Drawn to the special attention of the House
Criminal Justice (Specified Class A Drugs) Order 2023 (SI 2023/784)
Date laid: 12 July 2023
Parliamentary procedure: negative
This Order expands the scope of drug testing in police detention, with the stated aims of increasing referrals to drug treatment services and thereby reducing drug-related reoffending. We were disappointed that fundamental data was missing from the explanatory material; for example, on the number of people affected, the costs of additional treatment and whether treatment services have the capacity to cope with the added demand. The Home Office provided further information in responses to us, but important questions remain unanswered. Significant objections about a possible differential effect of the policy on ethnic minorities, raised in a consultation, have also not been fully addressed.
We are, therefore, concerned that the Order has been brought forward without its full implications being considered. The House may wish to enquire further of the Minister on the details of the policy’s implementation. Moreover, much of what information is available was not in the Explanatory Memorandum, as it should have been, and we are disappointed that, once again, a department has laid an instrument without publishing important background information; namely, the results of the consultation and an Equalities Impact Assessment. The failure to provide this material runs counter to the Government’s commitments to provide key information at the time the instrument is laid.
This Order is drawn to the special attention of the House on the ground that the explanatory material laid in support provides insufficient information to gain a clear understanding about the instrument’s policy objective and intended implementation.
Background
5.The police and other authorities are permitted to test people for some drugs in certain circumstances; for example, on arrest or as part of licence conditions. This is known as ‘drug testing in police detention’ or Drug Testing on Arrest (DToA).
6.The Criminal Justice and Court Services Act 2000 allows ministers to specify, via secondary legislation, the drugs for which testing can be carried out. At present, these are limited to cocaine and certain opiates. The Order which came into effect on 2 August 2023 expands that list to include all Class A drugs, as defined under the Misuse of Drugs Act 1971, with the exception of certain Class B drugs that are reclassified to Class A if they have been prepared for injection.
7.The intention of the policy is to identify more people for whom drug use is associated with criminality, so that they can be referred to treatment or intervention services. Ultimately, the aim is to reduce drug use and associated reoffending, thereby cutting crime.
8.The Home Office describes DToA as a “core part” of a wider strategy to tackle drug use contained in a number of policy papers: for example, a 2021 ten-year drug strategy;3 a July 2022 White Paper and consultation;4 and a March 2023 anti-social behaviour action plan.5
9.We sought additional information on the policy from officials in the Home Office, and also wrote to the Rt Hon. Chris Philp MP, Minister of State at the Home Office, with further questions. The full correspondence with Mr Philp is attached at Appendix 1.
How many people will be affected by the change?
10.The Explanatory Memorandum (EM) laid with the instrument provided no information on key issues such as the number of people affected and whether drug treatment programmes have the capacity to cope with the increased number of referrals. An accompanying Impact Assessment (IA) stated that the Home Office expected a 10% increase in the number of positive tests, but did not state how many people this represented or how many of them were expected to enter treatment. In response to our questions, the Home Office said that the 10% increase represented an extra 5,000 positive tests per year. The Home Office explained that not all individuals who test positive will be suitable for a referral to treatment, but could not provide statistics in the area, stating that it was “seeking to improve its data relating to referrals”.
11.The number of additional people expected to test positive is a fundamental piece of information on this policy that should have been upfront in the EM, not accessible only through the IA or once we had asked questions. It is worrying that data on expected referrals seems to be largely non-existent, but this too should have been acknowledged in the EM.
How much will the policy cost?
12.The expected cost of the policy is another key piece of information. The EM stated only that the cost of the changes to the public sector will be £3 million, consisting of nearly £1 million in set-up costs and a further £2 million in running costs over ten years. These figures appeared to us very low. Referring to the IA, however, it is clear that the estimates exclude the costs of providing additional treatment services. The Home Office told us that such an estimate had not been possible, again citing a “lack of accurate data on referrals to drug treatment following positive tests”.
13.Given that the main aim of the policy is to refer a wider range of offenders to drug treatment services, it is surprising and concerning that the Government has not estimated the cost of providing these additional services.
Will treatment programmes have capacity?
