Road Traffic Act 1988 (Prescribed Limit) (Scotland) Regulations 2014 [Draft]
Item 2 is consideration of an instrument that is subject to affirmative procedure—the draft Road Traffic Act 1988 (Prescribed Limit) (Scotland) Regulations 2014. The instrument will introduce a reduction in the drink-driving limit. Last week, we heard evidence on the issue from Police Scotland, Scottish Health Action on Alcohol Problems and Scotland’s Campaign against Irresponsible Drivers. I welcome Kenny MacAskill, the Cabinet Secretary for Justice, and Patrick Down, a policy officer at the criminal law and licensing division of the Scottish Government. The cabinet secretary will make a short opening statement, after which we will move to questions from the committee.
Committee members will be aware that the Scottish Government has long argued that the Scottish Parliament should have powers to legislate on matters relating to drink driving in Scotland, and that the Scotland Act 2012 devolved the power to set the drink-drive limit. Although we consider that very limited transfer of power to have been a missed opportunity and believe that the Scottish Parliament should have the power to set the penalties for drink driving and to consider differential drink-driving limits—for example, for young and novice drivers—we welcome the fact that we now have that power to make Scotland’s roads safer through the setting of a lower limit.
In March 2013, following our late-2012 consultation in which the majority of respondents offered support for a lower limit, we confirmed our plans to lower the drink-drive limit in Scotland from 80mg to 50mg of alcohol per 100ml of blood. Some considerable time has elapsed since we announced our policy and we have had to engage with the UK Government to provide what is called type approval of the evidential breath-testing devices that are used by Police Scotland, so that those devices are suitably recognised as being able to operate at the proposed lower limit.
Members will be aware that the current drink-drive limit has been in force since the mid-1960s. Although social attitudes towards drink drivers have hardened over the years, the sad truth is that there remains a persistent minority who put their own lives and the lives of other road users at risk by getting behind the wheel after drinking alcohol. Figures show that about one in 10 deaths on Scotland’s roads each year involves a driver who is over the legal limit. That is 20 deaths each year, and 20 families devastated by the loss of a loved one.
Some people have said that our efforts should concentrate on enforcing the existing limit more strictly and that there is no need to reduce the drink-drive limit, but that ignores the scientific evidence that the risks of driving under the influence of alcohol start to increase at well below the current legal limit. Evidence from the British Medical Association shows that the risk of drivers with a reading of 80mg of alcohol per 100ml of blood being involved in a road traffic crash is 10 times higher than the risk for drivers with a zero blood-alcohol reading. The crash risk for drivers with a reading of 50mg of alcohol per 100ml of blood is more than twice the risk for drivers with a zero blood-alcohol reading. The independent review of drink-driving and drug-driving law, which was conducted by Sir Peter North in 2010, concluded that reducing the drink-driving limit from 80mg to 50mg will save lives. Applying his estimate to the Scottish population suggested that between three and 17 lives could be saved each year.
We consider that the current drink-driving limit has had its day. Reducing the limit to the lower level of 50mg to bring Scotland into line with most other European countries is the right approach, and will make Scotland’s roads safer.
To ensure that drivers are aware that the lower limit is coming into effect, the Scottish Government will run a public information campaign from 17 November. The campaign is aimed at informing all adults of driving age and will comprise advertising on television, video on demand and radio, and will include partnership and stakeholder engagement, field marketing, website updates, and use of social media and public relations. Television advertisements also will be aired on ITV Borders, which broadcasts to the south of Scotland and the north of England, to help to raise the awareness of drivers who live close to the border and who might travel into Scotland each working day.
Finally, I add that whatever the limit is, it should not be forgotten that alcohol at any level impairs driving. Our central message remains: “Don’t drink and drive.”
I am happy to take questions.
Thank you very much, cabinet secretary. As this is an evidence-taking session, I seek questions from members.
First of all, though, I should say that I am delighted that ads will be aired on ITV Borders, because some of my constituents and, I think, some of Elaine Murray’s constituents do not get STV. At last our constituents are getting information from the Scottish Government and Scottish Parliament. I think that Elaine will agree that Dumfries is in the same position.
Absolutely.
