Select Committee on European Scrutiny Thirty-Eighth Report







Commission recommendation on the maximum permitted blood alcohol content (BAC) for drivers of motorised vehicles

Legal base:




Basis of consideration:

Minister's letter of 24 July 2002

Previous Committee Report:

HC 28-ix (2000-01), paragraph 2 (21 March 2001) and HC 152-xxiv (2001-02), paragraph 1 (17 April 2002)

Committee's assessment:

Legally and politically important

Committee's decision:





    1. In March 2001, the previous Committee left uncleared, pending further information, the Commission Recommendation concerning blood alcohol content (BAC) for motorists. The Recommendation, which has no binding implications for Member States, comprises five specific recommendations on drink-driving limits:

    • all Member States should adopt a legal maximum blood alcohol limit of 0.5 mg/ml or lower for drivers and riders of motor vehicles;

    • a lower limit of 0.2 mg/ml should apply to inexperienced drivers, motorcyclists, drivers of buses and coaches and drivers of vehicles carrying dangerous goods;

    • all Member States should adopt random breath testing;

    • accuracy of breath-testing devices should be harmonised; and

    • Member States and the Commission should collaborate in the fields of research and development, exchange of information and statistics, and publicity.

    1. Our predecessors considered but did not clear the document. They put a number of questions to the Government. These were answered in part in a letter of 4 April 2001 from the Parliamentary Under-Secretary of State, Department of the Environment, Transport and the Regions (Lord Whitty). This letter also mentioned, almost in passing, that draft Council conclusions were likely to be adopted by Transport Ministers the following day. On 20 March 2002 the Parliamentary Under-Secretary of State, Department of Transport (Mr David Jamieson) wrote us a further letter. We were highly dissatisfied with that letter and again the document was left uncleared.
    2. We requested a prompt reply from the Minister on three points:

    • how information in his letter of 20 March 2002 had reached the Sunday Times three days earlier;

    • an explanation of the breach of the scrutiny reserve process; and

    • information on three points of substance:

        1. "Is it the case that, all other things being equal, lowering the maximum BAC limit in the UK, as recommended by the Commission and the Transport Council, would lead to a fall in the expected number of fatalities and injuries on UK roads?
        2. "If so, could the Minister provide us with the Government's best estimate of the expected number of saved fatalities and injuries and details of the Government's analysis for calculating such an effect?
        3. "Could additional measures, such as those to improve enforcement of limits and publicity campaigns to deter drink-driving, which are the Government's preferred options, be successfully combined with a lower drink-drive limit?"

The Minister's letter (24 July 2002)

    1. On the Sunday Times article the Minster comments that he has no control over press speculation and tells us "I can assure you that I did not give this information to the press prior to informing your committee."
    2. On the question of the scrutiny reserve the Minister says:
    3. "I fully appreciate your views on the scope of the scrutiny reserve. However, this was a slightly unusual case as the Council did not actually adopt the Recommendation. It only adopted a set of conclusions which were well short of blanket endorsement, even though Ministers thought it was to be welcomed as a statement. Member States still hold a variety of positions on the detail, several considering it a matter of subsidiarity. I am fairly sure the Council would not have adopted such a recommendation. This was an outcome anticipated by the Commission when it eventually decided not to offer a draft Council recommendation but merely to issue its own."

    4. On the substantive points the Minister tells us:
    5. "Individual elements of Commission Recommendation

      "Irrespective of our position on lowering the 80mg limit to 50mg, we have had reservations about a lower limit, such as 20mg, for certain categories of driver. Whilst there is a good argument that drivers of goods vehicles and buses should be even more scrupulous than ordinary motorists, we believe the transport industries take a very responsible attitude to drink and have strict policies for their employees. As regards two wheel motor vehicle users, in the UK the incidence of alcohol among motorcyclists involved in accidents is much lower than for car drivers. With regard to novice drivers, we have previously considered the implications and concluded that there would be concerns about the effect of such drivers moving to a higher BAC limit when they cease to be 'novices'. There are also some practical and presentational difficulties with having more than one limit. These are not insurmountable but I am not, at this time, convinced that the potential gains would justify the additional effort.

