Appendix 1: Correspondence on the Criminal Justice (Specified Class A Drugs) Order 2023 (SI 2023/784)
Letter from the Rt Hon. Lord Hunt of Wirral MBE, Chair of the Secondary Legislation Scrutiny Committee, to the Rt Hon. Chris Philp MP, Minister of State at the Home Office.
I am writing in relation to the above Order, to which the Secondary Legislation Scrutiny Committee gave initial consideration at its meeting today (25 July 2023). The instrument introduces an expansion of Drug Testing on Arrest (DToA). The Committee was particularly concerned about the lack of supporting information: in particular, that the Order was laid without the relevant consultation outcome being published, and without the Equalities Impact Assessment being made available.
Consultation response
We have been clear, on many occasions, that responses to consultations should be available at the time the instrument is laid, and that the Explanatory Memorandum (EM) to an instrument should also contain a summary of both the consultation outcome and the Government’s response.17
As you may be aware, our Advisers asked officials in your Department why the instrument was being laid before the consultation response has been published. Your officials said that this was “necessary and proportionate given this [policy] was not the main focus of the original consultation”. However, if the Home Office considers DToA to be a separate part of the policy, there is no reason why it could not have published a separate consultation response prior to laying the Order. In addition, we were not clear why it was necessary to proceed in advance of the consultation feedback, when, according to your officials, the technology necessary to implement the policy will not be in place for 12 to 18 months.
Although the EM contained no information on the results of the consultation, the accompanying Impact Assessment (IA) did provide a summary. This indicated that just 11% of respondents agreed with the proposal, while 79% disagreed. When we asked why the Home Office was proceeding despite this opposition, your officials said that “a significant proportion” (not specified) of the responses were less relevant because they did not relate to the DToA proposals specifically, instead disagreeing with “any interventions related to drug possession or consumption”. Your officials said that they gave more weight to the response from the National Police Chiefs Council, which indicated that 28 out of 35 forces agreed with the proposals. Even this, however, suggests 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.
We would welcome a full explanation of why the Order was published without the relevant consultation feedback being made public and well before the policy can actually be implemented. I would also be grateful if you could now provide either the full Government response to the consultation in this policy area or a more complete summary of it.
Equalities Impact Assessment
According to the IA, consultation respondents highlighted a risk that expanding DToA could disproportionately impact individuals from ethnic minorities, as they may be more likely to be targeted for testing. The Home Office has not commented on this important aspect of the consultation. Given this context, it is particularly disappointing that the Home Office has not published its Equalities Impact Assessment (EIA) for the policy. When we asked your officials about this, they said that the EIA was “for internal use and was not intended for publication”.
However, the Committee believes it is a fundamental principle of transparency and accountability that any information relied upon to formulate policy should be published alongside the instrument, or, at a minimum, be made available to Parliament on request, to facilitate scrutiny. This is particularly the case when, as here, the information covers an area known to be relevant to the policy.
I would therefore be grateful if you could provide the EIA to the Committee.
25 July 2023.
Letter from Chris Philp MP to Lord Hunt of Wirral
Timing of Legislation
The Committee raised concerns that this SI was laid before the related consultation response had been published. As outlined by departmental officials, the overarching position on the approach to drug possession sanctions set out in the Swift, Certain, Tough consultation remains under consideration, and a response will be published as soon as possible in the Autumn. The section of the White Paper pertaining to Drug Testing on Arrest was a small portion of the overall consultation and was therefore considered separately from the wider proposals outlined. The expansion of Drug Testing on Arrest measures is an important tool for the police to tackle drug misuse and boost referrals into treatment and is distinct from any proposal on how to tackle drug possession which the White Paper focused on. Progressing with this legislation in advance of the consultation response publication was seen as 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 Drug Testing on Arrest measures.
With the publication of the Anti-Social Behaviour Action Plan, and with the wider plans outlined in the 2021 Drug Strategy From Harm to Hope, the Government’s direction on Drug Testing on Arrest is clear, and we will provide an updated Explanatory Memorandum for this instrument in the coming months once the consultation response is published.
I believe the timing of this legislation is both necessary and proportionate as this instrument is the first in a planned suite of legislative changes to Drug Testing on Arrest powers and supports 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. Indeed the existence of the legislation gives greater confidence to commercial providers of drug testing technology to invest in making available such technology, and enables police commercial processes to include this requirement in any future tender specifications, significantly shortening the timescales for introduction of testing for a wider range of Class A drugs than would otherwise have been the case.
In regard to the lead-in times for technology, as outlined by my department we are aware of existing technology that can test for some additional Class A substances and will continue to work with the relevant sector leads, provide support with the relevant commercial processes, and seek to expedite these where possible to bring forward the police use of theses powers.