Good morning. You have described the process through which you reached your decision, and you said that it took time because you had to go back to Westminster and look at what was devolved and what was reserved. Is there more that you think the Scottish Government and the Scottish Parliament should do to tackle drink driving and, if so, would it be good to consider what is reserved and what is devolved beforehand? Which reserved matters would you like to be devolved before we go any further with drink driving?
Obviously I would like all the powers to be devolved, but that is a matter for others. We have already been through the referendum.
We as a Government can simply do what we can. Only the power to lower the limit has been devolved; I do not think that it is a secret that the police hoped that powers to reduce the limit would tie in with powers to introduce random breath testing. Last week, Chief Superintendent Murray said that the police have specific powers, and they pull over—I think—20,000 drivers a month. I make it clear that the police themselves have sought the other powers, and although we as a Government would be happy to consult on the matter, we do not have the powers and cannot even go there.
As I have also mentioned, the limit in other jurisdictions is lower than 50mg, but we think that such a move would be problematic with regard to penalties and disqualifications. It has been argued that we should look at what is done in Scandinavia, where a blood alcohol level of between 20mg and 50mg does not result in automatic disqualification. Again, we do not have the powers in that respect.
We are happy to consider and seek the views of the committee and consultees on issues such as there being different limits for young drivers, people in specialist occupations and so on. People who fly planes or drive trains are subject to a lower limit than the incoming 50mg limit. We are open to such approaches, but the only powers that we have are those to lower the limit. The move will save lives, which is why have done it. We will take any additional powers, and we will work with the police, other stakeholders and especially this committee to find out what we can do to make Scotland even safer.
If you are asking me to tell you off the top of my head what else we can do, what springs to mind are random testing, which I think the police would welcome; an opportunity to vary the penalties, which might allow us to lower the limit even further and make our roads even safer; and targeting specific age groups and occupations. The Government does not have a view on such matters and would consult on them, but we know that people including the Institute of Advanced Motoring and the police think that step changes can be made.
Could we get a bit more detail on random testing. We heard last week that 15 per cent of French people have had their breath tested. Do we know what the percentage in Scotland is?
I do not have those figures to hand. I will find out what information we have. However, given that 20,000 drivers a month are pulled over, I imagine that the amount will be significant and that they will not all be repeats. After all, come Christmas time, the police carry out various campaigns in which they pull over vehicles, and even if the driver is not tested, the police will clearly smell for alcohol. Moreover, people who are pulled over as a result of routine traffic incidents will likely have their breath tested. As a result, the percentage will be quite high, and I have to say that I am not aware of any considerable complaints. Indeed, I am not aware of any complaints either at constituency or at ministerial level from people saying that they have been inconvenienced.
It would be interesting to know the figures, notwithstanding that. It would be quite useful to know how many of the 20,000 drivers who are pulled over test positive.
Good morning. Perhaps it is worth recording that, in the European Union, only the United Kingdom and Malta currently have a limit of 80mg. The reduction in the limit will certainly move us more into the mainstream in the European Union.
My question is about the timetable for the public information campaign. You indicated that it will commence on 17 November. I believe that the new limit is to take effect from 5 December. Is there sufficient time to educate the public?
I believe so. There is already a fair bit of awareness because of the investigations that the committee is carrying out and the efforts that the police and others are making. We would have carried out a Christmas anti-drink-driving campaign anyway. We have the opportunity to piggy-back on that to some extent and to make it clear that this Christmas is perhaps not a Christmas like any other and that changes are coming through.
It is reckoned that the TV and radio adverts will reach 88 per cent of the adult population. As I recall, it is not simply ITV Borders that is involved; Channel 4 in Scotland and STV are also involved. Social media, which we all know are so much more important, will help to disseminate the message, and we are liaising with VisitScotland, which will inform potential visitors of the law change via its channels. Our own internationally facing channels will also carry out that work.
We are also working with commercial organisations; for example, Tesco has agreed to take posters and collateral at 60 of its petrol stations across Scotland, and I understand that Asda is doing likewise. Farmer Autocare is keen to support the dissemination of marketing materials, and local authority communications teams have been contacted. Obviously, there are other organisations involved, such as the Institute of Advanced Motorists, the Royal Society for the Prevention of Accidents and Police Scotland. We are looking at working with others. Transport Scotland will make information available on its overhead gantries on main roads.
