Lords Sitting of 27 April 1961

Preamble
The House met at three of the clock, The CHAIRMAN OF COMMITTEES on the Woolsack.
Prayers—Read by the Lord Bishop of Chester

MESSAGE FROM THE QUEEN
3.5 p.m.
THE EARL OF SCARBROUGH: My Lords, I have the honour to present to your Lordships a Message from Her Majesty The Queen signed by her own hand. It is as follows:
"I have received your Address praying that the Organisation for Economic Cooperation and Development (Immunities and Privileges) Order, 1961, be made in the form of the draft aid before Parliament.
"I will comply with your request."

MENTAL HOSPITALS' PATIENTS
LORD TAYLOR: My Lords, I beg leave to ask the Question which stands in my name on the Order Paper.
[The Question was as follows:
To ask Her Majesty's Government the number of patients in mental hospitals at the end of 1958 and the end of 1960 (or the nearest date thereto) in each of the following categories:—certified and temporary; voluntary and informal.]
LORD NEWTON: My Lords, in designated mental hospitals in England and Wales there were 77,002 certified and temporary patients on the 31st December, 1958, and 51,432 on the 31st December, 1959. In the same hospitals there were 61,120 voluntary and informal patients at the end of 1958 and 81,722 at the end of 1959. During 1960, the categories of patients were being changed in accordance with the provisions of the Mental Health Act, 1959.
LORD TAYLOR: My Lords, I thank the noble Lord for that encouraging Answer, and I hope that the process of
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de-designation and re-allocation will be speeded up, so that we may have a further change. I think the improvement is about 25,000 in each case, and I hope that we may see a steady increase in de-certification in the months and years ahead.
LORD NEWTON: My Lords, the decrease in the number of certified and temporary patients is 25,570, and the increase in voluntary and informal 20,602.

NEW DAIRY UNITS AND IMPROVEMENT GRANTS
2.40 p.m.
THE EARL OF KINNOULL: My Lords, I beg leave to ask the first Question which stands in my name on the Order Paper.
[The Question was as follows:
To ask Her Majesty's Government whether, in view of the recent Government White Paper on milk quotas in the Price Review they are taking steps to make the grants under the Farm Improvement Scheme unavailable to new dairy units on farms that hitherto were not producing milk.]
THE JOINT PARLIAMENTARY SECRETARY, MINISTRY OF AGRICULTURE, FISHERIES AND FOOD (EARL WALDEGRAVE): My Lords, Section 12 of the Agriculture Act, 1957, which provides the statutory basis for the Farm Improvement Scheme, lays down that these grants may be paid only for improvements such as a prudent landlord would be willing to make. When this Act was under consideration in another place the suggestion was made then that grant should not be allowed for converting into a dairy farm a holding which had not been accustomed to sell milk. Her Majesty's Government felt then that few prudent landlords would in fact be prepared to put up buildings for that purpose, but that if in some individual case there were compelling reasons for the change it was right that it should take place.
My Lords, the prudent landlord will no doubt be even more careful in present circumstances in considering proposals for dairy buildings; but Her Majesty's Government still consider it right that such proposals should be scrutinised for

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grant purposes on the merits of the specific case. The object of the Farm Improvement Scheme is to make longterm improvements to agricultural land in the interests of efficiency. The test in this case must remain whether a prudent landlord, having taken into account all the circumstances including any possible two-tier price system for milk, would in fact make the improvement concerned.
THE EARL OF KINNOULL: My Lords, is the Minister aware that it appears that the Ministry have a conflict within themselves, with one arm being the "Dutch uncle" making grants for improvements to provide new dairies, and with the other arm tightening their grasp to prevent future production with, one suspects, an eye on a European trade pact or Commonwealth Agreements?
EARL WALDEGRAVE: My Lords, I cannot admit that there is conflict here. In the White Paper on the Annual Review, which was published last month, it was stated that the Farmers' Unions, with the Milk Boards, would attempt to work out before July 31 of this year a new method of payment for milk which would bring home to the individual producer the fact that additional output could find an outlet only at manufacturing prices. I do not think the objects of this proposal, as outlined in the White Paper, are inconsistent with some element of movement into and out of the industry, and Her Majesty's Government have as yet no indication of the recommendations that may come forward from the Unions and the Boards.
LORD WILLIAMS OF BARNBURGH: My Lords, may I ask the noble Earl how this very elusive character, the "prudent landlord" comes into the case of an applicant who feels that he can never make his small farm economic without its being partially dairy? Would the attitude of the applicant surmount that of this elusive customer, who may be a landlord in Northumberland dealing with an application in Cornwall?
EARL WALDEGRAVE: My Lords, if I follow the noble Lord's question aright, the hypothetical "prudent landlord"—
LORD WILLIAMS OF BARNBURGH: Very hypothetical.
EARL WALDEGRAVE: —who is laid down in the Act, must consider each question on its specific merits, That is in the Statute, and we cannot depart from the Statute to control production policy on the side. The case put up by the hypothetical tenant to the hypothetical landlord would be examined and judged on is merits.
LORD STONHAM: My Lords, is the noble Earl aware that the conflict which he was unable to see is between the highly praiseworthy decision to make grants available to facilitate increased production, and the fact that, when you have got the increased production you do not want it, and therefore reduce the price to the farmer? That is the inevitable conflict which arises out of the Government's price support policy.
EARL WALDEGRAVE: My Lords, I cannot wholly agree with the noble Lord that this conflict exists. As to the question that was asked, this Scheme will continue to be administered as it is laid down in the terms of the Act.
LORD WISE: My Lords, may I ask the noble Earl, arising from his first reply to the question of the "prudent landlord"; what is the position of the owner-occupier who wishes to go into milk and wishes to receive a grant for the erection of buildings?
EARL WALDEGRAVE: My Lords, the owner-occupier becomes both a hypothetical prudent landlord and a hypothetical prudent tenant for the purposes of administering the Act.
LORD WALSTON: My Lords, would the noble Earl agree that the prudence of the landlord, which is to-day going to prevent him from investing money in new equipment in the milk production field or from modernising his buildings in that field, will in fact prevent milk from being produced more cheaply in the future, and will continue to force us to produce milk in uneconomic buildings at a high cost?
EARL WALDEGRAVE: No, my Lords. I do not think that any proper administration of this Act—and I can assure the noble Lord, Lord Walston, that this Act will continue to be properly administered by this Government—will have the undesirable effects he suggests.
VISCOUNT ALEXANDER OF HILLS-BOROUGH: My Lords, this "prudent" insertion into statutory provisions—at least by regulation—is very interesting. As we have the learned Church here this afternoon, I wonder whether the Ministry would consider issuing an extract from Cicero extolling prudence and putting it above almost all the other virtues? Do you think landlords are generally made up of that stuff?
EARL WALDEGRAVE: Yes, my Lords.
LORD WILLIAMS OF BARNBURGH: My Lords, may I ask the noble Earl whether up to the present moment any grant has been refused because the applicant desired to become a dairy farmer?
EARL WALDEGRAVE: My Lords, I should imagine that on many occasions when specific proposals have been put forward, they have been refused. We know that there have been a large number of refusals. In some cases, the proposals put forward may have been related to milk and will have been refused. But they will not have been refused merely because they involved milk.

THE FARM IMPROVEMENT SCHEME
THE EARL OF KINNOULL: My Lords, I beg leave to ask the second Question which stands in my name on the Order Paper.
[The Question was as follows:
To ask Her Majesty's Government whether they will state what sum has so far been used of the £100 million grant set aside under the Farm Improvement Scheme; and whether they will also forecast how long this grant will be available and whether they will be renewing it when it is exhausted.]
EARL WALDEGRAVE: My Lords, Part II of the Agriculture Act, 1957, makes provision for £50 million—not £100 million—to be paid in grants under the Farm Improvement Scheme. The Act also provides for a further £5 million to be made available by Order. Since September, 1957, approval has been given to proposals covering improve-
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ments estimated to cost in total some £90 million, representing £30 million in terms of grant. Down to March 31, 1961, about £18 million had actually been paid out. These are all United Kingdom figures. At the Second Reading of the Act in another place, my noble friend Lord Amory (as he is now) said that if expenditure seemed likely to exceed the figures which had been written into the Act, Her Majesty's Government would have to look at the question afresh when the time came. If applications continue to be approved at the same rate as hitherto, this situation will arise before the end of the ten years to which the Act relates. Her Majesty's Government have this matter well in mind and will make an announcement about their further intentions rather nearer the time.
VISCOUNT ALEXANDER OF HILLSBOROUGH: My Lords, if the present trend of forcing down prices of arable products—agricultural grain and the like—goes on, and the smaller farmer engaged in arable agriculture cannot continue to live on it, as happens very often in Essex and Norfolk, will they have a chance of getting farm improvement grants to go into the milk industry, to try to offset the losses being pressed upon them through lower prices for grain and, at the same time, gradually increased costs to them, year by year?
EARL WALDEGRAVE: My Lords, perhaps that point arises more out of the first Question which my noble friend asked: The present Question asked what has been paid out under the scheme. But to answer the noble Viscount's question, proposals will continue to come forward and be judged on their merits, as I said previously.

BUSINESS OF THE HOUSE
EARL ST. ALDWYN: My Lords, I think it may be for the convenience of your Lordships if I say a word about the first day of the Committee stage of the Road Traffic Bill. It is the intention that, if possible, we should complete the Amendments to Clauses 1 and 2. If, perchance, we should finish Clause 2 fairly early, I suggest to your Lordships that we should not continue beyond Clause 2 to-day, so that those of your

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Lordships who are not concerned with Clauses 1 and 2 but with later clauses may know that their business will not come on to-day.

ROAD TRAFFIC BILL [H.L.]
3.19 p.m.
Order of the Day for the House to be put into Committee read.
Moved, That the House do now resolve itself into Committee.—(Lord Chesham.)
On Question, Motion agreed to.
House in Committee accordingly.
[The LORD MERTHYR in the Chair.]
Clause 1:
Standard of unfitness to drive through drink etc.
1. For the purposes of section six of the principal Act (which imposes penalties for driving, attempting to drive or being in charge of a motor vehicle while unfit to drive through drink or drugs) a person shall be taken to be unfit to drive if his ability to drive properly is for the time being impaired.
LORD TAYLORmoved, after the second "being" to insert: "in any degree". The noble Lord said: I beg to move the Amendment to Clause 1 standing in my name upon the Order Paper. Those of your Lordships who attended the Second Reading debate will remember that the noble and learned Lord, Lord Denning, wished to have a clarification of what is a very important phrase in this Bill. The Bill states that drivers shall be found guilty of an offence if their ability to drive is impaired by alcohol or drugs. The noble and learned Lord suggested that the words "appreciably impaired" should be inserted. I disagreed with him, because I felt that if these words were inserted it would substantially weaken the Bill.
I have discussed this matter with the noble and learned Lord, and he has said that in his view courts will have some difficulty over interpreting the word "impaired" unless it is qualified; that Her Majesty's judges will find it difficult to advise juries as to precisely what interpretation to place on the word "impaired". I have therefore suggested in this Amendment the insertion of the words "in any degree". I do not myself feel that this necessarily clarifies the
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Bill, because I believe that the Bill states in itself what it means: if a driver's capacity is at all impaired. That is what it means; but if it will help the courts then I think we should make clear precisely what is intended. There are two ways in which this could be done: either the Government could accept this Amendment in principle and perhaps modify it to make it clear that it is intended to cover any degree of impairment, or it could accept the Amendment about to be moved by the noble Lord, Lord Teynliam, which would dilute the meaning of the word "impaired" practically back to the existing Statute. I move this Amendment only because I wish to find out which is the intention of the Government and to seek the advice of the Government on whether it is necessary to assist the courts in interpreting the meaning of the word "impaired". I beg to move.
Amendment moved—
Page 1, line 10, after ("being") insert ("in any degree").—(Lord Taylor.)
LORD SOM̃ERS: Might I suggest that "appreciably" might be a better term. I I think the noble Lord would agree that "in any degree" includes even the most minute degree, whereas "appreciably" means just what it says—to the point where it is possible to recognise it.
LORD TAYLOR: May I have the leave of the House to reply to the point which has been raised. Manifestly, if a person's judgment is impaired it must be appreciably. But I understand from the noble and learned Lord, Lord Denning, that this is the subject of endless argument by counsel in the courts, whenever they are defending a subject who is accused of dangerous driving under the influence of alcohol. They say, "He was certainly under the influence of alcohol, but it was not appreciable"; that is the defence which is always advanced. Therefore I hope the word "appreciably" will not be applied, but that if any qualification is to be made it will be "in any degree"—though admittedy degree must be appreciable.
THE MINISTER WITHOUT PORT-FOLIO (THE EARL OF DUNDEE): The noble Lord, Lord Taylor, will not need to be reminded that he said on Second Reading that he was not in favour of amending this clause. He said that he