14.Similarly, the EM and IA provided very little information on whether treatment services will have capacity to accommodate the extra demand resulting from the policy. The IA only provided a vague statement that “there is cross-departmental collaboration with the Department for Levelling Up, Housing and Communities (DLUHC) and Department for Health and Social Care (DHSC) to ensure additional resources and funding can be allocated to reduce strain on drug treatment and other corresponding social services”. Even so, the IA warned there was a risk that the policy might lead to “longer waiting times” and “higher strain” on treatment services.
15.In response to our questions, the Home Office referred to the policy in the context of the wider ten-year drug strategy. The Home Office said that strategy was supported by nearly £900 million of dedicated funding for 2022-2025, and an additional £780 million to fund “the first three years of an ambitious, decade-long transformation of drug treatment and wider recovery support in England”. The Home Office also stated that DHSC has provided local authorities with £97 million in 2022/23, and allocated £154 million for 2023/24, for drug and alcohol treatment and recovery. The Home Office concluded it was “content that the funding currently available for treatment to increase capacity considerably, and DToA funding from the most recent Spending Review, sufficiently mitigates any risk”.
16.It is very helpful to know the wider funding picture for drug treatment facilities. Again, however, this information should have been in the EM. Moreover, it is still not clear how much of the additional funding and capacity will be available to support this specific programme, particularly given timing concerns (see below). The Home Office’s inability to provide specific information about how the policy will operate on the ground, together with the absence of estimates of numbers of people being referred and programme costs, does not inspire confidence that the policy has been fully thought through.
Consultation
17.The expansion of DToA was included in the 2022 White Paper, referred to above, and was covered in the subsequent consultation. The response to the consultation has not yet been published. We have been clear, on many occasions, that responses to consultations should be available at the time the instrument is laid.6 Moreover, the Government has explicitly stated that publishing supporting documents, such as consultation outcomes, by the time a policy is laid before Parliament is “vital” in facilitating parliamentary scrutiny.7
18.In response to our questions, the Home Office justified the omission by saying that the policy was “considered separately” from the wider White Paper proposals. However, if the Home Office considered DToA to be a separate part of the policy, there is no reason why it could not have published a separate consultation response on this aspect prior to laying the Order; or, at least, published a summary of the relevant consultation findings in the EM.
19.Although the EM contained no information at all on the results of the consultation, the IA indicated that just 11% of respondents agreed with the proposal, while 79% disagreed. The IA said consultation respondents highlighted a risk that DToA expansion could disproportionately impact individuals from ethnic minorities, as they may be more likely to be targeted for testing.
20.In response to our questions, the Home Office downplayed the significance of a large majority of respondents expressing opposition to the policy, saying that a “significant portion” (not specified) were from “individuals who indicated that they disagreed with any form of control over drugs”. The Home Office went on to say that “28 of the 35 [police] forces who responded either agreed or strongly agreed with the DToA proposals”, and that it “placed significant weight on the views of policing”. The Home Office did not explain why seven of the 35 forces (20%) apparently took a different view. Mr Philp subsequently told us that proceeding with the policy before the consultation outcome had been finalised was “necessary and proportionate given this was not the primary focus of the original consultation”, and also given the “strong support from policing stakeholders” for the DToA measures.
21.The point of a public consultation is to obtain views from all those affected by, or with an interest in, the policy. The views of the police are certainly important, but even these suggest that a significant number of forces may not have agreed with the proposals. Overall, the information we have suggests that the consultation produced a nuanced and complex response, further emphasising the importance of publishing detailed feedback. In any case, the Home Office’s approach runs counter to the Government’s stated policy of ensuring that explanatory material is available.
Availability of testing technologies
22.The EM stated that the implementation of the policy “is dependent on the available technologies” to test for the drugs being brought into the DToA regime. The IA (although not the EM) acknowledged that suitable testing machines are not yet approved and the approval process has not yet started. In response to our questions, the Home Office told us that this could take 12 to 18 months.
