Crime and Courts Bill [HL]

Baroness Hamwee Excerpts

Wednesday 4th July 2012 Lords Chamber

Moved by

[Baroness Hamwee]

154ZA: Clause 27, page 27, line 18, leave out “controlled”

[Baroness Hamwee]

My Lords, perhaps I may move Amendment 154ZA. I imagine that the noble Baroness, Lady Meacher, is somewhere on the estate panicking at this moment, but I am happy to move Amendment 154ZA and later she will be able to speak to her own amendment, which we discussed this morning. What I had to say on this group of amendments very much goes to her amendment, which is to leave out the reference to “controlled” drugs.

I do not for a moment condone driving while impaired by drugs—that is what Section 4 of the 1988 Act deals with. I should say that I am speaking for myself. I do not want to put words into the mouth of the noble Baroness, Lady Meacher, but I am apprehensive about legislation which may not be necessary, may not be sufficiently clear, may require technical tools which are not available and may cause more problems than it solves. If my fears are justified I think that the provision does not do justice to the victims of drug-driving and their families.

No doubt the Minister will give us information about the current level of prosecutions for driving under the influence of drugs, the success rate of the prosecutions and the reliability of the testing equipment. Reliability is not the whole of the issue, but is the technology and the equipment adequate? I understand, for instance, that oral swabs to detect drugs are affected by an outdoor setting. I ask this because, of course, errors can lead to unnecessary detentions, to legal challenge and, indeed, to injustice. My amendments largely go to whether the driver’s performance is impaired while unfit to drive through drugs, as Section 4 says—Section 4 is not being repealed—and whether a strict liability offence is appropriate.

There are many very commonly prescribed medicines and over-the-counter medicines which contain patient information in which, in literally small print, there are warnings against driving—I quote from one which I got out of my own bedside drawer—

“if you feel dizzy, tired or sleepy.”

They may refer to dizziness or light-headedness, saying:

“Do not drive if you are affected in any way”.

Some of these warnings are given as part of a warning about the effect if taken alongside other medication or alcohol. This suggests to me at least two problems regarding evidence: did the driver feel dizzy, tired, light-headed or whatever, and did the driver take other medicines? If the level is set at zero this will disqualify, for instance, thousands of people taking very common medicines that control, to take just one example, raised blood pressure. It does not mean that you cannot drive but it does not mean that you can, so the patient is left with a decision.

To answer a criticism before it is made: I believe in taking responsibility for oneself, but sometimes the sensible decision can be very difficult to arrive at. It will be very difficult to disprove impairment; presumably, that is why we are presented with strict liability. Under proposed new Section 5A(3)(b), the defence will be “to show” that the defendant took the prescribed,

“drug in accordance with any”,

and all “instructions”, which presumably means oral as well as written instructions. That seems fairly onerous. I acknowledge that the burden of proof is on the prosecution but there is initially an evidential burden on the defendant under subsection (3) of the proposed new section, which is subject to subsection (4). It all seems to require a lot of investigation and argument.

I have said that the difficulties may be compounded when a patient is taking new medication. Of course, the same may apply if the patient changes medication. Patients with chronic pain who are on a stable dose of a prescription or over-the-counter opioid analgesic may well be over the limit without impairment, while some may be impaired and some not because there is a variable impact on different people. I suggest that it is a fair bet that many of us take, and sometimes rely on, analgesics containing ibuprofen and codeine. They may enable us to drive—actually, they may enable us to drive a debate, given the ergonomic failings of these Benches—by being more in control than one can be if driving in pain. I say that from some experience.

I am quite conscious that parallels can be drawn with people who boast that they can hold their drink, and are quite okay to drive to collect the Sunday papers with an alcohol level that has not quite subsided from the night before, but what all this really amounts to is that prescribed and over-the-counter drugs do not lend themselves to this strict liability offence. There could be unintended consequences, such as the risk of spending a lot of police time on people who do not present a risk on the roads or, indeed, the risk of deterring people from driving who then become dependent on others.

My Amendment 154B proposes consultation with a number of bodies: with the Advisory Council on the Misuse of Drugs, where one is talking about controlled drugs and impairment issues; with the medical profession and pharmaceutical industry, for the reasons that I have mentioned and no doubt others; and indeed with patients. I am not concerned only with prescribed drugs. In the case of controlled drugs, we know that cannabis can be detected a long time after it has been taken and long after the effects have worn off. I do not believe that it would assist the cause of road safety if the application of a law such as this brought the law into disrepute. Finally, one can only too easily see that the police might stop a driver because of a suspicion of some small thing being wrong with their car—such as a failed brake light, which the driver may not be aware of—then test the driver and find a trace of a drug. It is not being too alarmist to say that this could become the new stop and search. I beg to move.