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himself had written the words "has been impaired" before the clause was drafted; he thought that that was the right way to put it. He went on to say [OFFICIAL REPORT, Vol. 230 (No. 64), col. 403]:
"… that is exactly what the clause says and what the noble and learned Lord, Lord Denning, took exception to. It is simply an impairment of capacity which can be fairly safely assumed as a result of the demonstration of certain levels of blood or urine alcohol. Therefore, I personally hope for that reason that Clause 1 will not be modified. I believe that it is the safest, most sensible and a simple definition; and I think it is entirely right."
I still respectfully agree with the noble Lord about that.
It seems that the reason for putting forward the Amendment is that he is now afraid that the courts will interpret the Bill in the sense in which the noble and learned Lord, Lord Denning, suggested it ought to be interpreted, and that they will not do anything about it unless they consider the impairment is appreciable. I think the noble Lord, Lord Taylor is entirely right in his view that the Bill means impairment in any degree, but I would suggest to him that to insert any qualification of this kind is entirely unnecessary. With great respect to what he has indirectly, at second-hand, told us he heard from the noble and learned Lord, Lord Denning, I would still suggest the words are unnecessary and could do no good and might possibly do some harm. Either the man's ability to drive is impaired or it is not impaired, and if it is impaired it must be impaired to some degree. If you put in the words "in any degree", surely you will only raise in people's minds—magistrate or jury—the possibility as to whether it can be impaired to no degree, which does not make sense. Either it is impaired to some degree or it is not impaired at all.
The obvious possibilities of doubt in interpreting any provision of this kind, I would suggest to the noble Lord, do not arise out of the word "impaired" at all, but rather out of the phrase "to drive properly". It might well be a matter for consideration. Different people might have slightly varying views as to what is to constitute driving properly, and they might feel some hesitation in deciding whether a man's ability to drive properly had or had not been impaired. But the noble Lord will agree, I am sure, that you could not help matters by qualifying the word "properly". It would make a
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mockery of the thing if you were to put in an Act of Parliament "his ability to drive properly in any degree". You will not make it easier for any court to apply this provision justly by so attempting to qualify the word "impaired".
I suggest to your Lordships that no amount of verbal exactitude can ever relieve magistrates and juries of the necessity of exercising common sense. They have to decide perhaps the degree to which ability to drive properly was impaired, and, according to the degree, whether it is a large degree or a small degree, they might decide on what is the appropriate sentence. But to decide whether the offence has been committed at all—that is to say, whether the person's ability to drive has or has not been impaired—would, I suggest, to the noble Lord, not be helped by the insertion of the words "in any degree". This endeavour to prescribe the way in which people shall exercise common sense might possibly have the effect of making their task slightly more difficult. It certainly would not make it any easier.
LORD TAYLOR: I thank the noble Earl for his explanation, and I am pleased that in fact the Government do mean "in any degree", as I hoped they did, in the actual phraseology of this clause. I accept the point very readily about driving properly and the possible misconceptions which might arise from that. I think I should perhaps say that the noble and learned Lord, Lord Denning, would have been here himself but he is delayed on Judicial business; that was the only reason he could not come and say much better what I have tried inadequately to say. I should like to thank the Government for their reply, and with the assurance that the noble Earl has given, may I ask leave to withdraw this Amendment.
Amendment, by leave, withdrawn.
3.30 p.m.
LORD TEYNHAM LORD TEYNHAM moved to add to the clause.
"to such an extent as to be likely to cause danger to other road users".
The noble Lord said: This Amendment goes a little further than the last Amendment. Its object is to bring a little more sense into the word "impaired" in the clause. Ability to drive may be impaired through innumerable causes—fatigue, anger, annoyance, indigestion, worry, pain

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and many others, and not only through drink. To know whether a person's ability to drive had been impaired I would say that it would be necessary to have some knowledge of how the person drove before he had a drink. He might be a bad driver anyway. To take an extreme case, a tired person might drive better rather than worse if he had revived or steadied himself with a single whisky. There is no indication in this clause as to what degree of impairment will be necessary to secure conviction. As I have already said, "impaired" is an extremely vague word. There can be various degrees of impairment, but I think the way in which the word "impaired" should be defined is in the words of my Amendment—namely, so as to cause danger to other road users. I beg to move.
Amendment moved—
Page 1, line 10 at end insert the said words.—(Lord Teynham.)
THE LORD BISHOP OF CHESTER: I rise to express the hope that your Lordships will not accept this Amendment; and I do so upon two grounds. First, it seems to me to be a tautology, for if a person's ability to drive properly on the road is impaired, then I cannot think that it is otherwise than impaired to the danger of those who might be on the roads. But there is also a more profound reason why I would oppose this Amendment. It is a dreadful reproach on all of us that it is necessary to have this legislation at all, and it is a particularly dreadful thing that there are people who are prepared to take motor cars on the roads when their faculties have been impaired for one reason or another. I do not think that the reproach has been sufficiently marked upon the outlook of the ordinary man and woman in the street, and I should regret anything which in any way minimised the seriousness of the situation with which we are faced.
It is a dreadful thing that in the last ten years three-quarters of a million people should have been killed or seriously injured as the result of road accidents. We know that a great many of them have been due to the lack of proper roads and so on; but we also know that, fundamentally, the cause has been a lack of individual responsibility
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on the part of all who use the roads, both pedestrians and motorists. It seems to me that this Amendment would to a certain extent soften the impact of this Bill upon the consciences of ordinary people, and for that reason I hope that we shall not accept it.
THE EARL OF LUCAN: I should like to urge the Committee, as the right reverend Prelate has done, not to accept this Amendment. The noble Lord who moved it said that it went further than the last Amendment, but he did not say that it goes in the opposite direction—it goes in the direction of relaxing the powers of this Bill. As the right reverend Prelate said, the whole object of this Bill is to deal with those who have not sufficient discretion to know that when they drink their faculties are impaired and they should not drive. Anybody whose ability to drive is impaired is, being in charge of a lethal weapon, a danger to others on the roads. Therefore I hope that this Amendment will not be accepted.
LORD SOM̃ERS: I should like to support the Amendment, in spite of the remarks of the right reverend Prelate and of the noble Earl, Lord Lucan, because I feel that one has to consider this Bill as aiming at one thing—namely, producing more safety on the roads. If one has not drunk enough or consumed enough drugs to cause danger on the road, then surely there is no harm in it. Equally, and for another reason, as my noble friend said, who is to say whether or not a man's driving is impaired? How en earth can anybody say, seeing a man drive after he has had a few drinks, that his driving is impaired, if that person has not seen him drive before? That is something that nobody can ever prove. Therefore I feel that the clause as it stands is unworkable, and that this Amendment is the way in which to ensure safety to all.
LORD ELTON: Surely both noble Lords who are supporting this Amendment are suffering under an illusion when they say that "impaired" means driving worse than one did at some previous time. Surely "impaired" means prevented from driving properly. If a man has reached the stage where he cannot drive properly, for the life of me I fail to see how he can be anything other than a danger to other road users. To

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add these words to the present wording seems to me a mere tautology, intended to weaken this clause.
VISCOUNT MASSEREENE AND FERRARD: I should like to support this Amendment. So far as I know, we have no scientific evidence to indicate how drink affects various people. Some people are even advised by their doctors (I am told, to keep their blood pressure up), to have two or three double whiskies a day. We can prove that they have so much alcohol in their blood, but we cannot prove their impairment or lack of judgment in regard to driving. Therefore, I support the Amendment.
LORD AMWELL: I feel that the case against this Amendment has been fully made out. The niggardly attempt at perfectionism always seems to me to be dangerous. We found examples of that, for instance, in the Obscene Publications Bill. When I was training to be a journalist and to be able to write English, one of the first things I gathered was the danger of qualification—that nouns were usually stronger with adjectives, and that the adjectives always had to be fully justified. I think that that applies to this case. Surely the word that we are dealing with now is sufficiently strong by itself, and if you include a qualification of this character—the same point applied to Lord Taylor's Amendment—there is a weakness which often allows advantage to be taken, if people are inclined that way. I would oppose this Amendment.
THE LORD PRESIDENT OF THE COUNCIL AND MINISTER FOR SCIENCE (VISCOUNT HAILSHAM): I do not think we can accept it. There are two basic fallacies in this Amendment. The first argument which my noble friend put forward in support of it was that people may be unfit to drive for reasons other than drink or drugs—they can be tired, they can be incompetent anyway, or they may be suffering from some other disease. The defect in that argument is that it fails to realise that this clause of the Bill is amending Section 6 of the principal Act which defines the offence as
"driving or attempting to drive when unfit to drive through drink or drugs";
and all the new Bill does is to define what is meant by "unfit to drive through
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drink or drugs". It says that a man shall be taken to be unfit to drive if his ability to drive properly is, for the time being, impaired.
In passing, I would say that if a man is tired or ill he should take rest, and not more alcohol; and he is all the more likely to commit the offence if for other reasons his driving is already impaired. That is the only advice a lawyer could give any man who proposes to go on the road. Indeed, I have known many cases of people who have been trapped into this offence because they were tired and thought a whisky-and-soda would not make their driving any worse. But that is not the reason; the reason is that which I have given.
Secondly the Amendment proposes to insert the words:
"to such an extent as to be likely to cause danger to other road users".
The answer is that those words are unacceptable. I believe they are inserted only because of failure to read properly the wording in line 10 of page 1 of the Bill as drafted; because if that word "properly" is read, the only meaning which could be attached to the proposed Amendment is the suggestion that there may be a class of man whose ability to drive properly through drink is impaired but none the less cannot be guilty of being a danger. Our view is what I believe to be the view of the overwhelming mass of people in the country, that if a man cannot, by reason of drink or drugs, drive properly, he is a danger to people if he tries to drive. There is no third class of person. There are only those two classes: those who are fit to drive and those who are not; and those who are not fit to drive should not drive.
LORD TEYNHAM: I do not propose to weary your Lordships with some of the arguments I could use about points that have been raised. I appreciate that the word "properly" governs the clause to some extent; but as I believe the general feeling of the Committee is against my Amendment, I beg leave to withdraw it.
Amendment, by leave, withdrawn.
Clause 1 agreed to.
Clause 2:
Evidence on charge of unfitness to drive
2.—(1) In any proceedings for an offence under the said section six, the court shall have regard to any evidence which may be given of the proportion or quantity of alcohol or of any drug which was contained in the blood or present in the body of the accused, as ascertained by analysis or measurement of a specimen of blood taken from him with his consent, or of water or breath provided by him, at any material time; and if it is proved that the accused, when so requested at any such time, refused to consent to the taking of or to provide a specimen for analysis or measurement, his refusal may, unless reasonable cause therefor is shown, be treated as supporting any evidence given on behalf of the prosecution, or as rebutting any evidence given on behalf of the defence, with respect to his condition at that time.
(2) For the purposes of any such proceedings, a certificate purporting to be signed by an authorised analyst, and certifying the proportion of alcohol or any drug found in a specimen identified by the certificate and, in the case of a specimen not being a specimen of blood, the proportion of alcohol or of that drug in the blood which corresponds to the proportion found in the specimen, shall be evidence of the matters so certified and of the qualification of the analyst:
Provided that the foregoing provision shall not apply to a certificate tendered on behalf of the prosecution unless a copy has been served on the accused not less than seven days before the hearing or trial, nor if the accused, not less than three days before the hearing or trial, or within such further time as the court may in special circumstances allow, has served notice on the prosecutor requiring the attendance at the hearing or trial of the person by whom the certificate was signed.
(3) In any such proceedings in Scotland, a certificate complying with subsection (2) of this section and, where the person by whom such a certificate was signed is called as a witness, the evidence of that person, shall be sufficient evidence of the facts stated in the certificate.
(4) In this section "authorised analyst" means any person possessing the qualifications prescribed by regulations made under section eighty-nine of the Food and Drugs Act. 1955, or section twenty-seven of the Food and Drugs (Scotland) Act, 1956, as qualifying persons for appointment as public analysts under those Acts, and any other person authorised by the Secretary of State to make analyses for the purposes of this section.
3.44 p.m.
LORD ELTON LORD ELTON moved, in subsection (1), to leave out "have regard to any" and insert "be provided with". The noble Lord said: This is the first of a short series of Amendments, the collective effect of which, if they were adopted, would be to render the chemical tests which are described in Clause 2 compulsory. I am advised that it would be
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for the convenience of your Lordships if I said what few words I have to say on the main point now; and I shall be as brief as I can because the Amendment which follows my three Amendments, that is, No. 6, in the name of the noble Lord, Lord Silkin, and the noble Baroness. Lady Wootton of Abinger, I believe would have the same effect of making tests of this kind compulsory. I hope, therefore, that there may be something to be said on that point from the Benches opposite.
It seems to me there are two fairly simple propositions on which one can base one's appeal for a compulsory rather than a voluntary test. We have to remember the tragic proportion of the annual aggregate of deaths and serious injury which is due to drunken drivers. Nobody knows exactly what that is, but we do know in respect of holiday deaths on the roads, which are the series of deaths which have been most carefully studied and in respect of which we have the latest figures—Christmas, 1959—that 56 per cent. of all deaths over that period were due to drunken drivers or drunken pedestrians, and that after 10 o'clock at night the percentage actually rose to 80.
Dr. Spriggs, who has devoted years of research to this question and was for many years police surgeon at Leicester, examined a series of deaths occurring over three years in Leicester, Leicestershire and Rutland. I believe it was a series of 254 deaths. He came to the conclusion that 50 per cent. of those deaths occurring after 10 o'clock at night had been due to drunkenness and that over the whole period, day and night, all the year round, at least 10 per cent. of those deaths had been due to drunkenness—which would mean about 500 deaths in the whole country in the year.
Quite apart from statistics, it is, of course, a matter of common experience that the roads are more dangerous after closing time, and particularly shortly after closing time. We probably all know friends who would do almost anything to avoid driving on the roads at that period. In the Second Reading debate the right reverend Prelate the Lord Bishop of Carlisle told us that when he has to attend a meeting on a Saturday evening he always makes a point of explaining to his audience—at some risk, one might suppose, of being misunderstood—that he must go off early in order

