Drug Driving (Specified Limits) (England and Wales) Regulations 2014
Debate between Lord Whitty and Lord Tunnicliffe
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?