Drug Driving: Proposed Regulations – Analysis of Consultation Responses

1. Introduction

1.1 This is a report of the findings of a joint public consultation undertaken by the UK Government and the Scottish Government in relation to proposals for new regulations on drug driving limits. The consultation was carried out in 2013 to inform secondary legislation related to the Crime and Courts Act 2013 ('the 2013 Act').

1.2 This report relates to Scottish responses to the consultation and will inform decisions about whether Scottish regulations should be brought forward under the 2013 Act and if so, what policy approach should be adopted for the setting of drug driving limits for specific types of drug. Under the 2013 Act, it is for the Scottish Government and Scottish Parliament to decide whether a new drug driving offence should be introduced in Scotland and if so, what the limits for specified drugs should be.

1.3 Under the Road Traffic Act 1988, it has long been illegal in the UK to drive when impaired by drugs. However, it has been difficult to prosecute offences under this legislation because of the need to demonstrate actual impairment - unlike with drink-driving offences, where it has been possible to collect clear evidence of a driver being 'over the limit'. The 2013 Act is an attempt to overcome this difficulty. It introduces, for the first time, an offence of driving under the influence of a specified drug over a specified limit.

1.4 In order to determine which drugs should be included in the legislation, and what the appropriate limits for each drug should be, the UK Government set up an independent expert panel in early 2012 to consider, among other things, how it will be possible to set levels for the impairing effects of specific drugs on someone driving, and how to measure these levels. The expert panel's report, Driving under the influence of drugs, was published in March 2013.^[2]

1.5 Following publication of the expert panel's report, the UK Government and the Scottish Government then undertook a joint public consultation, setting out three different options for the policy approach to be followed.

1.6 The consultation document was published in July 2013,^[3] and a later consultation was carried out in England and Wales specifically in relation to proposed limits for amphetamine. The findings of both these consultations, in relation to England and Wales, were published in March 2014.^[4]

1.7 At the Scottish Government's request, the initial (July 2013) consultation was extended to Scotland, and it was agreed that the Scottish responses would be analysed separately by the Scottish Government. This approach would allow the Scottish regulations to take into account the views of people in Scotland and the particular context of Scotland's drug strategy. Thus, the consultation analysis report referred to above, does not include an analysis of the Scottish responses.

1.8 On 24 October 2014, regulations were laid before the UK Parliament which specify drug driving limits for 16 different drugs (8 prescription and 8 illicit drugs) in England and Wales. These will come into force on 2 March 2015.

About the consultation

1.9 The consultation document set out three different policy options for the regulatory approach to be followed, and discussed the pros and cons of each option:

• Option 1: This was both the Scottish and UK Governments' preferred option. It takes a zero tolerance approach to eight controlled drugs (including LSD) which are mostly associated with illegal drug use, and a road safety risk based approach to eight controlled drugs which have medical uses. In taking a 'zero tolerance approach' to the eight illegal controlled drugs, the Government proposed to set the limits at a level that would not result in prosecution of someone who had consumed a very small amount of the drug in question inadvertently - referred to as the 'lowest accidental exposure limit'). The limits proposed for the other eight controlled drugs that have medical uses are based on recommendations made by the expert panel.
• Option 2: Takes the expert panel's recommendations in full - specifying 15 controlled drugs (not including LSD) and setting limits based on evidence of impairment to driving and / or on evidence of increased odds of a road traffic accident and associated deaths and injuries.
• Option 3: Takes a zero tolerance approach to all 15 controlled drugs and LSD.

1.10 The limits given in the consultation document for each drug were in microgrammes per litre (g/L) of blood. Table 1.1 below sets out the Government's proposed limits for the eight illegal and eight prescribed drugs under Option 1.

Table 1.1: Government's proposed limits for eight illegal and eight prescribed drugs

1.11 The consultation also sought views on what would be a suitable limit for amphetamine which has medical use in specific circumstances, but which is also often taken illegally.

1.12 The consultation contained eight questions. These were:

• Q1: Do you agree with the Government's proposed approach as set out in policy option 1? If not please provide your reason(s).
• Q2: Do you have any views on the alternative approaches as set out in policy option 2 and 3?
• Q3: We have not proposed specified limits in urine as we believe it is not possible to establish evidence-based concentrations of drugs in urine which would indicate that the drug was having an effect on a person's nervous system. Do you agree with this (i.e. not setting limits in urine)? Is there any further evidence which the Government should consider?
• Q4: Is the approach we are proposing to take when specifying a limit for cannabis reasonable for those who are driving and being prescribed with the cannabis based drug Sativex (which is used to treat Multiple Sclerosis)? If not what is the evidence to support your view?
• Q5: Do you have a view as to what limit to set for amphetamine? If so please give your reason(s).
• Q6: Are there any other medicines that we have not taken account of that would be caught by the 'lowest accidental exposure limit' we propose for the 8 illegal drugs? If so please give your reason(s).
• Q7: Are you able to provide any additional evidence relating to the costs and benefits associated with the draft regulations as set out in the Impact Assessment at Annex D? For example:
  i. Do you have a view on the amount of proceedings likely to be taken against those on the medical drugs proposed for inclusion under the approach in Policy Option 1? If so please give your reason(s).
  ii. Do you have a view on the methodology used to estimate the amount of proceedings? If so please give your reason(s).
  iii. Do you have a view on the methodology used to estimate the drug driving casualties baseline? If so please give your reason(s)
  iv. Do you have a view on the methodology used to estimate the casualty savings? If so please give your reason(s).
  v. Do you have a view on the methodology used to estimate those arrested on a credible medical defence under Policy Option 3? If so please give your reason(s).

• Q8: Does any business have a view on whether the Government's proposals will have any impact on them, directly or indirectly? If so please give your reason(s).

1.13 The consultation document was sent directly to 64 organisations based in England and Wales, many of which have a national remit. In addition, 67 organisations in Scotland were invited to take part in the consultation.

1.14 The UK Government also organised a briefing session in July 2013 in London and invited stakeholders to attend this session for further information. In Scotland, information about the consultation was put on the Scottish Government website and a news release was issued to help raise awareness of the consultation.