Every possible avenue and communication medium is being considered. Internally in Scotland, for those who are coming in from whatever direction—whether they come into an airport, a ferry port or a station—there will be information.
Major retailers are involved. As I said, Tesco and Asda are involved, and I hope that others will follow suit in their petrol stations and elsewhere.
Significant steps are being taken, so I do not think that anybody will be unaware that the change will come in on 5 December, subject to the approval of the committee and Parliament.
I do not know whether Patrick Down wants to add anything to that.
There is one other thing that I will mention that did not come up in that quite long list. A 10-day field marketing road show is being planned that is intended to inform drivers and the wider public. It will cover key locations across Scotland, including Edinburgh, Glasgow, Dumfries, Galashiels, Dundee, Aberdeen, Inverness and Livingston and will give members of the public in places with high footfall, such as shopping centres, a chance to find out about what is happening if they have not been watching television or have not seen the campaign through social media or in the newspapers.
Okay. Thank you.
I have a feeling that you did not mention the Highlands and Islands. We are very alert here about that. Is the Highlands and Islands included in any way?
Inverness is in the Highlands.
Yes.
Of course. Inverness is not an island—the last time I looked, anyway.
Is there anything in the education programme that is specifically aimed at the day after people have been out drinking? We are going into the Christmas and new year period, in which people go out with friends in the evening and probably drink a bit more heavily than they normally do. They may get the message not to take their car, but will we get the message out to people that they may not be safe to drive the following day?
We have started to try to get across that message during my tenure as Cabinet Secretary for Justice. If we look back many years ago, it was all about what state the person was in when they left the pub or the event that they were at. Over recent years, there has been a realisation about the number of people who are positively breathalysed the following morning, which statistics show. In recent campaigns, considerable emphasis has certainly been put on not only people not taking the car if they are going to a Christmas party or another function, but on ensuring that, if they are going to drive the following day, they have acted responsibly.
I know that many people who work in bus companies—for example, in the city of Edinburgh—where random testing applies not only to drivers but to all who work for the company, consider taking the day off following what they see as having been a really good night, but whether to follow that example is a matter for the individual.
09:45I think that we have raised awareness. Our emphasis is on individuals taking responsibility for their actions. People have to be aware that alcohol remains in the bloodstream. I saw the evidence in the Official Report of last week’s meeting from Chief Superintendent Murray and Dr Rice. People have to think carefully and act accordingly.
The change that we are making is not from a limit of 150mg or 280mg but from a limit of 80mg to one of 50mg. We should remember that if somebody gets out of their bed half an hour earlier, it will be the 50mg limit and not the 80mg limit that will cause them problems. Such people should reflect that if they are going to have a good time—as we all want—then perhaps it is not just about not taking the car to a function: perhaps they should think about how they will get to work the following day.
I was also thinking about people who might be going Christmas shopping and so on. Perhaps they need to be aware that when they go out in the morning they might still be over the 50mg limit, so they should not take the car to go Christmas shopping the morning after.
The police will be out on the roads. We are all aware from our own experience that police stops now take place not only on peripheral routes or arterial routes going out of Edinburgh but within the city. It is recognised that people who are over the limit think that they can drive about in the city with impunity and will get stopped only if they go out of the city, but that has all changed. Equally, police stops take place not simply at 11 o’clock, 12 o’clock or 1 o’clock in the morning but as people are going into work. That is how it must be done because we must keep people safe. Other people who are going Christmas shopping want to be able to celebrate Christmas and not suffer.
We had some discussion at last week’s meeting about whether there should be variation in the penalty for people who are perhaps just over the new limit. Chief Superintendent Iain Murray was very clear that he felt that the penalty should still remain quite firm and that he does not support any variation. Can you explain why the Crown Office is looking at the possibility of what it describes as some less serious drink-driving cases being heard in lay magistrates’ courts. Does that send a mixed message?
