Drug Driving (Specified Limits) (England and Wales) (Amendment) Regulations 2015

Earl of Dundee Excerpts

Wednesday 11th March 2015 Grand Committee

[The Minister of State, Department for Transport (Baroness Kramer) (LD)]

My Lords, this instrument is being made to include amphetamine with a limit of 250 micrograms per litre of blood in the new drug-driving offence of driving with a specified drug in the body above a specified limit. The new offence was made in the Crime and Courts Act 2013, which inserted a new Section 5A into the Road Traffic Act 1988.

The Drug Driving (Specified Limits) (England and Wales) Regulations 2014 were made on 24 October 2014 and specified 16 other drugs and their limits, and the new offence came into force in England and Wales on 2 March. As noble Lords are aware, the Report on the Review of Drink and Drug Driving Law by Sir Peter North concluded that there was,

“a significant drug driving problem”,

and recommended the new offence and the inclusion of amphetamine. The expert panel, in its report published in March 2013, also recommended the inclusion of amphetamine in the new drug-driving offence. It quoted the Driving Under the Influence of Drugs, Alcohol and Medicines project—the European DRUID project—suggesting that amphetamine represents a medium to high risk of a traffic accident. The DRUID researchers did not find an impairment effect at therapeutic doses, but a negative driving performance could be detected at high doses.

As noble Lords are probably aware, the Government have considered carefully what the appropriate level should be for amphetamine. The expert panel recommended a limit of 600 micrograms per litre of blood if we were to take an approach where the risk of a road traffic collision is most likely to occur. However, while amphetamine has significant medical use, the Government had concerns over the amount of illegal use. The expert panel described it as,

“an illicit substance, a long standing member of the drug scene”.

The approach to setting a limit for this drug was therefore not as clear cut as for others. A zero-tolerance approach to illegal drugs such as cannabis and cocaine was taken, while a road safety risk approach was taken to drugs more associated with medical use. The Government therefore used the consultation in summer 2013 to seek further views and evidence on what a suitable limit might be.

Many of the responses proposed a limit much closer to the zero-tolerance approach, so we reconsulted on a limit of 50 micrograms per litre of blood from December 2013 to the end of January 2014. However, we received several objections from the medical profession to the proposed limit. In particular, specialists in attention deficit hyperactivity disorder, more commonly known as ADHD, for which amphetamine is a recognised treatment—many have told me that it is a primary treatment—argued that the condition affects the ability to concentrate, and while patients represent an increased road safety risk when unmedicated, they are just as safe as the general population when taking their medication. These respondents backed up their arguments with research. Their concern was that prescribers and ADHD patients must not be discouraged from prescribing medication or taking it. We recognise that adult ADHD often goes undiagnosed or treatment of it is stopped after having it as a child. This represents real road safety risks, which need to be addressed through treatment. We therefore concluded that the proposed limit of 50 micrograms might discourage those with ADHD seeking or continuing with treatment. It is therefore much more appropriate to set a limit that is above the therapeutic range that ADHD sufferers are most likely to be prescribed and below the level of those most likely to be abusing medication.

After holding extensive informal discussions with specialists in ADHD and with the Secretary of State’s honorary medical advisory panel on alcohol, drugs and substance misuse and driving, we have agreed that a limit of 250 micrograms per litre of blood is the most appropriate limit. The advisory panel quoted the analysis of 2,995 blood samples taken between 2008 and 2012 across the UK in suspected drug-driving cases showing that median and average concentrations of amphetamine were 270 and 456 micrograms per litre of blood respectively. The Government have, therefore, concluded from their consultation with the above ADHD specialists and the advisory panel that the level of 250 micrograms would successfully balance the legitimate use of amphetamine for medical purposes against its abuse by those who represent a risk on the road as a result of taking amphetamine.

I recognise that in July and September last year, during the debates on the regulations that specified the other 16 drugs and their limits, the Government indicated that they intended to reconsult on a limit for amphetamine, but given the extensive discussions that we have held with medical stakeholders, we take the view that we have now had sufficient opportunity to consider the views of all of the relevant parties and that conducting a third formal consultation on a limit for amphetamine is no longer appropriate or necessary.

As the new drug-driving offence commenced on 2 March, the Government believe that it is important that amphetamine is added to the list of drugs as soon as possible so that those who abuse amphetamine and who continue to drive and put lives at risk can expect to be caught and prosecuted for the new offence. I acknowledge that there is not a roadside screening device for amphetamine, only for cannabis and cocaine, but should there be any suspicion of the consumption of this drug or any other specified drug, a blood test can be administered and a blood concentration level of above the specified limit will result in prosecution. Specifying amphetamine will create certainty in the market and enable manufacturers to consider research and development of roadside screeners for this drug, which is one of the more prevalent drugs in drug-driving cases. I urge noble Lords to agree to include amphetamine at the limit proposed so we send a strong message that this House, Parliament and wider society will not tolerate those who persist in drug-driving and the threat they pose to other road users. I therefore recommend approval of these regulations. I beg to move.