--- Later in debate ---

[Baroness Hamwee]

My Lords, we are being offered caffeine.

It is interesting that those of us who have spoken on this are not opposing the underlying proposition. We are all looking at it as a road safety issue, but we want to get it right. Although I welcome the Minister’s optimism about ironing out the problems, I said to him in the break earlier this evening that the months of the summer recess have a habit of disappearing awfully fast and October will be on us quite quickly. More seriously, I express some concern about being asked to deal with this hugely important and complicated issue while work is still going on.

I do not think it is appropriate to seek to make a lot of points now as I am sure we will come back to this on Report. I had already written down “meeting ?”, but I was thinking that something more than a meeting, such as a roundtable discussion, might be needed so that we can swap ideas and get questions answered. I am sure that there are more questions than have been raised tonight. My noble friend Lord Thomas of Gresford has been muttering to me about evidence and burdens of proof—I did mention burden of proof—and how the prosecution would deal with the issues. Bringing together the medical and the legal would be extremely helpful. I am grateful to the Minister for his suggestion. I will bring the biscuits.

I beg leave to withdraw Amendment 154ZA.

[The Deputy Chairman of Committees (Lord Geddes)]

I understand that the amendment is in the name of the noble Baroness, Lady Meacher, although the noble Baroness, Lady Hamwee, moved it. Does the noble Baroness wish to speak?

--- Later in debate ---

[Baroness Hamwee]

My Lords, it sounds as though in 1986 mere insults would have been quite a relief. I congratulate the noble Lord on the amendment, to which I put my name along with my noble friend Lord Macdonald of River Glaven, who, in a professional as well as a political capacity, has been quoted. I said at Second Reading that I hoped that the Bill might be a vehicle for this move, but I had little optimism that the Public Bill Office would accept the amendment as being within the scope of the Bill. So my congratulations to the noble Lord are doubled on that score.

I can spot when the House is ready to draw its business to a close and I have no doubt that we will have an opportunity to come to this at Report. When he left earlier today, my noble friend Lord Lester muttered to me that he would speak on it at Report. I leave it to your Lordships to decide whether that is a threat or a promise. The House has already heard that taking the word “insulting” out of Section 5 is Liberal Democrat party policy because, in summary, insults should not be criminalised and because of the essential nature of free speech. Our policy would, indeed, go further and take the word out of Section 4A as well. I, and my colleagues on the Liberal Democrat Benches, very much support the amendment.

[Lord Dear]

My Lords, I will take up very little time in your Lordships’ House this evening. The noble Lord, Lord Mawhinney, has made a very powerful case, citing a lot of examples of the way in which this word has been abused within the purview of the Public Order Act 1986. We should, in fact, note that the words have been around since they first went on to the statute book in the Public Order Act 1936. However, it is only in the last 10 or 12 years that the word “insulting” has attracted this sort of attention. As many of your Lordships know, I have taken a close interest in this for a very long time. I have spoken on at least half a dozen occasions in your Lordships’ House; I have tabled numerous Questions for Written Answer and written articles in national newspapers, including one in the Daily Mail online today, always pressing for the removal of this word from the Public Order Act. Over the last two or three years that I have been engaged in this campaign, I have watched public opinion switch from either indifference or opposition through to almost complete unanimity in the public domain. One might almost say that the door is swinging wide open—something that the noble Lord, Lord Mawhinney, has noticed for himself.

I will quickly cite two examples. I spoke on exactly this point at Second Reading during the passage of the Protection of Freedoms Act last November, and again on the fourth day of the debate on the Queen’s Speech on 15 May this year, and reflected that—but for the three-month consultation period which had produced something of a logjam in the process—I would be tabling the amendment myself. On 15 May, the noble Lord, Lord Henley, from the government Front Bench said in reply:

“As for the noble Lord's particular remarks about Section 5 of the Public Order Act, I ask again that he be patient for a little longer. It is a complex issue, and we have to give careful consideration to the views expressed in the 2,500 responses that we have had to the consultation”.—[Official Report, 15/5/12; col. 376]

As has been said, we are still waiting and patience is perhaps being stretched a little but I, for one, am prepared to wait, particularly since we have the prospect of the summer recess in which the Home Office can come to a conclusion on this. I am a little surprised that the noble Lord, Lord Mawhinney, has tabled the amendment now, because it presses exactly the same point that has been pressed before and we are still waiting for the opportunity to get the consultation out of the way and then have a clear run at the issue.

My response is fairly self-evident. I will continue to advocate the removal of “insulting” from the Public Order Act and, to that end, I shall exert all the pressure I can in due course. This is not an amendment that I would have tabled today and I hope that it will be withdrawn at this stage. It would be helpful if the Minister could again signal an urgency in the Home Office to deal with the consultation so that we can properly address the issue at Report.