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to be home before closing time. Nobody would dream of a state of affairs in which a pilot was allowed to fly an aeroplane or a driver to drive a railway engine when in a state of partial intoxication, and I have little doubt that historians of the future will look back to our astonishing tardiness and reluctance about clearing the roads of the drunken driver as one of the more inexplicable scandals of the twentieth century.
Secondly, as to the reliability of tests, I think we must remind ourselves that there is a complete consensus of opinion among those best qualified to know. The experts assure us that these tests are 100 per cent. reliable. The Committee on Alcohol and Road Accidents, set up by the British Medical Association, the Road Research Laboratory and Dr. Drew's Committee, are all unanimously agreed that these chemical tests are reliable.
THE EARL OF ARRAN: I am sorry to interrupt the noble Lord, but not all experts agree on this, as I have endeavoured to point out.
LORD ELTON: We all know there is no subject on which all the experts are agreed, but, to the best of my belief, all the official committees which have studied this subject over a long period and with every facility—and the British Medical Association Committee have been studying it for ten years—are agreed on the reliability of this test. I am under that impression but I am subject to correction. And, as we were told in the debate last week, as long as a year ago The Times said there could be no further question but that these tests are reliable. It is no longer a question of a "hunch ".
Often these tests are talked about as if they were some startling new invention appropriately put forward in the age of space travel, but of course we do not depend only upon research. We have before our eyes the example of the successful use of these tests pretty well all over the world. They have been successfully employed in Norway for more than 30 years. They have been used in Glasgow for more than 20 years and they have been in use in 47 States of the United States of America for
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varying periods, in most of them over considerable periods. This is not some fantastic new brain-child of Her Majesty's Government, but something which many other Governments have employed for years and thereby have saved countless lives and countless limbs.
If this form of test is not to be compulsory, then it seems to me it will be avoided too often and left unused; and where it is used it is bound to be regarded with less respect by the courts and by juries, on the assumption that if it were really reliable the Government would have had the courage to make it compulsory. Of course, the reason why the Government have refrained from doing so, as I suspect, is, as they would put it, that public opinion is not yet ready for this change. It all depends what is meant by "public opinion". It is quite true that there is no great popular campaign and obvious backing for such a change. But that is because, unfortunately, none of the political Parties has ever really interested itself in this, which I regard as perhaps the greatest social evil of our day. You could whip up far more enthusiasm and interest about far less important subjects.
Those of us who, for a generation now, have been trying to rouse interest on this subject believe that if the Government would take this step they would be surprised at the amount of support which they would find behind them. There is no question of the gratitude which they would earn when the saving in life which would result from compulsory use of this test began to accrue. In the Second Reading debate the right reverend Prelate the Lord Bishop of Carlisle, who asked that this test should be compulsory (and who is sorry that he cannot be here this afternoon owing to a very important engagement in the North), did not claim to be speaking on behalf of the Bench of Bishops; but I should be very surprised if there were not a majority for his view among his right reverend colleagues.
Similarly, the noble and learned Lord, Lord Denning, who also asked that this test should be compulsory, did not claim to be speaking on behalf of Law Lords as a whole; but I suspect and hope that his opinion would be endorsed by his colleagues. I hope and believe that Law Lords in general would endorse the wise

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words used by my old friend Lord Conesford in the Second Reading debate. He said [OFFICIAL REPORT, Vol. 230 (No. 65), cols. 439 and 440]:
"… these tests can substitute accuracy for inaccuracy and certainty for doubt. They can, indeed, provide the court with the best available evidence.… If the court is not to be allowed the benefit of chemical tests when available, then, in effect, the court is to be denied the best evidence."
He concluded by suggesting that, for that reason, the exclusion and not the admission of such tests would be contrary to the best principles of British justice.
So I hope that the Government will not be too doubtful about the reception of a more courageous second clause by public opinion. And I certainly hope they will not make the mistake of supposing that the opposition to it by the motoring organisations necessarily rep-presents the opinions of the members of those organisations; because, for some mysterious reason, whenever a proposal is advanced which seems likely to make motoring safer for the law-abiding, competent driver, who is in the vast majority of drivers, or to penalise or restrict the lawless and incompetent drivers, who are a very small minority, then we seem to have to count on the automatic opposition of motoring organisations—as they opposed the introduction of the speed limit without any sort of consultation of their own members. We know—at least it is my submission—that if this were made compulsory we should reduce deaths on the road largely by the deterrent effect of the knowledge that there was this sure method of detecting the drunken driver. And, if that be so, is there in the last resort any excuse for refraining from using an instrument which might vastly reduce the annual tragedy on the roads?
Amendment moved—
Page 7, line 12, leave out ("have regard to any") and insert ("be provided with").—(Lord Elton.)
3.55 p.m.
LORD SILKIN: I should like to support this Amendment. I do not know whether or not the actual terms of the Amendment will stand up, but in this House we generally find that no Amendment that is moved from any part of the House, other than a Government one,
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is completely satisfactory. Although I have an Amendment on the Paper, which is the next following the three Amendments with which the noble Lord, Lord Elton, is concerned, I do not suppose that my Amendment is any more satisfactory than the one which he is moving. But what we are discussing is the principle of compulsory tests as against the method set out in Clause 2. I should be quite satisfied, as I am sure the noble Lord, Lord Elton, would be, if the Government were to say that they accepted the principle.
On the occasion of the Second Reading I expressed some doubts as to how far these tests had been completely established as a safe means of testing the alcohol content in the blood; I was doubtful. But I am bound to say that, as the debate proceeded and I heard tile speeches both of the noble Lord, Lord Chesham, from the other side, and of my noble friend Lord Taylor, and the speeches of other noble Lords, I became satisfied that the tests as we know them to-day are a reasonable means of establishing what it is intended to inquire into, namely, the alcohol content, and whether the condition set out in Clause 1—to be unfit to drive through drink or drugs—is satisfactorily determined.
In passing, I had intended—but I overlooked it—to say a word on the Question that Clause 1 should stand part of the Bill and to ask about drugs. We have spoken almost entirely on the effect of drink and I do not know whether it is possible to test in the same accurate way for the effect of drugs as for drink. Perhaps when the noble Lord comes to reply he will deal with that point. Accepting for the moment that that is possible, I think that the case for a compulsory test has been made out.
Clause 2 was criticised on Second Reading by a good many noble Lords on the ground that a refusal to submit to the test would virtually cause the conviction of the person who refused, unless he had special grounds for refusal. It was assumed that a refusal was virtually evidence of admission of guilt. On the other hand, the noble and learned Lord, Lord Denning, said he had never known a case where a person had refused to have a test; and, in fact, other noble Lords confirmed that. So the practical effect of making it compulsory, if that is

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so, would be very slight. I think that none of us likes these words in the clause which suggest that a refusal is to be regarded as an admission of guilt unless there is evidence to the contrary, and there are a number of Amendments down on the Paper in respect of those particular words. I think that making the test compulsory would eliminate that difficulty.
I do not want to add much to what the noble Lord has said as to the merits of this proposal. As I say, my only hesitation hitherto had been due to some doubt as to whether these tests were sufficiently accurate to justify making them compulsory or to justify using them at all. Because I am bound to say that, if the tests were not satisfactory or there was some doubt about them, there would be equal objection to using them in the way that is provided in Clause 2—that is, by assuming the person is guilty if he refuses without good cause—as there would be to making them compulsory. The whole of the theory of Clause 2 is based on the assumption that we have reached the stage where these tests can be relied upon, and if they can be relied upon I am bound to say that I see no case for not making them compulsory. So I shall be interested to hear what the views of the Government are; and, if they are against making them compulsory, why they are against it when, as I say, in practice, they are virtually making them compulsory, and it has been stated on very high authority that there is, within the experience of noble and learned Lords who ought to know, no known case of a refusal. I therefore support this Amendment.
VISCOUNT HAILSHAM: I do not know whether I might be allowed to say something at this stage, but I think we are in danger of getting into rather a muddle on this Amendment. I have been briefed by rather painstaking people about the effect of these Amendments, and so little does this Amendment, or anything like it, have the effect which the noble Lord clearly desires it to have, that those who are briefing me did not even define its purpose in briefing me about its defect. I must tell him exactly what the defect is. He is not by this Amendment proposing that the tests should be made compulsory at all: he is proposing that they should be
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made universal, which is a very different thing. That is to say, the effect of passing his Amendment will be that you cannot get a conviction unless a test is applied.
I will deal on other Amendments with the issue of compulsion, but everybody knows that in practice there is no prospect of having these tests universally applied when suspects are taken in. There simply is not the apparatus available, at the different hours of the night and day at which suspects are taken in, to have the tests carried out in a satisfactory manner—for instance, in a country police station at three o'clock in the morning. All the noble Lord is providing by this particular Amendment is that the police cannot get a conviction in cases of this kind, even though the clinical evidence and the evidence of behaviour is absolutely overwhelming, unless one of these scientific tests is taken—and this is almost precisely the opposite of what he intends. I would suggest that we discuss the issue of compulsion, up to a point, on the next Amendment, because this one, so far as I am advised—I have been taken rather by surprise by this because, as I say, I was so little aware of what was in the mind of my noble friend that I was briefed to answer quite a different point—would have the opposite effect to what he intends. I think it would be more convenient to take the issue of compulsion on the next Amendment, which does raise it.
LORD BEVERIDGE: May we have an assurance that it will be possible to debate the issue of compulsion on the next Amendment if we do not pass this one?
VISCOUNT HAILSHAM: Perhaps I may be allowed to answer the noble Lord. I am sorry that, like all other questions, it is not absolutely capable of a "Yes" or a "No". In relation to these tests, "compulsion" is a word which may mean a number of different things. The next Amendment raises the question in relation to blood tests but not in relation to urine or water, because in relation to urine or water the consent of the accused is not necessary at present for the purpose of the clause, but the Amendment omits the word "consent" in relation to blood. The effect of that, as we see it, will be to enable the