I do not believe so. I accept and support what Iain Murray said on the subject and I think that he is quite right. Whether the limit is 80mg or 50mg, the limit exists and that is what people know, and it has been set for particular reasons. We have not changed the drink-driving limit since the 1960s, but cars are much more powerful and roads are much busier. We also know that alcoholic drinks have probably increased in strength; whether it is a pint of beer or a glass of wine, the alcohol by volume has crept up since the 60s. We need to make this long overdue change. We would not support any variation in the mandatory disqualification for one year and for three or more years for a second disqualification within a particular period. That is appropriate for sending out our message.
I alluded in response to your colleague Christian Allard to whether there should be an additional limit requirement between, for example, 20mg and 50mg, whereby there might not be a desire for disqualification but a clear desire to show that such levels are unacceptable. For example, a driver could be given a yellow card with the message “Two strikes and you’re out”, or they could be given penalty points. That is a matter for consideration and we would be open to that. We do not have a view as a Government on that, but such a system operates well in Sweden. We would go along with that applying to young drivers, whom Mr Allard mentioned, or people in specialist occupations.
With the changes that we made through the Scottish Court Service, justices of the peace have appropriate powers and they should be used. There are fewer courts but not fewer JPs. They serve Scottish justice with distinction and I think that it will be quite clear that they will be able to deal with matters. They have the powers to disqualify, which will be mandatory except in the rare and complex cases in which there can be challenges to disqualification, which are very few and far between in Scotland.
Are you content, in that case, that it does not send a mixed message that as soon as we have introduced the lower limit we will start to change which court people will appear in? Do you not think that we should maintain the same courts?
No. That is a matter for the Crown and the courts, because we have the appropriate disqualification.
We have also brought in forfeiture of the vehicle in recent years. People should be under no illusion: this is not simply about the loss of a licence and being off the road for a year. The consequences can include loss of employment, economic damage, including what might happen to one’s home, and the loss of the vehicle, whether it is new or old. Vehicles can be forfeited, depending on the criteria. We fully support the Crown on that. Equally, irrespective of whether the sanctions are imposed by a sheriff or a JP, they will be severe. The matter will be in public court and the opprobrium of the public will be equally significant.
Enforcement is not exclusively down to road policing. However, when Chief Superintendent Murray was here last week I asked him to confirm that
“Police Scotland is more than up for this change.”
He replied:
“We are. We support the change fully and we will be ready to implement it on the proposed date.”—[Official Report, Justice Committee, 28 October 2014; c 50.]
This is a somewhat sensitive matter in that it will definitely be flagged up as “operational”. If reports that I have received are accurate—I have no reason to doubt them—that a centrally taken decision will mean that from the early hours of the morning there will be no road policing presence whatever in the Highlands and Islands, and that there may well be no such presence outwith Glasgow, Edinburgh and Motherwell, that will not only present challenges in enforcement of the legislation but might open up the trunk road network to travelling criminals. Do you agree that it is important that the police have the wherewithal to deploy resources in a manner that can enforce the legislation?
I certainly do. Those are obviously operational matters. You will find that, although road policing might be hubbed at some of the areas that you mentioned, the spokes that those officers travel down are extensive and significant. Equally, there will be local area command.
However, I think that the biggest change in drink driving is not simply about enforcement by the police, although that is vital to driving home the message. It is also about the attitude of the public, which is that drink driving is entirely unacceptable and they will report it. I expect the police to act appropriately to ensure that the law is enforced and that there is a visible police presence.
Thank you very much.
I know that you will be on the case if that does not happen, John.
My question is really just an extension of the previous one. When Chief Superintendent Murray was here he said that although data is hard to come by, it is likely that a third more drink drivers will be caught in the initial phase. That is obviously a burden on resources for other policing as well. I suppose that my question is much the same as John Finnie’s: has some thought been given to how all that will be managed?
Yes, we have thought about that. The figures are the current statistics—I saw Chief Superintendent Murray’s evidence.