23.We asked Mr Philp why, in that case, it was necessary to introduce the instrument now, and before the consultation outcome was available. Mr Philp responded that the legislation would support “policing partners” to “plan for the operationalisation of these changes while Home Office funding is available through the Drug Testing on Arrest expansion grant, and while commercial processes are underway”. Mr Philp also suggested that the legislation might give technology providers “greater confidence” to invest, potentially making the facilities available sooner, and would enable the police to include this requirement in future tender specifications.
24.It is not clear to us why planning for the policy cannot take place without the legislation being in place, or why tenders cannot take account of its future introduction. The reasons why other parts of due process have been set aside—for example, estimating the costs of the policy and publishing the consultation response—are unconvincing. We are also concerned that, if the technology does take 12 to 18 months to put in place, some of the additional funding for drug treatment services, as described above, may already have expired.
Equalities Impact Assessment
25.As noted above, the consultation reported concerns that the policy could disproportionately impact individuals from ethnic minorities. In this context we considered the Home Office’s Equalities Impact Assessment (EIA) to be a significant document. However, the Home Office initially refused to provide this to us, stating the assessment was “for internal use and was not intended for publication”. We requested the EIA again in our letter to Mr Philp and his response included a summary and a commentary. On whether the policy would result in any direct discrimination, Mr Philp said:
“The analysis of the information reported to the Home Office on Drug Testing on Arrest does not indicate that direct discrimination has taken place in Drug Testing on Arrest activities, outside of the additional safeguards in place in legislation for those aged 14 to 17 who may be drug tested on charge to protect the wellbeing of children, and therefore there is no expectation that this expansion would lead to any direct discrimination.”
26.Considering possible indirect discrimination, the EIA summary acknowledges that “current practices of drug possession enforcement have a disproportionate impact on certain protected characteristics (namely race, age, and sex), in particular young, black men”. However, the EIA argues that any such discrimination is “objectively justified” because it “can only take place where a person is arrested or charged for a criminal offence”. The EIA therefore concludes that the discrimination does not result from DToA practices themselves but from actions earlier in the process, such as “police decisions prior to arrest, for example stop and search practice”.
27.It is disappointing that the original EM contained no information from the EIA and that it was only provided to us at the second time of asking. Moreover, the contents do not allay the concern that the policy might, at the least, reinforce aspects of discrimination that already exist in the system. The House may wish to question the Minister further on this point.
Conclusion
28.This Order continues the disappointing theme of our reports in recent months, whereby we are having to provide basic information about a policy that should have been in the EM. In this case, even with the additional material, significant gaps remain in our understanding of how the policy will be implemented, for example: its cost, timing, whether treatment facilities will be available for the specific cohort of offenders targeted, and how the Home Office will address concerns that the policy will disproportionately impact individuals from ethnic minorities. The House may wish to enquire further of the Minister on these points.
29.We also reiterate that key information used to inform policy development—such as consultation responses, impact assessments and equalities impact assessments—should be made available by the time the instrument is laid, and a summary provided in the EM. This principle has been explicitly accepted by the Government and we will be vigilant in ensuring that departments adhere to it.
3 Home Office, Department of Health and Social Care, Ministry of Justice, Department for Work and Pensions, Department for Education, and Department for Levelling Up, Housing and Communities, ‘From harm to hope: A 10-year drugs plan to cut crime and save lives’ (6 December 2021): https://www.gov.uk/government/publications/from-harm-to-hope-a-10-year-drugs-plan-to-cut-crime-and-save-lives [accessed 4 September 2023].
4 Home Office, ‘Swift, Certain, Tough: New Consequences for Drug Possession’ (18 July 2022): https://www.gov.uk/government/consultations/swift-certain-tough-new-consequences-for-drug-possession-white-paper [accessed 4 September 2023].
5 Department for Levelling Up, Housing and Communities and Home Office, ‘Anti-Social Behaviour Action Plan’ (27 March 2023): https://www.gov.uk/government/publications/anti-social-behaviour-action-plan [accessed 4 September 2023].
6 For example, see Interim Report on the Work of the Committee in Session 2022–23 (42nd Report, Session 2022–23, HL Paper 205), para 25.
7 See the Government’s response to our Interim Report, in 50th Report (Session 2022–23, HL Paper 245).