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evidence to be given, irrespective of whether the accused had given his consent or not. Of course, to that extent it will be legitimate to raise the question of compulsion; but, as I shall have to say when we come to deal with it, that is not really the issue which the Committee would have to face if it had to face the question of compulsion. If you want to make a test compulsory, what you will ultimately have to do is to make it an offence to refuse. Neither of these Amendments does that.
I will go into this point in greater detail on the next Amendment, because I think it is more convenient then; but if you want to make a test compulsory you will not do it by either of these drafting devices. You will have to put in a new clause to make it an offence to refuse a test. That is the only way in which it can be done which is not objectionable on absolutely insuperable grounds which are intrinsic in the case. But I should like to discuss the question of compulsion more fully on the next Amendment, because this Amendment is based on the quite false assumption that you could introduce facilities for a test in every place at the moment, which you could not do. What you would do would be to tie the hands of the police in a number of cases where the evidence, apart from the test, was already overwhelming.
LORD ELTON: I understand that it would be more convenient to discuss the basic principle on the next Amendment, but, before we leave my Amendment, may I ask: has the noble Viscount said, in effect, that you cannot really introduce compulsion because there may be country police stations where you could not apply these tests, and where you could therefore not get a conviction because you could not apply the test? If that is what he says—I may have misunderstood—is that really the case? Would not a person who is apprehended for being drunk in charge of a car in fact be driven to a police station, as he is now, which has a police surgeon available?
VISCOUNT HAILSHAM: There are two different questions here. I think the noble Lord is taking a very rosy view of what there is available late at night in a country police station. It is a tri-
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bute to the blamelessness of his life, but it is an unreal picture that in a country police station there is a police surgeon available. There may or may not be, and there usually is not. But the point is this: there cannot be a universal test if you are going to get convictions in guilty cases now. This Amendment would provide for a universal test, and it is administratively impossible. You could, of course, impose a compulsory test without imposing a universal one, because you can make it an offence for a man to refuse to have a test if it is offered him, and therefore the question of availability would not arise. But that is a separate issue which strictly does not arise on this Amendment, and would properly arise only if somebody put down a new clause to say that it was an offence to refuse a test if one was offered. I hope I have made that plain.
LORD TEYNHAM: I hope Her Majesty's Government will not consider making these tests compulsory, because there is at present in the police stations no difficulty at all about getting the urine test, and so on. I should like to take this opportunity of correcting one or two points raised by my noble friend Lord Elton on the question of accidents caused through drink. According to police statistics, only 0·9 per cent. of all casualties and 2·1 per cent. of fatalities in recent years were due (and, even then, only in part) to drink. There is some evidence to suggest that in some places the percentage figure may be somewhat heavier. For instance, I think the chief constable of Barrow, on February 6, 1960, put the figure for accidents caused by drunken drivers at about 3 per cent. This rate would be higher at certain times of the day or at certain periods of the year, but, in general, the evidence so far suggests that consumption of alcohol by drivers is responsible for only a remarkably small percentage of accidents.
LORD DERWENT: May I ask the advice of my noble friend the Leader of the House? I want to deal with this matter from the point of view that I think both this Amendment and the next Amendment are due to a misreading of Clauses 1 and 2. I do not know what would be the most convenient moment to discuss that.
VISCOUNT HAILSHAM: I was hoping that, in the light of the general explanation I had given, by noble friend would withdraw this Amendment and we should then get on to the next, which raises different and much wider issues which are more germane to the type of subjects which the noble Lord wants to discuss.
LORD ELTON: In those circumstances, I will certainly withdraw my Amendment.
Amendment, by leave, withdrawn.
4.9 p.m.
LORD SILKIN: I am not going to make another speech on this Amendment because I have said what I wanted to say on the Amendment set down by the noble Lord, Lord Elton; but the noble and learned Viscount the Leader of the House has borne out exactly what I said: the difficulty of finding appropriate words, by way of an Amendment, to meet the point that we want to put before the Committee. But if we can discuss Amendment No. 6 on the basis that it is an attempt to eliminate the optional test and to make it compulsory, then the exact way in which we do it, whether by way of a new clause making it an offence not to submit to a test, or whether it can best be done by amendment of Clause 2, is, I think, irrelevant in this House. I think the material thing, is to discuss the principle. I should like to reserve any further comments until I have heard what other noble Lords have to say. In the meantime. I beg to move Amendment No. 6, and with it goes Amendment No. 10.
Amendment moved—
Page 1, line 16, leave out ("with his consent").—(Lord Silkin.)
LORD DERWENT: May I speak now? I think it is a suitable moment. It seems to me that the method in which the Government have so far indicated they wish to handle this matter is the best one. Clauses 1 and 2 deal with an offence which is that of being unable to drive properly due to drink or drugs. The Amendments seeking to make testing compulsory seem to me to be dealing with an entirely different offence which does not appear in the Bill at the present time. These tests are for the purpose of producing corroborative evidence of some quite different offence. The offence is not that of having a certain
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alcoholic content in the blood or in the urine, but is as stated in Clause 1. I do not think these tests can be made compulsory, without creating an entirely new offence.
It seems to me that the way the Government are handling the matter is perfectly simple and adequate. First of all, before anyone is tested there must be a prima facie case that the person concerned is incapable of driving and that his driving is impaired. Then, when they want to, the police say: "We wish to have corroborative evidence in the form of tests", and the Bill says that the result may be produced as corroborative evidence. Clause 2 then goes on to say that when a person refuses to have those tests taken, that fact can be stated in court. Indeed it can. It is proper evidence, so far as I can see; indeed, I think that happens now, without this clause. I believe that to tinker about with this clause, on the basis of making these tests compulsory, is, as I say, to do something which the Government have shown no intention of doing; that is, to create a new offence, that of having a certain alcoholic content in the blood or urine. I do not believe that the noble Lords who were trying to make these tests compulsory meant that to be a separate offence.
LORD TAYLOR: As I understand it, there is a rather odd situation here. Apparently one does not have to give consent to have a specimen of urine taken. One does not have to give consent to provide a specimen of expired air for the breathalyser, although one would have to participate in such a test, and would, therefore, de facto, give consent. It is only in the case of blood, apparently, that one has to give consent. I find this a little confusing. I hope that I have read the clause aright, and have correctly understood what the Leader of the House has said. If a person refuses to operate the breathalyser, is that to be cited as evidence in court: that he refused to participate in that test?
LORD CONESFORD: Might I inter-rupt the noble Lord for a moment? I think the noble Lord has it slightly wrong. What I think my noble friend on the Front Bench was saying was that the effect of the deletion of the words "with his consent", where it is proposed

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to delete those words, only concerned blood. If the noble Lord will look at the clause, he will see that it says:
"a specimen of blood taken from him with his consent, or of water or breath provided by him …"
Then it goes on:
"and if it is proved that the accused, when so requested at any such time, refused to consent to the taking of or to provide a specimen for analysis or measurement"—
—that refers not only to blood but to other things as well.
Lord TAYLOR: I thank the noble Lord, Lord Conesford, for his explanation. I am still a little confused as to why a man's consent is required for the taking of blood specifically, as opposed to air.
4.15 p.m.
VISCOUNT HAILSHAM: I do not want to take too much time in these debates except to answer them, but I am wondering whether it would help the Committee if I tried to explain a little about what is the policy underlying this section, and then discussed the Amendment in relation to it. I do it only if it be of advantage to the Committee, but I think it would make things a little clearer than they are for this purpose. When dealing with the question of drink and driving we start with a number of options, if we are going to legislate. The present law says that if a man cannot drive properly—speaking in simple language—he is guilty of an offence. It does not lay down any definite level of alcohol in the blood, as being, of itself, an offence. There are a number of countries which do that, but that is a quite different option. There are, of course, a number of Amendments down, at least two that I can think of, which would have the effect, later on, of inserting such an offence in this Bill, or, alternatively, of making a certain level of alcohol presumptive evidence of the commission of this offence. That we can discuss when we come to it, When we look at this, we shall see that there are certain disadvantages in so doing; but that is one option. This section, however, keeps the present law, with the intention of clarifying it in various ways. But the basic conception is that if a man takes enough drink to impair his ability to drive properly, he is committing an
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offence and will lose his licence; and other consequences follow.
Then comes the question of these tests. These tests are nothing like so accurate as my noble friend suggested. If he looks at Appendix A of the Drew Report, he will see that there is tremendous variation in the results, and even they have only 95 per cent, certainty. But leaving that difficulty aside (because we do think that the tests are valuable), the question is for what purpose we want to use them. The tests will not, in themselves, tell a man whether he is able to drive a car, for there are various personal idiosyncracies which come into play. I could quote the Drew Report in many ways. For example, there are different kinds of temperament, different kinds of body weight; different kinds of body health; the amount of food consumed; and personal experience of drinking may affect the individual subject a great deal. They are not, therefore, in themselves, tests of whether or not the man can drive a motor car. In practice, suspects in this country are not taken in at random, as in some countries where the level of alcohol is the test, and where people are stopped in the street and compulsorily made to blow into a tube, or are taken to a police station to provide a sample of some kind. Here, suspects are taken in because their behaviour, in one way or another, has given rise to the suspicion of clinical symptoms of drunkenness which are then corroborated, or otherwise, by the use of the test.
The value of these tests, as I see it, is primarily to find out the answer to the crucial question in every case of this kind: how much the man has had to drink. It will not show whether he is drunk; but if he says that he has had one small whisky and soda only in the last 24 hours, and the test shows 150 milligrams per 100 millilitres, then one can say he is "telling a whopper"!
THE EARL OF ARRAN: With all respect to the noble Viscount, I do not think one can say anything of the sort. The evidence seems to be that we all have a certain amount of alcohol in our systems to start off with.
VISCOUNT HAILSHAM: Yes; some of us more than others. I can assure my noble friend that the scientists who have pursued these very long and deliberate