We looked at what happened in the Republic of Ireland, which made the same change in 2011—as, I think, Rod Campbell mentioned earlier. Only the UK and Malta still have the 80mg limit. Ireland used to have a limit of 80mg, but in 2011 it was reduced to 50mg, as we are now proposing. In Ireland, the number of convictions for drink driving went down. The received wisdom from Ireland is that the new limit provided greater clarity. Rather than the number of convictions going up—as statistics show they are doing here in Scotland—the opposite happened. The numbers went down and, as I understand it, they have continued to go down. The campaign in Ireland drove home the message, “If you’re going out, don’t drink and drive.” It stopped the people who would have said, “Maybe I can have a couple. Maybe I can have one more if I have a cup of coffee.” All that ended.
The raw stats that Chief Superintendent Murray provided are correct. Equally, the proof of the pudding will be in the practical delivery of the measure, which we have heard about from Ireland. In Ireland, where in many ways the culture and the demography tie in with those of Scotland, the number of convictions went down. The change drove home the message. Did everybody heed the warning? No. People who flouted the law were dealt with, but fewer did because more took on board the message not to drink and drive.
The point is that that happened over time. Chief Superintendent Murray was saying that in the initial phase the numbers are likely to be high until the message really percolates down and people realise what has changed. It is about resourcing for that initial period, when there are likely to be more drink drivers.
The statistics are from 2011 through to 2014. In Ireland, the effect was immediate. As soon as they brought in the change, convictions started to go down, not because the garda were not enforcing it but because people were heeding the warnings.
Practical delivery in Ireland meant that people took the message on board. Once the limit went down, people stopped taking the risk and thinking that they would be within the margin of error when they were not. That is why the figures started to decline in 2011 and have continued to decline. Margaret Mitchell’s worry about the initial rise in the number of arrests did not materialise in Ireland. The message went out—I presume in the same way as we are sending it out—that the limit was going down and people should not drink and drive. More people paid heed to that.
I have the raw statistics and we are prepared and able to deal with an increase, but the message from Ireland is that if we make the change, most people will take it on board. The minority of people who do not take it on board will not listen whether the limit is 80mg or 50mg, and they will face the consequences of their actions. Perhaps more people who have, through stupidity, not taken it on board should have thought a bit more deeply and either not taken the car or that drink, or, as Elaine Murray said, given more consideration to what they would do the following morning.
So, are you really dismissing the third more arrests that were mentioned in evidence last week as not being an issue?
I am not dismissing it. I am referring to the clear statistical parallel from the Republic of Ireland. It made exactly the same change that we propose to make. The received wisdom was that more people would be caught because more people would be between 50mg and beyond the upper limit before the body cannot take any more, than would be between 80mg and that upper limit. In reality, what happened was that fewer people were caught because more people adhered to the law and did not risk it.
Even so, I hope that it would be thought of as a possibility that the message might not get through immediately and that there might be more arrests, and that policing duties and resources will be looked at to make sure that nothing is overlooked.
I can give you an assurance that the Crown Office, the police and the Scottish Court Service feel capable of dealing with the circumstances that will arise.
Okay. Thank you.
I am not sure that I picked you up correctly. If Chief Superintendent Murray is saying that perhaps a third more people could be caught by the reduction in the limit, is that because the police are going to put additional resources into catching people who might be over the limit or will they still be working with the same resources?
No. Chief Superintendent Murray has simply tried to work out the number of people whose level is between 50mg and 80mg and are therefore more likely to be caught. He extrapolated from the raw statistics.
I will give you the information about Ireland. In 2007, the figure for convictions was 19,848 and in 2010 it was 12,602. The lower limit was enforced from 28 October 2011 and the figure went down to 10,575. For the year to 27 October 2012, the number of convictions fell to 9,771. The figures were down almost 5,000 from the year before the limit was reduced, and there was also a reduction after the limit was reduced in October 2011.
I take cognisance of everything that Chief Superintendent Murray said. We have spoken to the Crown Office, the police and the courts. We are able to deal with circumstances. He extrapolated from the raw data. The example in practice shows what happened when Ireland went the same way. We are doing what Ireland did. People will take the message on board. The figures are clear; convictions fell.
I have a further note. Although there was a decline in the number of arrests in all but one age group—women aged 50 to 67—a significant number of cases involved male drivers driving late at night or early in the morning, particularly at the weekend. In Ireland, they got the message across. We do not want more people to be convicted; we want lives to be saved and safer roads. What Ireland and the rest of Europe, other than the UK and Malta, have done is made the situation clearer. You cannot go out and have two pints, then say you will have another because you have had a meal, then stay for a bit of a dance and have a glass of wine but think you will be all right because you have done some calculations in your head. Just do not do it. That seems to have been the message in the Republic of Ireland.