      "We do not wish to adopt the policy of random breath testing. Police consistently find a rate of 12-13 per cent positives through carefully targeted testing in association with accidents and offences. The case for random testing is based on a deterrence effect; in some countries, for example, the aim is to create a high probability that every driver gets tested at least once every three years. Inevitably the practice does tie up considerable police resources. I believe it is better for their efforts to be targeted in an intelligent way, but raising the profile of the enforcement can play an important part.

      "As I have said previously, we are fully supportive of collaboration at an international level, both in sharing research and other information on the drink drive problems and in technical developments such as breathalyser equipment. I consider this to be the foremost issue in the recommendation because the European Commission is in a unique position to facilitate such work.

      "Casualty savings from lowering the BAC limit

      "When we wrote the consultation paper 'Combating Drink Driving: Next Steps' we felt it was necessary to try to make an estimate of possible savings. Research experts have tried to build predictive models but the main obstacle has been statistical control for a variety of effects. The weakness of much of the evidence from states where legal limits have been changed, is that there were underlying trends and concurrent factors (publicity, enforcement policy) which were not all measured. This is not to deny that the package of measures had beneficial effects, but it explains why it is difficult to apportion those effects to each of the contributing factors. Accordingly, the estimates in Annex 2 of the consultation paper were based on plausible assumptions about how people's behaviour might change in response to a change in the limit.

      "It is also worth noting that expert opinion on the likely effect of lowering the limit to 50mg is far from unanimous. For example, the Department has recently seen a report by the Traffic Injury Research Foundation of Ottawa into the safety impact of lowering the BAC limit in Canada (May 2002). The main purpose of this report was to provide a critical review of research studies that have evaluated the road safety impact of a reduction in the limit, with particular emphasis on change from 80 to 50mg. This includes research carried out in the USA, Sweden and Australia.

      "The report concludes that its review of evaluation literature 'failed to provide strong, consistent and unqualified support for lowering BAC limits. At best, the results are mixed and the methodological weaknesses in the studies raise questions about the robustness and veracity of the evidence.'

      "Combining additional measures with a lower limit

      "Penalties for road traffic offences are a key element in the enforcement of drink-drive laws. In my letter of 20 March 2002, I alluded to the difficulties we see in combining a reduction in the limit to 50mg with our current penalties regime. Penalties in this country are far more severe for exceeding the 80mg limit than in other EU countries, involving an automatic minimum disqualification of 12 months, up to 6 months in prison and a maximum fine of 5,000. Most countries with a lower legal limit impose only minor penalties at the lower alcohol levels and imprisonment and licence removal are not generally available below alcohol levels of 100mg or more.

      "The Government believes that the combination of legal limit and tougher penalties create a more effective deterrent, but applying those penalties at a 50mg level would be unduly harsh and is unlikely to command as much respect from the motoring public. The alternative option of adopting a system of minor penalties at the lower alcohol level, in the style of other EU states, would, in our opinion, give the unfortunate impression that the Government is willing to regard some levels of drink-driving as more acceptable than others.

      "Other enforcement measures I referred to in my letter, such as evidential roadside breath testing, drink-drive rehabilitation courses and ignition interlock devices, should be capable of operating effectively in combination with a lower BAC limit. However, it is difficult to see how any of these can be divorced from the penalties question and the problems I have outlined above.

      "As far as publicity is concerned, the potential impact of a reduction in the limit on the effectiveness of our anti-drink-drive campaigns is unclear, but is likely to depend largely on public perception and degree of acceptance of a lower limit."


    6. We note the Minister's comment about press speculation and of course accept his assurance that he did not give prior information to the press. However we observe that the core of the Sunday Times article was not speculation and that the information on which it was based must have originated from someone privy to the Government's intentions.
    7. We note also the Minister's comments about scrutiny reserves. But we observe that the document under scrutiny was - and remains - a Commission Recommendation. The Government's acquiescence in Council Conclusions welcoming the Commission Recommendation as a statement, even if not a blanket endorsement, breaches the letter and the spirit of the scrutiny reserve process. We trust that the Minister will ensure a similar situation does not arise again.
    8. We are grateful that the Minister's response now clarifies the reasoning behind the Government's rejection of lower BAC maxima and other aspects of the Commission Recommendation.
    9. As noted before, this document is legally and politically important. However no further purpose can be served by retaining it under scrutiny. Accordingly we now clear the document. But if there is further EU activity on this subject requiring scrutiny we reiterate our request to the Minister that the scrutiny reserve be properly observed.


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Prepared 11 November 2002