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inquiries are fully alive to the various ways in which the tests can be inaccurate, and they have made allowance for that. I am only saying that if you do take one of these tests, after a man has given a totally inadequate account of the amount of alcohol he has had, you can check the truth, or otherwise, of what he is saying if he shows himself to have had a few more than he claims. Indeed, if you apply the tests properly on the "fail safe" method, you can say he has had at least x double whiskies and sodas, or their equivalent. This very often will determine the result of the case one way or the other.
In passing, I may say that they can also determine the result of the case in favour of the accused. I think it is a great pity that one should assume that these tests are entirely for the purpose of convicting people. They are for the purpose of ascertaining the facts about people who are suspected. Let me say to all concerned that there is no clinical symptom of alcohol which cannot be reproduced by some other condition of the body. The result is that if you take in these suspects who have shown clinical symptoms of alcohol, aberrations of behaviour, or aberrations of driving, and test them to see whether they have any alcohol in their blood, if he is a man who is like my noble friend—
THE EARL OF ARRAN: That is, 55 milligrams, not having consumed any alcohol at all.
VISCOUNT HAILSHAM: I suspect that my noble friend must have had his skin sterilised with pure surgical spirit before taking the test. But the point is that if you have none in your blood, it helps you, not hinders you.
LORD SWAYTHLING: Might I ask whether, if these tests are taken, they will be produced in evidence, whether they support the prosecution or not? It should be compulsory, if the test is in favour of the accused, to produce the result as evidence.
VISCOUNT HAILSHAM: It is ordinarily the duty of prosecuting counsel to produce all relevant evidence before the court. It is the ethical duty of counsel to provide the court with the available material evidence, whether it helps the prosecution or whether it points in the opposite direction. That is the normal
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course of action when prosecuting, and I think that the whole Bar would support me in this statement of legal ethics.
LORD SILKIN: Would that not stop the prosecution in proper cases?
VISCOUNT HAILSHAM: I was going to say to the noble Lord, who has far more experience in one branch than I ever had, that normally if the test were found to be negative one would not prosecute. That is going to help the defence as much as the prosecution.
The point I must make is that these tests are not infallible. It is the case that, where suspects are asked to take a test, the doctor sterilises either the skin or the instruments with surgical spirit, and sometimes with acetone, which invalidates the whole procedure. Only a few people are sufficiently skilled to be relied upon to make a test. A blood test is at the moment likely to require a certain amount of blood from the veins. It can be painful. In my own case, as I suffered from jaundice, it is extremely painful because the veins cannot be seen and have to be probed for. Moreover, in some cases there is a danger of hæmophilia, and in some people there is religious prejudice (although the right reverend Prelate will not favour them), and the test involves a technical assault. One cannot obtain blood from anybody without doing that to his body which, done without his consent, constitutes an assault.
Of course it is possible to legalise assault. It is possible to say that, notwithstanding the refusal of the man, the police should be permitted to hold him down while he struggles and a surgeon inserts a pipette in his vein and takes a 2 c.c. sample of his blood. This will happen if you authorise it Personally I think it is going a deal too far: I think it is an undesirable thing to do. If we accept this particular Amendment, which is to omit the consent requirement in relation to blood tests, we should incite its being done without legal authority. It is also proposed that the result should be allowed to be taken in evidence after the test has been done. That, too, is most undesirable. This may be a purely drafting point, though I do not think so. But certainly in my view it is highly undesirable to allow the police, against a man's will, and therefore, presumably, against his resistance, forcibly to take samples of

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blood from the veins of his body. I do not agree with it. If the Committee are against me here, there may be something to be said about it, but that is the matter that the Committee have to face.
There are precedents for doing this kind of thing in other countries, but there they always do it in conjunction with other procedures; and, secondly, they do it by making it an offence to refuse. They do not do what Lord Silkin's Amendment would do. They do not legalise assault, but say simply that certain consequences, other than compulsory submission to the test, will follow if you refuse. What we have sought to do in this connection is to say that it is reasonable for the police to ask you whether you will submit to such a test if they have a proper test available. The worst that can happen is that the court will learn the amount of alcohol in your blood. If you refuse, the consequence will not be punishment, but the jury or magistrate will be told that you have refused, and it may be that they will draw whatever sensible inference is to be drawn from your refusal; and unless there is some satisfactory excuse, such as a religious objection, the court may conclude that you did not want your blood to be examined because you knew full well that a damaging quantity of alcohol would be found within the blood. I think that is the right way to handle the question.
I should like to add a word about the other two tests—the urine and breath tests. The urine test is not a bad one. Your Lordships will find the details in an Appendix to the Drew Report. The results are not quite so accurate as those from the blood test, but the urine test is a fairly good one, although it suffers from certain disadvantages. In the first place, if a suspect refuses the test, he can always say that he is physically incapable of producing a sample, and in order to achieve a satisfactory degree of accuracy it is necessary and desirable to obtain two successive samples with an interval of not more than half an hour between. Thirdly, it is much more difficult and more objectionable to take it from a woman late at night, where there is not a policewoman available. So there are a number of reasons why the urine test, which is otherwise perhaps the best, has certain disadvantages attaching to it.
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There is the breath test. There are three commercial instruments that I can think of, all with extraordinary names—the breathalyser, the drunkometer and the alcometer—all of which terms will cause my noble friend Lord Conesford's hair to turn white.
THE EARL OF ARRAN: Another one is the intoximeter.
VISCOUNT HAILSHAM: They are all discussed at length in the Drew Report. I should tell the Committee (because I think it may influence your Lordships' judgment), that we believe that we shall get a satisfactory instrument within a reasonable time, perhaps within eighteen months. We have asked the Medical Research Council to examine the matter as one of urgency. At the moment the instruments are not sufficiently accurate to make them entirely satisfactory for universal use. But in general—and everything one says about this is only generally, not universally, true—if these instruments are used, it will be for the purpose of establishing suspicion, and not guilt—that is to say, to establish the need for a more satisfactory test at the police station. It is not the original breath test which is used to establish guilt.
Although there is one other offence which arises on a later Amendment—namely, the desirability of creating a separate offence with a definite level of intoxication—I believe that the existing law that we have chosen is the right one; that is to say, we intend to provide these tests, and provide them on an increasing scale as they become more and more necessary, not to compel people to submit to force and accept them; not to make the refusal a criminal offence in itself; but to allow the court to draw the right inference from them, knowing that the right inference may be favourable to the accused. They will establish the truth about the condition of his body at the time of his alleged offence, which will show whether his clinical symptoms and eccentricities of conduct are due to personal idiosyncrasy or a pathological condition, or whether it is likely to be due to the presence in his blood of an undesirable quantity of alcohol. That is my general attitude. But on the particular Amendment moved by the noble Lord, I would ask him to agree, as I am

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sure he will, that simply to remove the words "with his consent" from this clause would have the effect by implication of inciting the police to commit an assault, without legalising it.
EARL FERRERS: May I ask the noble and learned Viscount one question? He said that in other countries where the breathalyser is used it is used mostly to confirm suspicion, and a person is taken to the police station for a proper test. Does he mean that if the breathalyser is used in this country it will be used outside the police station? I understood from the noble Earl, Lord Dundee, when he replied to the Second Reading debate, that these tests would be conducted only inside the police station after the suspect is taken there.
VISCOUNT HAILSHAM: I have been referring, I am afraid slightly inaccurately, but I think with general accuracy, to the practice in other countries. But it differs very widely. And we have to remember, to make it even more difficult, that for the purposes of this consideration every state in the United States of America—and there are 50 of them—counts as a separate country. What I said had no bearing on the practice in this country.
LORD MERRIVALE: Will the driver be given an option to chose whichever form of test he likes? For instance, he may refuse a blood test, but may accept a breath or a urine test. If he accepts a urine test and refuses a blood test, will it be considered that he has given his consent?
LORD TEYNHAM: In the use of the breathalyser, what happens to the man who cannot breathe at all?
VISCOUNT HAILSHAM: I think it helps him, because his breath cannot be analysed for alcohol. But I would say respectfully to my noble friend that you cannot arrange in every case, late at night, or in some part of the country or some part of a town, that all three tests will be contemporaneously available. These are matters which will be given in evidence before the court. If, for instance, the blood test is tendered and the suspect says: "I am quite prepared to provide a sample of my urine", and the doctor is present in conditions which make it reasonable for that to be
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taken as a sample and tested, obviously no jury would convict on a refusal to submit to a blood test, because there may be good reasons for the refusal. But I could not undertake on behalf of the Government, in the present state of knowledge or in the present state of available facilities, that in every case where a test of any kind was going to be tendered a test of all three kinds, with an option, must be tendered, because I think that would make the subsection unworkable.
VISCOUNT MASSEREENE AND FERRARD: I am told that if we have this breathalyser it will be only a short time before some clever chemist introduces a powder which can fool the breathalyser, and which I am sure would sell like hot cakes.
VISCOUNT HAILSHAM: I am sure that the Medical Research Council will not get a grant in that direction.
LORD HAWKE: I thank my noble Leader for a most remarkably clear exposition of this point, but I should like to ask him one question. The Bill says:
"unless reasonable cause thereof is shown."
Suppose that a man, who has perhaps read the literature that has been sent to me, has such doubt upon the accuracy of any of these tests that he says, "I refuse to submit to them," would the court consider that a reasonable cause for refusing to submit?
VISCOUNT HAILSHAM: I am aware of the eyes of several noble and learned Lords looking at me with a basilisk stare, but I will say in their presence what I have no hesitation in saying is right: that what is reasonable is a question for the jury, where there is a jury, and not for the judge. What you have to do, if you refuse on those grounds, is to satisfy the jury, in the circumstances, or the court, if it is a court composed of magistrates, that your conduct has been reasonable. That will depend, to some extent, on the conviction you carry as a witness.
LORD SILKIN: The noble and learned Viscount has given a number of reasons why my Amendment is not acceptable, and the first puts me in great difficulty, because I had assumed, before suggesting that the test should be compulsory, that it was virtually infallible. I have

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read the report, and my reading of it was that there was a considerable margin of error. Even a 5 per cent. margin of error would, I thought, be considerable in a case of this kind, especially if you are going to assume that the person refusing without good cause is guilty. There was also a certain amount of margin of error in the test itself which was conceded, although I was not in a position to say what it really amounted to. But I was assured by the noble Earl who replied to the debate, and my noble friend, that I need have no fear about these margins of error or about the fallibility of the test. It was on that assumption that I put down the Amendment.
If now there is a doubt as to the validity of the test, and a substantial margin of error, then I should be the first to say that it ought not to be compulsory. I would go further and say that it would be wrong to draw conclusions from the fact that a person refused to submit to the test. I think that the two go together. Can you really regard a person as guilty if he refuses to submit to a test which, on the admission of the noble and learned Viscount, is not necessarily a conclusive test? We can discuss that point later on, but it certainly weakens my case for pressing for this Amendment.
The second point the noble and learned Viscount makes is that the facilities will not even necessarily be available at all times; and especially that at those times when more people are liable to be driving under the influence of drink those facilities will not necessarily be available in a number of places. Therefore, to make the test compulsory when you are not in a position to impose it would be futile. Finally, the noble and learned Viscount tells me that my Amendment is wrongly worded, in any case; that it does not achieve what I want to achieve, and I should have to do it by providing a new clause making it an offence for a person to refuse to submit.
For all these reasons, I am not in a position to press this Amendment. But I should like to give the matter further thought, and I hope that the Government will, too: because we are really discussing a principle, and the means by which we achieve it—the exact wording and so on—are not important. It is a
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question whether we should be right to say to people who prima facie are guilty of an offence, or are suspected of an offence, that they must accept the findings of the test. That is the issue which we have to consider. I am obliged to the noble and learned Viscount for the fair and reasonable way in which he explained the difficulties that confront me in pressing this Amendment. For those reasons, I do not propose to proceed with this, nor, of course, with the consequential Amendment No. 10. But I suggest that we might all think about this again. Certainly I will, and if necessary we can have another discussion at a later stage. There was one question I asked which has not been dealt with. We have talked all along about drink. What is the position about drugs? Is it possible to test for drugs in the body, and is it easier to do so? Do the noble and learned Viscount's remarks refer to drugs as well as to drink?
VISCOUNT HAILSHAM: I would say, first of all, that I am sorry I did not deal with the point. I was, I am afraid, concentrating entirely on the subject of drink in what I said. But my remarks applied to drink. I cannot give an absolutely confident answer about drugs. Perhaps the noble Lord, Lord Taylor, would know more than I would. But, of course, drugs cover a very wide range of substances indeed, and I am sure it is easier to test for some drugs than others. I certainly should not think that the same tests which would be applicable to alcohol in the blood, urine and breath, would necessarily be valid for drugs, and I very much doubt whether their validity has been the subject of anything like extensive research.
LORD SILKIN: May I say that if the noble and learned Viscount will look at this clause, he will find that it contemplates testing the blood for drugs, and it assumes that a person who refuses unreasonably to permit the test may be regarded as guilty. It treats drugs and drink in exactly the same way.
VISCOUNT HAILSHAM: I think I ought to find out what the true answer to this question is, but I am fairly sure that I am right in saying that there are drugs of very different kinds. Some