Overall, I believe the emerging evidence of Drug Testing on Arrest benefits in referring individuals to drug treatment and support services, alongside the operational and other support for this power being expanded justifies the decision to move at pace.
Equalities Impact Assessment
Equalities Impact Assessments are vital in ensuring Ministers have due regard of their Public Sector Equality Duty, and so often contain information internal to the department to ensure all available information is used to determine of the impact of the legislation. I have included a summary of the findings of the EIA to support the Committee in their scrutiny of this instrument. As you rightly mention, the consultation response information included in the Impact Assessment does outline concerns from respondents of the impact of the Drug Testing on Arrest expansion on individuals with protected characteristics. However, 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. The department and I will continue to monitor the risks of direct and indirect discrimination when working with policing partners and take action where necessary, but I am reassured that in this instance the correct process has been followed and the correct decision reached. I would also stress that the use of Drug Testing on Arrest has the benefit of identifying drug use which may have contributed to offending behaviour, and is intended to enable services to step in to support those individuals to address their substance misuse, so clearly there are advantages to expanding the range of drugs which can be tested for and enabling support to be provided to more people struggling with drug dependence.
Summary: Drug Testing on Arrest, Class A Expansion Equalities Impact Assessment
Over three million adults reported using drugs in the last year in 2021/22 and evidence shows that drug misuse is prevalent across the socioeconomic spectrum.18 Public Government data and Drug Testing on Arrest (DToA) monitoring data submitted to the Home Office in FY 22/23 was used in the EIA to look at the rate of completed tests by age, race and sex. DToA data pertaining to the remaining protected characteristics is not routinely provided to the Home Office, however, we will consider any risks of direct or indirect discrimination, or other equalities impacts, in relation to these characteristics as the legislation is implemented.
Arrest and charge data suggests 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 more than other groups. This imbalance is likely to result in part from police decisions prior to arrest, for example stop and search practice, and where police enforcement operations are targeted for both drugs and other offences.
The Crime Survey for England and Wales (CSEW) provides prevalence estimates for Class A drug use for adults aged 16-59. 19The CSEW reports that on average between 2014 and 2022, over one million individuals took Class A drugs each year. Of these individuals, around 82% took heroin, crack cocaine and/or cocaine powder, and 18% of these individuals reported using another Class A drug.
Drug testing in police detention has different conditions to meet to drug test individuals under 18 (but over 14) and individuals over 18. This is to ensure appropriate safeguards are in place to protect the wellbeing of children. We are not aware of any evidence indicating direct discrimination against individuals on account of their protected characteristics in relation to expanding the Class A drugs within scope of drug testing in police detention.
There is a risk of indirect discrimination on the basis of age, as young people are more likely to be stopped and searched and drug use is higher among young people. There is also a risk of indirect discrimination on the basis of race, as individuals from ethnic minority backgrounds are more likely to be stopped and searched, and more likely to be arrested. However, DToA data reported to the Home Office does not indicate that individuals with these protected characteristics have been disproportionately targeted by DToA activities.
Evidence shows that men are more likely to be arrested when compared to women, and that men use more drugs when compared to women. DToA data reported to the Home Office shows that men also more likely to be drug tested than women. However, this is broadly in agreement with arrest data.
Any impacts on individuals with protected characteristics is expected to be objectively justified, as drug testing in police detention can only take place where a person is arrested or charged for a criminal offence and the purpose is to divert users to drug treatment services (and, so, away from further criminality).
There are offences associated with drug testing in police detention, namely refusal of the drug test and non-attendance at the initial assessment(s), and as such there is a potential negative impact on certain age groups, on individuals from ethnic minority backgrounds, and men being disproportionately prosecuted for these offences. We will continue to consider this risk and will continue to collect and monitor data from police forces via the Home Office-funded DToA expansion programme.
We are not aware of any evidence which indicates that expanding the Class A drugs within scope of drug testing in police detention will impact individuals with other protected characteristics.
We will continue collect data on DToA activities from police forces via the DToA expansion programme and monitor the impacts of the expansion of Class A drugs this way. We will also continue to work with police forces and ask forces to consider PSED as part of their delivery plan for the DToA expansion programme.
1 September 2023
17 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.
18 Office for National Statistics, ‘Drug misuse in England and Wales: year ending June 2022’, 15 December 2022: https://www.ons.gov.uk/peoplepopulationandcommunity/crimeandjustice/articles/drugmisuseinenglandandwales/yearendingjune2022 [accessed 4 September 2023].
19 Ibid.