85 goes on to say:
“In considering the approach to drug driving the Government also needs to take account that drugs matter to the whole of society and not just road users. From the crime impact on local neighbourhoods to the corrupting effect of international organised crime, drugs have a profound and negative effect on communities, families and individuals. A zero tolerance approach to illegal drug driving would assist the Government’s wider drug strategy”.
In other words, something is directed at driving which has a pretty iffy cost-benefit case about it but wider criminality issues are prayed in aid.
Therefore, I have two questions for the Government on this. First, will this policy happen? I ask that because, for it to happen, suitable testing equipment has to be manufactured at levels of cost and reliability such that police forces will buy it and use it. There are comments here and there in the impact assessment and there is the Library review of it. As far as I can see, there is one machine that detects three substances and it sort of works but will not work outside. Therefore, the provision of testing equipment is very iffy at the moment.
The second question is: even if a machine can be produced, will the police use it? Under the heading “Police costs” on page 17 of the impact assessment, it is stated:
“We have not considered the true opportunity costs of police time, as it is unrealistic to determine how police forces will decide to re-allocate resources in response to the new legislation”.
In these times of constrained police resources—for instance, the number of police officers between 2010 and 2013 went down by more than 15,000, some 11%—how would a chief constable deploy his resources other than on an opportunity-cost basis? At the end of the day, he has to look at the crime in his area and the good that policemen on patrol do, and he has to look at the ratio of the cost and the benefit of providing that. The policy as analysed by the impact assessment would not naturally fall very high in any analytical approach to that allocation of resources.
Therefore, do the Government really think that police forces are going to buy this equipment, which is not yet developed, and use it to any significant extent, given that it has a negative cost-benefit case, that the target group will be young people and that many of the people tested will be innocent, with the whole issue of then creating alienation?
The analysis divides into two. It centres on the eight illegal drugs and it also talks about eight therapeutic drugs. Here, the approach is, for want of a better term, one of impairment. I have read the parts of the assessment that cover this. It is essentially set above a zero limit so it does not interrupt the use of these drugs in therapy. It suggests that medical professions—clinicians and the pharmaceutical industry—will have to adapt by explaining to patients about the limits and that the drugs they are taking may take them in that direction, so there is some cost there, but it seems quite sensibly balanced.
Finally, the impact assessment and the regulations are silent on legal highs, which we all know is an emerging issue. If the Government are to successfully introduce this legislation, I should like to know whether they have thought about how they are going to drive illegal highs into it. In simple terms, will the kit be available, will it work and will it be affordable? Will police forces be willing to commit resources to prosecute these laws, given the many problems that they will face?
Lord Popat
My Lords, I thank the noble Lord for his questions and I shall try to cover as many of them as I can. Failing that, I will be very happy to write to him.
This is something new for us. It is no different from what happened when we introduced legislation on driving with excess alcohol in 1967. The legislation will take some time to mature, but I am sure that these regulations are a good place to start. Drink-driving is dangerous and so is drug-driving.
Let me start with the question asked by the noble Lord, Lord Berkeley, on how we detect when somebody has taken drugs. The police will test first for alcohol and they will know the extent of the alcohol taken by the driver. If he comes out positive on the excess alcohol test, the chance is that a similar test will occur to determine if he has taken drugs. If there is no screening device to test the driver, if the police suspect that he has taken drugs, he will be taken to the police station for a blood test. Only the police can arrest and charge him for driving under the influence of drugs. Another question raised by the noble Lords, Lord Berkeley and Lord Whitty, was about what would happen if someone is under the limit but has mixed their drugs. If impairment exists, Section 4 can be used to arrest the driver.
The noble Lord, Lord Whitty, asked: why not address alcohol and drug limits? That is an important question. Drugs are much more complex than alcohol in many ways. It is very difficult to ask the police to deal with a new, complex drug-driving offence and any changes to the alcohol limit. The police need to focus on the new offence of drug-driving first. This is very much in the initial stage, given the time that the police will need for the necessary training in how to detect people and what action to take when they find somebody under the influence of drugs under the new legislation. The Government asked the expert panel for advice on risk-based limits and the evidence was that the police will more or less be able to detect that a person is under the influence of drugs more easily by just looking at his body language and his face. Often, his eyes will be red. With alcohol, there is an ability to test whether the driver is under the influence of alcohol.
The noble Lord, Lord Tunnicliffe, raised the issue of zero tolerance. The Government have a zero-tolerance approach to illegal drug use. Considering the panel’s recommendation, it is clear that the zero-tolerance approach in the new drug driving offence will send the strongest possible message that you cannot take illegal drugs and drive. The Government made it very clear in their consultation that the zero-tolerance approach does not mean zero limits, as we need to rule out any exposure, for example, through passive smoking.
Judging from the impact assessment, there is a great potential to reduce drug taking in the first place. We provide some examples of where it may arise. It is extremely difficult to monetise something when we cannot be sure of the causal link. It is not possible to disentangle the two effects. It would not be right for the department to take the credit and attempt to monetise it. Will this policy actually happen? A number of pieces of equipment will be tested by the Centre for Applied Science and Technology at the Home Office. We expect these to be approved in time for the commencement of the new offence.
I say to the noble Lord, Lord Tunnicliffe, that we responded to drink-driving, and we consider that the drug-driving offence must be proportionate to any serious risk to road safety. Drug takers can be as dangerous as drinkers. The most important thing is to make sure that the roads are safe for the people who use them.
I guess that I have covered not all but some of the points raised. Noble Lords will, I hope, forgive me, as I came to these regulations at very short notice, but I shall be very happy to write to noble Lords. I will go through Hansard, speak to the department and make sure that I responded properly on this subject. It is not an area in which I specialise, so noble Lords will have to forgive me for that.
We owe it to the victims of drug-drivers, such as the schoolgirl Lillian Groves, whose family have campaigned tirelessly for this new offence following the death of their daughter through drug-driving in 2010. I hope that this instrument will make a difference to the number of accidents that take place; an estimated 200 deaths a year are due to drug-driving.