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find their way into the blood, and some do not. Take, for instance, a substance like aspirin. If you take sufficient aspirin you will be guilty of this offence. If, like me, you suffer from hay fever and have too much of the anti-hystamine drugs, you will be committing this offence. It always has been so—this is no change in the law—ever since 1930. I could not say off-hand—perhaps I should have armed myself—whether there is a comprehensive test which can apply to drugs. I can only say, from some experience in the courts, that these cases are very rare in comparison with those of drink. I will cause an inquiry to be made, and try to give either the House or the noble Lord some fairly general answer about tests for drugs, because I think it is a perfectly fair point.
LORD TAYLOR: Might I intervene on two small points, first, on the question of the margin of error of these tests, to which the noble and learned Viscount has referred, and to which my noble friend, Lord Silkin, has referred with some anxiety? I think the margin of error varies with the different kinds of test. I think the blood test is, in fact, the most accurate. The degree of accuracy is about plus or minus 5 per cent., which is a good figure and certainly is enough to distinguish between one double whisky and three double whiskies absolutely conclusively. The accuracy of the urine test is second to this, and is of the order of plus or minus 10 per cent. I actually tested out the breathalyser machine on my son on the Saturday before last at the Forensic Science Society, where it was being demonstrated. I gave him the money to buy 21 pints of beer. We went there, and three hours later he registered 90 milligrams of blood alcohol per 100 millilitres. He was unfit to drive; his driving was impaired. He was full of himself, and thought he could drive extremely well. I did not let him and he admitted afterwards that he should not have been allowed to, anyway. It showed up beautifully.
I think it was Miss Long, a colleague of Professor Drew who wrote the report, who was operating this machine. I asked her: "What is the maximum error this machine has ever exhibited in your hands?", and she said, "It is very rarely we get any errors, but the maxi-
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mum we have ever had is 30 milligrams per 100 millilitres." So if you have a reading of 80 milligrams it could, in five cases out of 100, really be 50 milligrams. That is the worst error the machine can make, and that is a very rare occurrence. It is usually within plus or minus 15 milligrams of the reading. So it is a pretty good machine. And in these very broad determinations, whether it is one double whisky or three double whiskies, it will be accurate, I think one could say virtually always, unless the machine has been improperly used, or unless, of course, as the noble and learned Viscount said, the test has been improperly taken.
THE EARL OF ARRAN: How would the noble Lord explain a blood alcohol content of 55 milligrams without any alcohol having been consumed?
LORD TAYLOR: I would say that the test has been wrongly done by an incompetent person.
THE EARL OF ARRAN: The noble Lord is referring to a biological chemist with a degree of science attached to a hospital.
Amendment, by leave, withdrawn.
LORD TEYNHAM: This is quite a simple Amendment. Its object is to ensure that a doctor is present when a blood test is taken. I suggest it is also necessary for a doctor to be present to decide whether a suspect at a police station is in good enough condition to give his consent for a sample of blood to be taken. The suspect might well be suffering from shock as a result of an accident. I beg to move.
Amendment moved—
Page 1, line 16, after ("consent") insert ("in the presence of a medical practitioner.")—(Lord Teynham.)
THE EARL OF DUNDEE: The noble Lord has made it quite clear that this Amendment applies only to blood tests, and not to urine or breath tests. It is the invariable practice of the police to make sure that the medical practitioner is always there when a blood test is taken. I am sure your Lordships will agree with me that it would be most undesirable that a blood test should be taken without a medical practitioner being present. In practically every case it is the medical practitioner who performs the

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blood test himself and, of course, if he performs it, he will have to be present. There might be a case in which, for some special reason, some other individual would actually make the jab, but in any case it is essential, in my submission, that a medical practitioner should be there, supervising it. That being so, although I would not say that the Amendment is strictly necessary, in view of the invariable practice I see no harm in accepting it. I have also consulted a Parliamentary draftsman who thinks there is no reason why it should not be accepted in its present form, at least for the time being, and I therefore advise your Lordships to accept it.
LORD SILKIN: Before the noble Earl is so obliging, does this mean that even where there is a medical practitioner carrying out the test there would have to be another medical practitioner present?
THE EARL OF DUNDEE: Certainly not.
LORD SILKIN: It could mean that. The noble Earl will no doubt look at it again.
THE EARL OF DUNDEE: I will certainly look at it with that consideration in view. I pointed out in my remarks just now that if a medical practitioner took the test he would be bound to be present he could not perform the test in his absence; and that is one reason why one might not think the Amendment strictly necessary. But I think there is no possible objection to the inclusion of those words in the Bill. I do not think it could deceive or puzzle anybody, and I have taken advice before deciding to advise your Lordships that you can accept this Amendment. We will, of course, look at it again on Report.
LORD TEYNHAM: I am grateful to Her Majesty's Government for accepting this Amendment.
On Question, Amendment agreed to.
4.51 p.m.
LORD DERWENT LORD DERWENT moved, in subsection (1), to leave out "water" and insert "urine". The noble Lord said: In moving this Amendment I have very little to add to what I said on the Second Reading. This Bill may one
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day become an Act; if we are going to have Acts of Parliament, and if we know what we mean, we ought to say so. We know that here we mean urine; it has been referred to throughout. What the Bill says is water. Even in the Palace of Westminster, where odd things happen sometimes, I cannot imagine an occasion when water and urine are the same thing. I beg to move.
Amendment moved—
Page 1, line 16, leave out ("water") and insert ("urine").—(Lord Derwent.)
VISCOUNT HAILSHAM: This phrase has come in for trouble on the Second Reading, and my noble friend has moved his Amendment. On the Second Reading he described the Bill as it stands as "how genteel can we get!", and the noble Lord, Lord Taylor, referred to it as "Grundyesque". The Parliamentary draftsman has hit back—Shakespeare: Henry IV, Part II, Act I, scene II:
"Falstaff: 'What says the doctor to my water?'"
"Page: 'He said, Sir, the water itself was a good healthy water: but for the party that ow'd it he might have more diseases than he knew for!'"
None the less I must not be pedantic. We must move with the times. We live in the age of the New English Bible, when charity is referred to as love. I therefore accept the Amendment.
THE EARL OF ARRAN: Would the noble Viscount guarantee that the word "breathalyser" will not be allowed on the Statute Book?
LORD CONESFORD: May I point out that in the passage from Shakespeare which my noble and learned friend quoted there could be no ambiguity, but, if the word stands in the present measure, it could be read as implying that a specimen of saliva could be taken. There are numerous States in the United States which do provide for taking a specimen of saliva. Therefore, there would be some cause of confusion, and, while I greatly admire the hitting back of the Parliamentary draftsman, I think the case for the Amendment is overwhelming.
On Question, Amendment agreed to.
LORD TEYNHAM LORD TEYNHAM moved, in subsection (1), after "material time" to insert:
"and in addition a clinical examination by a medical practitioner".

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The noble Lord said: It is, of course, right that there should be some check on the truthfulness of the defendant's account of what he has drunk. On the other hand, I suggest that it must be realised that there is no absolute scientific test to determine drunkenness. The whole clinical picture of the defendant must be taken into account. The noble Lord, Lord Taylor, has given some details of tests by breathalyser, and I gather that the error may be as high as 30 milligrams either way. It must be remembered, however, that with the same levels of alcohol in the blood one man is drunk and another sober. We should also recognise that intoxication cannot with certainty be tested from the level of alcohol in the blood unless it is so high that clinical drunkenness would be obvious.
Another difficulty I find is what is meant by the words "material time", owing to the differing rates of ingestion of alcohol in different people. If the specimen is taken at the police station some time after arrest, the alcohol might not have got into the bloodstream to any appreciable extent so as to affect driving at the time of the arrest. I maintain that it is very important that the whole clinical picture of the defendant should be taken into account by the doctor. I beg to move.
Amendment moved—
Page 1, line 17, after ("time") insert the said words.—(Lord Teynham.)
THE EARL OF DUNDEE: This Amendment would make it necessary that before evidence could be produced in regard to urine and breath tests it should also be supported by the evidence of a clinical examination by a medical practitioner. I am afraid that the Government cannot accept this proposal. I should like to read to your Lordships two short sentences from the British Medical Association's conclusions about this matter. One of those sentences gives reasons for having a medical practitioner to make a clinical examination and the other a reason against it. Paragraph 5 of the conclusions says:
"Clinical examination in the absence of biochemical tests is neither sufficiently sensitive nor reliable enough to detect deterioration in driving performance to a degree specified in the Bill."
The clinical examination would not in itself add anything to the value of the
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evidence supplied from the tests. There is one respect, however, in which clinical examination might be of value, which is mentioned in the B.M.A.'s next paragraph. They say:
"Clinical examination is an essential part of the examination of persons suspected of driving vehicles under the influence of alcohol since it is the only way of detecting physical illness and the presence and extent of any injury."
That is to say, it is not necessary to establish the evidential value of blood or urine tests at all. It may be necessary if the accused person wishes to represent that his fault in driving is due to some illness or injury and is not at all, or not mainly, due to the fact of his having had anything to drink.
As the law stands, it is open to the accused to ask for examination by a doctor selected by himself if he is able to obtain the services of one. That doctor would, of course, be free to make such clinical or chemical examinations as he saw fit, and the accused would be able to set the evidence resulting from such examination against the evidence submitted by the police. This Bill will make no change in that respect. Any person who thinks there is any reason to plead illness or some other cause will be entitled to have, at the earliest possible moment, a clinical examination by any doctor. But to make it a condition of the validity of the evidence of tests in the event of a prosecution that there should also be in all cases a clinical examination by a doctor, would, in my submission to your Lordships, be unnecessary; and it would also create delays which would make it very difficult to apply the law at all. It might be that the doctor could not be obtained for a very long time, and that by the time he got there the tests would no longer he as valuable as they would have been if they had been taken earlier.
Therefore, while assuring your Lordships that there will be no derogation of a man's right to have a clinical examination for the purpose of establishing that whatever he may have done might have been due to some other cause such as illness, it would not, I think, aid justice to accept the Amendment which my noble friend has moved.
LORD TEYNHAM: In view of the fact that, as I understand from the noble Earl, the accused will still have the right