[The Earl of Dundee (Con)]

My Lords, all of us will welcome these new regulations, which my noble friend presents. We know already that there are two patterns; the first is that of those who have been prescribed amphetamine medically, whose level will almost certainly be under 200 micrograms per litre of blood tested; the second is that of those taking illicit drugs, normally in excess of 270 micrograms per litre of blood. Therefore, it makes sense, as my noble friend points out, and as the regulations stipulate, to have a limit of 250 micrograms per litre of blood—below the second measure and well above the first.

On saving lives and reducing road accidents caused by drugs, other recent interventions are also to be welcomed. These include the recent publicity campaign as well as new screening devices for drugs. However, there are still far too many road accidents. As we are aware, a high proportion is caused by drivers between 18 and 25 years of age. Will my noble friend say what action she and her colleagues might be prepared to take? One such, which has proved to work well in Australia as well as in a number of other states, is a restriction on carrying passengers applied to those in their early of years of driving.

Will the Minister also say what plans we have to help raise road standards, both here and internationally? In the World Health Organization, there is now a technical consultation committee on drugs and driving. Might its focus be widened to include drink as well as drugs; and apart from those substances, could international scrutiny be developed to compare notes on all pragmatic measures to help reduce accidents?

In Europe we have the DRUID project, to which my noble friend referred. What has this achieved lately? Which further steps, initiatives and co-ordination may be desirable to improve its results?

[Lord Rosser (Lab)]

I thank the Minister for her explanation of the regulations, which specify amphetamine as a controlled drug for the purposes of drug-driving and sets a limit above which it will be an offence to drive. We support the regulation but I have one or two questions about the Explanatory Memorandum—which, before I go any further, I accept may reveal that I have not understood it.

Paragraph 7.3 of the Explanatory Memorandum says:

“Fewer than 2,200 proceedings were brought in 2013 under the existing section 4 impairment offence, with the proportion of guilty findings from the proceedings at only around 54%. This is compared to the 44,700 proceedings for the section 5 drink driving offence and the 96% proportion of guilty findings”.

However, the Explanatory Memorandum for the Crime and Courts Act 2013 (Consequential Amendments) (No 2) Order 2015, which deals with penalties and was debated on 24 February, contains other figures. I am not clear on this. Can the Minister indicate whether I am comparing apples with apples or apples with pears? Paragraph 7.1 of that Explanatory Memorandum says:

“Fewer than 1,200 proceedings were brought in 2013 under the existing section 4 RTA ‘impairment offence’”.

It goes on to refer to the proportion of guilty findings from the proceedings of being unfit through drugs as being only around 72%, whereas the Explanatory Memorandum for these regulations quotes a figure of 54%. Today’s regulations refer to a comparison of 44,700 proceedings for the Section 5 drink driving offence, whereas the February order said this is compared to the nearly 47,000 proceedings in relation to that RTA offence. I fully accept that I may not be comparing like with like, but I would be grateful if the Minister could comment on the different figures and whether I am making a fair comparison—in which case I am asking why they are different—or whether the figures relate to different issues, in which case it would be helpful if the Minister could explain in what way they differ.

In her detailed and thorough explanation of the background to these regulations, the Minister made reference to the increase in the original intended limit of 50 micrograms per litre of blood to 250 micrograms, and gave the reasons for it. The reasons for it, basically, were to address the point of not discouraging the legitimate use of amphetamine for medical purposes. Bearing in mind the original limit of 50 micrograms, which I think the document says was favoured in a majority of responses, I am not clear about to what extent one would expect an individual’s driving to be further impaired if they were at the new proposed limit of 250 micrograms per litre of blood rather than 50 micrograms. I appreciate that the Minister sought to address this in her introduction, but I would like a bit more clarity.

--- Later in debate ---

[Baroness Kramer]

It is only part of the argument because that would be true for ADHD patients. We took the issues back to the expert panel, which clarified that the point at which driving risk becomes significant with amphetamine is 270 micrograms. We did not want to set a line at 270. We wanted to have a little bit of a margin. The medical community felt that doctors could safely prescribe within 250. With 270 defined by the expert panel as the level at which risk would significantly increase, the Government coalesced around the 250 number. Obviously many people looking at enforcement discourage the use of amphetamine at all, and that is one of the attractions of using the lower number. In the process of pursuing all this, we recognised that setting it at 50, which had been one of our early thoughts in this process, was too low. We were not gaining anything in terms of safety, other than the deterrent effect, and we were potentially encouraging wrong decisions by people who have ADHD and need to take medication. They might end up not taking it because of their concerns over the benchmark.