Are there any other late requests to ask a question? Every time I try to move on, someone puts their hand up. If no one else wants to speak, that is the end of the evidence-taking session.
Item 3 on the agenda is the formal debate on the motion to approve the instrument. I invite the cabinet secretary to move motion S4M-11277.
Motion moved,
That the Justice Committee recommends that the Road Traffic Act 1988 (Prescribed Limit) (Scotland) Regulations 2014 [draft] be approved.—[Kenny MacAskill.]
Motion agreed to.
As members are aware, we are required to report on all affirmative instruments. We have the opportunity to sign off our report next week.
We will suspend to let officials change places.
10:00 Meeting suspended.Mutual Recognition of Criminal Financial Penalties in the European Union (Scotland) (No 1) Order 2014 [Draft]
The next item is consideration of another instrument that is subject to affirmative procedure. The cabinet secretary stays with us for this item. Joining us from the Scottish Government are Neil Watt, who is the head of the European Union implementation team in the criminal justice division, and Neil Robertson, who is the EU policy manager in the same team. Do you have to be called Neil to be in the criminal justice division? It seems to be the case. What happens? Do you call each other Neil 1 and Neil 2? Who would know who has been asked anything? Do not answer that.
The cabinet secretary will, again, give evidence on the instrument. I understand that he wishes to make a short opening statement.
The statutory instrument will improve the original transposition of the mutual recognition of financial penalties framework decision. The purpose of the 2005 framework decision was to ensure consistency in how financial penalties operate across the EU. It enables Scottish fines and fixed penalties—for example, for road traffic offences—of €70 or over to be enforced elsewhere in the EU, and vice versa. The aim is to ensure that Scotland is not seen as an attractive destination for criminals who are confident that fines will not follow them here.
Members might ask why we are amending the original transposition from 2009. There are two reasons. First, as with all new measures, there is always an element of seeing how things work in practice. Since the original transposition, we have identified a few minor problems with the existing implementation, such as delays that have been caused by incomplete or unsigned requests by other member states. By making minor practical adjustments to the original provisions, we can address those problems. Secondly, one of the measures that the United Kingdom expects to opt back into on 1 December—the trials in absentia framework decision—amends the original 2005 mutual recognition of financial penalties framework decision.
We have taken the opportunity to improve the original transposition before we implement the new requirements on 1 December. Despite the uncertainty around the opt-in, my officials and I have updated the committee as much as we can on all the measures in which we are participating.
I am happy to answer any questions.
How often is the provision used? Do we have statistics? I have caught out one of the Neils. He is having to rustle through his papers.
We are talking about 100 financial penalties in the past five years.
Were the penalties on people from abroad coming here or on people from Scotland going elsewhere?
Both. The majority were for road traffic offences by commercial lorries and tourist drivers.
I thought I would ask because I wanted to make sure that you knew.
There are various areas in relation to which Westminster is deliberating about whether to opt in or opt out. Have you had any confirmation that we will definitely be opting into this part of the framework?
We have not had formal confirmation, as such. From the jungle drums that are beating and the runes that have been read, there is some suggestion that everything seems to be being sorted. However, whether we are talking about this particular aspect or the European arrest warrant, we remain concerned.
I think that you have a question in this afternoon’s question time about that.
Thank you, convener. I was not pre-empting that question. The committee is concerned about the EU opt-ins and opt-outs, and this is just another one of them.
Under item 5 on the agenda, I invite the cabinet secretary to move motion S4M-11278.
Motion moved,
That the Justice Committee recommends that the Mutual Recognition of Criminal Financial Penalties in the European Union (Scotland) (No. 1) Order 2014 [draft] be approved.—[Kenny MacAskill.]
Motion agreed to.
Again, as members are aware, we are required to report on all affirmative instruments. Are members content to delegate to me responsibility for signing off the report?
Members indicated agreement.
10:05 Meeting suspended.