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to ask for a clinical examination if he so wishes, I do not propose to press this Amendment. I beg leave to withdraw the Amendment.
Amendment, by leave, withdrawn.
LORD TEYNHAM: As the clause is drawn, I think it in no way restricts the circumstances in which a driver may be asked to consent to be tested. I suggest that it is desirable to provide that such a request should be made only at a police station and when there are reasonable grounds for thinking that a driver will be prosecuted. I beg to move this Amendment.
Amendment moved—
Page 1, line 18. after ("requested") insert ("by an authorised officer of police at a police station in connection with an intended charge under section six of the principal Act").(Lord Teynham.)
LORD SOM̃ERS: I should like to support this Amendment. Although I think it highly unlikely that any motorist would be requested by anybody other than a police officer to undergo one of these tests, that is not stated in the Bill; and I think it should be. As the Bill stands, I am perfectly in a position when the House rises, to insist that the noble Viscount the Leader of the House shall come and have a blood test before he drives off.
VISCOUNT HAILSHAM: I am not going to drive off.
LORD SOM̃ERS: I think that that would not be a suitable position for anybody to be in, and I think that the Bill should make that plain.
5.2 p.m.
THE JOINT PARLIAMENTARY SECRETARY, MINISTRY OF TRANSPORT (LORD CHESHAM): I have been interested to hear what is behind these two Amendments. I think it might be convenient to take them together, because the answer is the same. I would say that these Amendments are not really necessary. I think that the noble Lord, Lord Airedale raised this question on Second Reading and mentioned a hypothetical set of circumstances rather similar to those just mentioned by my noble friend Lord Somers, the implication being that if you are asked by some private individual in that
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extreme circumstance in the street, and you refuse, you may then have something of a job to defend yourself although you are perhaps perfectly sober and innocent. But it would be clearly a perfectly reasonable matter of defence, if my noble friend Lord Hailsham were so accosted by my noble friend Lord Som̃ers on leaving the House, to decline to do so except at a police station, because undoubtedly my noble friend would not be equipped with a breathalyser, even if he knew how to work one, and he would not have the suitable equipment with him to take other tests. Therefore, if there were any reason for my noble Leader to be attacked in this way, he could quite justifiably refuse to provide a specimen for a test, unless it was taken at a police station, which is exactly what both my noble friends want.
So far as a police officer is concerned, he will not ask for a test in the street; he will automatically do so at a police station. He may ask, request or require somebody to accompany him to a police station; but that is a different matter. The request will be made at the station, simply because the equipment is there. We have already had it brought out this afternoon that that is where the tests will take place, so that part of the Amendment is also unnecessary. In the case of Amendment No. 11, the police can demand that a specimen be provided for test only in connection with a possible charge under Section 6 of the principal Act. They have no other ground for doing so. Therefore, I think that these Amendments are superfluous.
THE EARL OF GOSFORD: I do not know whether the proposers of these Amendments intend to withdraw them, but I personally am not very convinced by the noble Lord's argument. I was always brought up to think that the law should be as unambiguous as it can be, and that the last thing it should do, it it is possible to do otherwise, is to put the ordinary citizen in a position where he might be embarrassed in any way. I cannot see any harm in putting in here the words "by a police officer", or the other Amendment, because they represent what is intended.
LORD TEYNHAM: I should like to ask the Minister who is to reply for Her Majesty's Government, whether there is

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any reason why these words should not be written into the Bill. They will not harm the Bill in any way.
LORD CHESHAM: The way I feel is this. If my explanation has not found a great deal of favour, I have no strong feelings in the matter. I merely tried to show that, as I thought, both Amendments were unnecessary. But if your Lordships feel that it would be better to have something like this in the Bill I shall be quite prepared, if my noble friends can see their way to withdrawing Amendments now, to look at the matter again with a view to inserting an Amendment on Report stage. 'The reason for that is, that both Amendments, as drafted, leave something to be desired, principally in order not to make the thing too rigid. It might be quite reasonable and justifiable for the request to come from a doctor called in by the police and the police might then forget to repeat the request, as required for the sake of formality, in those circumstances the whole case might fall down, which I think would be ridiculous. In the case of a woman, the request might be made by a police matron who is not, by strict definition, a police officer. That would be done to save embarrassment. The request might even be made at a hospital. For these reasons, I should prefer not to accept the actual drafting of either Amendment, but to look at the clause again and try on Report to improve it in the way that noble Lords wish.
LORD TEYNHAM: I am grateful to my noble friend for his remarks. In the circumstances, I beg leave to withdraw the Amendment.
Amendment, by leave, withdrawn.
5.8 p.m.
LORD TEYNHAM LORD TEYNHAM moved, in subsection (1) to leave out all words from and "treated as" and to substitute "given in evidence on behalf of the prosecution". The noble Lord said: As the clause is drafted at present, the refusal to provide a specimen can be presented as supporting evidence given by the prosecution or rebutting any evidence given by the defence unless reasonable cause is shown for such refusal. At the present time no one can be required to incriminate himself; no one is obliged to make a statement to the police about an alleged offence or to allow a urine test. But the intention of
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this clause appears to be that in future refusal to submit to a blood or a urine test is to be taken as presumptive of the defendant's guilt.
I have already endeavoured to point out that a full clinical picture is necessary for a real indication of a defendant's condition. But if, for some reason, he exercises his undoubted right to refuse to be medically examined, and thereby perhaps fails to disclose something that might be found in his favour, the court may inadvertently be given a misleading impression, if it is to act on the evidence of analysis, possibly coupled with evidence of driving. It is true that the police frequently take fingerprints, and they also take the clothes in the possession of a defendant for the purpose of scientific analysis in the course of investigating a criminal charge. But this clause as drawn appears to make the taking of a sample virtually obligatory, and I suggest that the acceptance of this Amendment would go a long way to meet this objection. I beg to move.
Amendment moved—
Page 1, line 21, leave out from ("be") to end of line 24 and insert the said new words.—(Lord Teynham.)
5.10 p.m.
VISCOUNT HAILSHAM: With respect, I do not think my noble friend is right, either in his criticism of the draft or in his defence of his own substitute for the draft. I believe his own substitute does the same thing as the draft but without doing it so clearly. What is the purpose? He is going to put in that the refusal can be given in evidence on behalf of the prosecution. What is the purpose of giving evidence for the prosecution except for establishing the guilt of an accused or rebutting the defence he has put up?
All we have done is to try to do in the clause, with an unambiguity which was pressed upon us, exactly what the noble Lord would do with a certain degree of reticence—which I cannot think would be an advantage. But this is not just a drafting point. We mean to do exactly what we have said. I will admit it is true that it is a fundamental rule of criminal procedure in our country that people are not bound to give evidence against themselves, except in certain circumstances which are fairly rare.

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But this is not a question of compelling them. Indeed, earlier this afternoon I was arguing the reasons, which may or may not have been convincing, as to why I thought the objections to compelling them to submit to the test possibly were greater than the advantages. But one must at least allow a jury to know that a test has been offered and refused, if one is to allow a jury, or, indeed, a magistrates' court to know the truth. One's duty, after all, is to put before them such facts as are logically capable of giving rise to an inference, and all the facts of that kind in one's possession, and ask them to draw such inference as they think proper.
Artificially to prevent a court from drawing the inference which otherwise would be proper is to make a game of what ought to be an attempt to find out the truth, and I would respectfully say that the draft is all right as it stands. It is a reasonable compromise between severity, which would involve the compulsory test of the kind I have resisted, and laxness, which would allow anybody to refuse a test without that fact being immediately in evidence in the trial. I believe we have hit it off about right, and I would ask my noble friend, on reflection, not to press his Amendment.
LORD DOUGLAS OF BARLOCH: I am not convinced by the argument of the noble and learned Viscount. It may be that the Amendment which the noble Lord, Lord Teynham, has moved is not quite expressed in the way it ought to be, and may require re-drafting, but the effect of it, and its intention as I understand it, is simply to allow the fact of the man having been asked for a test, and his refusal to undergo it, to be given in evidence. Surely that is sufficient. It is conceivable that in certain circumstances an inference in favour of an accused might be drawn, but as the provision is drafted at the moment it appears that an inference of that kind is automatically precluded. I think it would be sufficient for the purpose which the Government have in mind if the clause were to say simply that the fact that a test has been asked for and has been refused shall be given in evidence, and it will then be for the court or a jury to draw what deduction they please from it; but it ought not to be pre-judged.
LORD AIREDALE: I should like to support the noble Lord, Lord Teynham, on this Amendment. I would ask the noble and learned Viscount whether it is the function of Parliament to tell courts how they shall treat evidence—because that is what the clause says:
"refusal … may … be treated as supporting any evidence"
and it goes on to say how that shall be taken. Surely it is the function of Parliament in certain proper cases to say that certain evidence may be given before the court, but it is the province of the court to say how that evidence is to be treated. If the court of first instance falls into an error and treats evidence in the wrong manner, that should be corrected not by Parliament but by the appropriate Division of the High Court—either the Divisional Court, in the case of magistrates, or the Court of Criminal Appeal in the case of quarter sessions. Surely the noble Lord, Lord Douglas of Barloch, is perfectly right about this. Parliament should restrict its decision in a case like this to saying that such a matter shall or may be given in evidence; and how that evidence is to be treated should be entirely a matter for the court of first instance and, if necessary, for the appropriate appellate court.
LORD HAWKE: I thank the noble Lord, Lord Airedale, for making my speech for me.
VISCOUNT HAILSHAM: I am afraid I cannot altogether accept this reading of the case. My noble friend has proposed an Amendment which provides that for the formula contained after the word "be" in line 21, we should insert the words:
"given in evidence on behalf of the prosecution."
As far as I can judge, it is true that that is tantamount to inviting the court to draw from that an inference hostile to the accused, because that is the purpose of giving evidence on behalf of the prosecution. It is not correct to say that the Court of Appeal can necessarily rebut such evidence. If it was a jury trial, the Court of Criminal Appeal would never be able to consider that, because they would not know what went on inside the jury-room; and in a magistrates' court case, the Divisional Court could not consider it, on any procedure known to me, because that court

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does not exercise that type of supervision over the magistrates' court. Therefore, we can only leave the matter somewhat at large, but with a clear indication of what the Government wish to do, as they have spelled out here.
But there is, on reflection, one added disadvantage in what was said by the noble Lord, Lord Airedale, because I believe he has not read the formula in relation to the earlier part of the sentence. The point of putting in the formula as inserted in the draft is surely that we are providing (and it may be that we are doing it in a positive rather than a negative way) that the evidence of refusal can be treated in that way only if no reasonable cause for the refusal is shown. In other words, this is a provision for the protection of the accused, limiting the extent to which a hostile inference can be drawn, and is not a provision to his disadvantage.
The only effect of omitting the formula which is a means of limiting the extent to which a hostile inference can be drawn—since it arises only because a reasonable explanation is not given—is to say it can be given in evidence on behalf of the prosecution and then failing to say why. As a matter of fact, I have absolutely no doubt in my own mind, although I know other lawyers doubt, that in this particular clause, whichever of the two formula' we take is simply a repetition of the existing law. That is to say, it corresponds to what is done in every court of the land where the law is properly applied; and the purpose, of putting it in is simply to prevent misapprehension where misapprehension might exist. I was told before this Bill came before Parliament that that was certainly the law in Scotland. I believe it is the law of England. The purpose of the clause is to clarify it, so that there shall be no doubt about it.
LORD TEYNHAM: I am not very happy about that explanation of the noble and learned Viscount. I wonder whether he would consider looking at this matter again before the Report stage.
VISCOUNT HAILSHAM: Yes, most certainly. Since the point has been raised, I will report back to my right honourable friend what has been said here. I am very conscious that the
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draftsmanship of this part of the clause is not absolute perfection. The only trouble is, I cannot for the moment see how it can be improved; but I will certainly do what my noble friend asks.
LORD TEYNHAM: I am grateful to the noble and learned Viscount, and on that understanding I beg leave to withdraw my Amendment.
Amendment, by leave, withdrawn.
5.20 p.m.
LORD ELTON LORD ELTON moved, after subsection (1) to insert:
"Where evidence is provided that the blood-alcohol content exceeds 150 mg/100 ml. it shall be regarded as prima facie evidence that he was guilty of the said offence. If evidence is provided showing the blood-alcohol content to be less than 150 mg/100 ml., supporting clinical evidence shall be necessary to prove impairment of ability to drive properly"
The noble Lord said: I think. I shall have to withdraw this Amendment, which is really connected with the earlier Amendments already withdrawn, and is no doubt wrongly worded. Before withdrawing it, however, I should like to know whether this is the Amendment, or one of the Amendments, to which the noble Viscount referred when he spoke of the later Amendments that would create a new offence. That was not my understanding of these words. I thought the point was that a man was accused of the said offence—driving a car in an improper manner on the road—and if he had more than a certain blood alcohol content this particular content (and I am more familiar with it in the percentage form than in milligrams) is intended to be the level of which the B.M.A. Committee said:
"We cannot conceive of any circumstances in which it could be considered safe for any person to drive a motor vehicle on the public roads with this amount of alcohol in the blood."
That would mean that this amount would be accepted as prima facie evidence of his guilt of another offence—not of the offence of having consumed too much alcohol but of having driven dangerously on the road. No doubt there would be many people with smaller blood alcohol contents whose driving was impaired Some of us may remember from our undergraduate day, some undergraduates (possibly ourselves among them, for a time) who could be considerably intoxicated when a champagne cork went off in the next room. So if we had