Going back to the expert panel that advised the Secretary of State took a significant amount of time. That is what brought us much closer to this deadline. With the law going into effect on 2 March, it is appropriate for us to come forward with the decision rather than go through a consultation that we have no reason to believe will yield any information that we have not already received in the course of the first two consultations and the informal work that has taken place.

I agree very much that that has been a complicated process. It is difficult to describe and sometimes frustrating to have to listen to, so I apologise for that.

I also have to say to the noble Lord, Lord Rosser, that—as always—he has picked up on a genuine typo and error within one of the explanatory memoranda, although I am now uncertain which one it is. We can confirm it later. He was talking about the percentage of convictions. The figure 72% applies to 2013—it is a typo in whichever document that said it was 2012. The figure 54% applied to 2012, so it was a failure to change the date from one document to the other. If he would like, I am happy to ask officials to write to him just to provide some clarification. This has been a very good lesson in the need to double check numbers although I have to say that, given the complexity of this, officials have done some brilliant work.

I have covered the key questions from the noble Lord, Lord Rosser. I now come to those from my noble friend Lord Dundee who raised the question of how to improve road safety standards here and internationally, with drug-driving as an element of that. In the Deregulation Bill we removed some loopholes around drug-driving and drink-driving provisions that allowed people to disregard roadside screening and insist on a blood test, during which time their levels could have changed. Loopholes like that have been removed within by Deregulation Bill.

I have spoken in debates in the House about whether we should be taking further actions to limit the circumstances in which young or new drivers can drive. It has also been a difficult balancing act because access to training, education and jobs frequently requires young people to drive. Indeed, we also want them to participate in the workplace more generally. The direction that we have chosen to go in is that rather than restricting the passengers they can carry or various other kinds of restrictions, we are looking at trialling work going on now with the insurance companies looking at the use of telematics. I can send the noble Lord all the details. As I have described in the House, telematics is a gizmo which sits in the vehicle and communicates with the insurance company to give an ongoing, running assessment of the quality of driving. Is it speeding, is it rough, is it erratic? All those kinds of behaviour can be fed back into the car itself. Anyone looking to purchase insurance and going on to the various insurance websites will find that if they permit telematics to be installed in their car they will in fact nearly always get a much cheaper insurance package. That looks to be the direction. We are trying to verify that there is a genuine relationship between the feedback from the telematics and safer driving. As we get the answers to that, that may well provide us with the direction to go so that we let young people have their freedom but yet have ways of ensuring that driving standards improve.

[The Earl of Dundee]

I am most grateful to my noble friend. I am interested to hear about that process from which, as she points out, sooner or later there will some analysis. That will help us to know what is good about it. Are any other states doing the same or are we the first country to do this?

[Baroness Kramer]

I cannot properly answer that question. Certainly we are one of the leading countries in telematics. I will be glad to write to my noble friend to cover these issues, which are of interest, significance and importance.

My noble friend Lord Dundee also raised the question of international standards and the role that the Government play through international organisations to impact on those standards. Departmental officials are part of the WHO technical consultation group on drug use and road safety, of which representatives of the DRUID project are a part. This group first met in December 2014 and the WHO now recognises that more needs to be done globally to combat drug-driving. It has informed the DfT that this new offence and our extended THINK! campaign—which I will mention in a safety context in a moment—are excellent examples for other countries. Approximately 20% of countries have no drug-driving offence whereas virtually every country has a drink-driving offence. This offence is not yet internationally accepted.

Our THINK! campaign is targeted particularly at those groups of the population which we know from historical experience are more likely to take the risk of drug-driving—young men, I am afraid—and communicates with them through their chosen media and the way in which it focuses its messaging. We are using that important mechanism of communication so that people know that this is an offence and that they are a risk in that sense, and to help them understand the risks associated with drug-driving.

[The Earl of Dundee]

On the issue of international efforts, comparisons and best practice, the technical committee of the World Health Organization is to do with substances. The DRUID project’s focus may be wider—I do not know. It might simply be to encourage a comparison of notes to reduce accidents in whatever way that can be done. Apart from the DRUID initiative in Europe and the World Health Organization’s international one for substances, there could even be a third process internationally that seeks to bring together representatives from a number of countries to talk through what they think could work best and how there might be convergence. Can my noble friend say what is happening in this way and distinguish between various endeavours?

[Baroness Kramer]

I think we have exhausted my capacity for guidance. However, these are important issues. My noble friend is right, the international exchange of information is always significant: we learn from others and share what we learn with others. There is satisfaction in being praised by the WHO for the direction that we have taken. I am sure that others will watch this process as closely as we watch their processes. If my noble friend will indulge me, I will follow up with a letter. That will be more appropriate and will ensure that I am not misleading him or leaving out important information.