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anything of this sort we should be leaving out of the net, so to speak, a very large number of people who were, in fact, dangerously impaired; but we should have the level at which, according to the B.M.A. Committee, nobody would be safe.
VISCOUNT HAILSHAM: Before my noble friend makes up his mind on the question, may I say that there is no reason why he should treat this Amendment as consequential upon his other Amendments, unless he wants to do so. They are not logically or necessarily connected. I am not inciting him to move an Amendment, but I do not want him to feel that he must withdraw it.
LORD ELTON: I should like to hear the noble Viscount's views and I beg to move the Amendment.
Amendment moved—
Page 1, line 24, at end insert the said subsection.—(Lord Elton.)
VISCOUNT HAILSHAM: I was going to say that it might be convenient to deal with this Amendment and the next one together. Although they raise slightly different points, I think they could conveniently be dealt with together. They have different bearings on the same theme.
THE EARL OF LUCAN: Your Lordships will have seen the next Amendment, which stands in the name of my noble friend Lord Silkin and myself. Lord Silkin, I should say, has had to leave for another engagement. It will be seen that the Amendment is drafted differently, but it is aimed at ventilating the same principle, which is that the criteria of impairment of ability to drive should be the alcohol content of the blood as measured by these tests. The noble Viscount said that this is, of course, an alternative method. It is a method which is, I believe, adopted in some countries. It is founded on the phrase in the B.M.A. report quoted by the noble Lord, Lord Elton: that persons with more than a certain quantity of alcohol cannot be deemed able to drive properly. My noble friend and I have no strong feeling on this Amendment, but we think it is a matter that should be ventilated, admittedly fixing the level of alcohol.
Your Lordships will notice that we do not in, this Amendment suggest any
1012
particular figure to be written into the Bill. We think it more appropriate that it should be laid down from time to time by the Minister, as medical knowledge indicates. We think that this is worth consideration as a method of judging. It would have its disadvantages as much as its advantages. By any method, no doubt, some dangerous drivers would escape unconvicted. Nevertheless, we think that this should be considered and we should like to hear the view of Her Majesty's Government on this method.
LORD DERWENT: I hope that Her Majesty's Government will make no regulations as to the amount of alcohol at all. I believe that those who are putting down these Amendments are moving Amendments which will have exactly the opposite effect to what they desire. I would refer the Committee to a most interesting series of experiments carried out by Mr. Newman, in Chicago. They are particularly interesting because at certain stages and in certain circumstances, so far as I know, they are the only tests which combine clinical tests with road tests afterwards. In these tests, a certain number (I will go into the details in a minute) of people had gradually increased amounts of alcohol put into them and were tested for driving afterwards. A part of Chicago was cleared from all other traffic, and to make up for the lack of traffic they put narrow bollards and such things, which were rather difficult to see, at key points, and so on. He started off with 141 people being tested and his final tests were done with eight people. Those eight he got up to 150 milligrams; and, rather to his surprise, seven out of eight passed the tests with flying colours. The eighth failed. What Mr. Newman found during the test was that at a much earlier stage, particularly with the very young, an almost insignificant amount of drink made them incapable of driving properly. If we put a figure into the Bill, or lay one down by regulation, we should, I think (as they have found in certain States of America), require to have such a high figure, in order to be fair, that the person who reaches it is virtually paralytic and we shall only confirm what we can see with our own eyes.
I believe that this question of using these tests of the amount of alcohol content is a matter to be argued by doctors in evidence in the court. I believe that

1013
that is the proper way of handling it. I feel certain that, on balance, it would be far wiser if Her Majesty's Government did what they are doing at present, and did not issue such regulations and did not put figures of alcohol content Lao the Bill.
LORD TAYLOR: I hope that Her Majesty's Government will not accept the Amendment moved by the noble Lord, Lord Elton, because that, in particular, would defeat the object of the Bill. For a person to have a blood alcohol of 150 milligrams per 100 millilitres will mean that he is manifestly intoxicated. Those are just the people for whom there is not much problem either way. In such cases these tests are not very necessary. It is the cases of minor impairment, those that are not obvious on clinical examination, where the blood test is so important. Therefore, I think that this Amendment would defeat the whole object of assessing minor degrees of impairment, which could be ascertained only by estimations of blood alcohol, which would usually be between 80 and 150 milligrams per 100 millilitres. So I think that his Amendment really is not a practicable one.
With regard to the question of regulations, I believe that we shall one day come to the laying down of regulations, when we have had a good deal of experience of the working of this Bill and it is possible to give practical guidance on the basis of such experience. I have no doubt that the Minister will issue some kind of guidance, or will have to issue something equivalent to the Drew Report, but in non-scientific language—because the Drew Report does give, in scientific language, this sort of guidance. I should hope that my noble friend's Amendment might be accepted, not with a view to putting it into operation immediately, but with a view to putting it into operation in due course, when experience has justified it. I think that courts may have a little difficulty at the start in knowing what levels they are to regard as indicating impairment, and that they will require some guidance as to the existing scientific findings.
VISCOUNT BRENTFORD: I also should like to urge Her Majesty's Government not to accept either of these Amend-
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ments, and I do so primarily on two grounds. The first ground is that, as I think was indicated by the noble Lord who has just spoken, there is a very great peril that, if a law is passed which indicates that a person is committing art offence if he has more than 150 milligrams of alcohol in his bloodstream, the courts, when they come to consider whether or not a person was driving under the influence of drink (as we used to say), will have to assume that if he had only 140 milligrams in his bloodstream then he was not drunk. There is that practical peril of fixing a hard and fast limit: that what is made a maximum automatically becomes a minimum, and vice versa. I would therefore urge, as we are all anxious to prevent the drunken driver from being on the road, that we do not encourage a person to feel that he is able to drive if he has not more than a certain amount of alcohol in his bloodstream.
The second ground upon which I urge that these Amendments should not be accepted is that, from all the evidence which has been collected, the method of testing is at present so much in its infancy that it is very uncertain and liable to a very wide margin of error. Particularly is it uncertain, not only as regards the efficiency of the machinery but also as regards the effect of alcohol upon the individual. The effect which alcohol has upon an individual varies, not only as between individuals themselves but as between the times and the circumstances in which the alcohol is taken; and it varies particularly according to what happened to the individual between the time he took the alcohol and the time when he was tested. All these things may well be resolved by the professions, particularly the medical profession, in the course of time, but they are by no means resolved as yet. And I cannot but feel that it would create consternation and confusion, and also a tremendous amount of between the motoring public and the Government, if they sought to impose a law which subjected the motoring public to the necessity for examination in such uncertain circumstances. I therefore hope that the Government will not accept these Amendments.
LORD WALSTON: I should like to oppose both these Amendments on the grounds raised by the noble Lord who

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has just spoken, and also on a further ground. We have heard a lot, quite rightly, about the Drew Report, but what people have not mentioned—no noble Lord who has spoken yet has made this point—is that the Drew Report, naturally, as any scientific report must be, is based upon average results. It is true that the average results shown here make it quite clear that, after the ingestion of a given amount of alcohol, on average a person is impaired in such a way that the chances are that he is not so good at driving. But the average reached obviously means that some people react more and others react less to that particular stimulus or that particular ingestion. The Drew Report makes that perfectly clear. On page 52 it is stated that in one particular case 10 subjects out of the 40 tested made less tracking error with alcohol than they did without. Then a little later on it is said that five subjects "improved" after alcohol.
I do not want to lay too much stress on that, but it is clear that the individual reaction to alcohol does vary enormously. For that reason, any of these tests which are designed to show how much alcohol has been taken are valuable, and are extremely valuable, as contributory evidence of the ability of a driver to drive his car properly; but, no matter what advance medical science or scientific research can make, until we produce a race of human beings where every single person reacts in exactly the same way to a given stimulus, we can never arrive at a stage where we can lay down a line and say that above that line a man is drunk, and below it sober. So I hope that the Government will make it quite plain in this Bill that alcohol tests of any kind that are introduced are merely another piece of evidence to be taken into account by the jury or by the magistrates, and are not in themselves infallible, black or white, "yes" or "no".
LORD HAWKE: I think that the Amendment moved by the noble Lord, Lord Elton, abundantly shows up the imperfection of these tests. The scientific literature at my disposal—and I have no doubt there is more in the possession of the noble Lord, Lord Elton—leads me to believe that 150 milligrams of alcohol per 100 millilitres of blood means that the subject has had about eight glasses of light
1016
wine or four double whiskies. Now, though I would trust myself to the driving of many of my noble friends after they had had a consumption of that nature, there are remarkably few women to whose driving I would trust myself after the consumption of even one-third of that level. That, to my mind, shows that this attempt to provide any specific figure is a very foolish one, and is likely to stultify itself in the long run.
VISCOUNT HAILSHAM: We did, of course, consider very carefully at the time we were drafting the Bill, whether to make, in either of its forms, a certain level of alcohol, in effect, a penal offence. You can, of course, do it by making it a separate offence, or you can do it by making it a presumption of impairment for the purposes of the existing offence. The latter of the two Amendments—that is to say, that of the noble Earl—in effect makes it a separate offence; because, although it takes the form of saying that it "shall be deemed proof of impairment", this does not, as does the Amendment of my noble friend Lord Elton, leave it open to the defence, so far as I can see it, to rebut the presumption. It really makes it a separate offence, however one drafts it.
Now we considered both these possibilities very carefully, but, rather for the reasons which have been given in debate, we decided against it—and, personally, I think that the objections to it are insuperable. The first fact one starts from is this. I do not think it is entirely fair to these tests to refer to their margin of error in this connection. This could be overcome, of course, by the "fail safe" method, by taking the maximum margin of error permissible in favour of the defendent and so weighting the testimony. Therefore, although this is an objection, it is not, I think, a conclusive objection. But the inherent objection remains. The truth is that different people tolerate alcohol to different extents. Hardened drinkers usually tolerate it better than people who are unaccustomed to drink. It is not, I must say to my noble friend, conclusively established that women tolerate it worse than men.
LORD HAWKE: Perhaps I should explain myself. I am thankful to say that, on the whole, women drink much less than men, and therefore are not so accustomed to it. That was my point.
VISCOUNT HAILSHAM: That may be true on the whole, but some people have thought that in this matter there are sex differences. Others have established, by other experiments, that there are not. However that may be, people have established a certain relationship between temperament and tolerance of alcohol; and really the margin is very wide.
Assuming that to be the truth (and if if is true, it will remain true, however often we experiment with it, and however much we may learn about it) any legislator is faced with this dilemma. We cart take a level of alcohol at the lower level—that is to say, at which a sizeable number of people will be impaired and a sizeable number of people will not—and we can say, as they do in a number of countries, that this establishes the offence, because it is for the protection of the public not to take the risk of people drinking too much. That is a perfectly fair option. But we think, on the whole, that this would not have a satisfactory result.
My noble friend Lord Brentford said that it would lead to bad relations; that it would mean the loss of the co-operation of a great number of the public, who would rightly say that, if we impose this law, a great number of innocent people—that is to say, people not impaired—will, in fact, be convicted. We think, that, on the whole, the loss of the confidence of the public in this law would be worse than any marginal advantage that might be gained by imposing it. The present law allows a court to take into account all the circumstances of the case; and if these circumstances, including the test, prove conclusively that a driver has drunk more than he should, then he is to be convicted. An arbitrary level excludes every factor except one—namely, the alcohol level in the blood—and owing to reasonable idiosyncrasy it would convict a certain number of innocent people.
May I say frankly to the House—although it is a matter of judgment, about which anyone may be wrong—that my conviction is this? By creating this offence we should lose what is one of the best features of the present situation. By and large, people—not merely the courts: I will not say the courts do not matter, because they do; but what matters far more than the courts is what
1018
people, the ordinary public, think of this offence—regard this as a serious offence. They realise that it is something for which they not only can be, but in certain circumstances ought to be, sent to prison. They treat it as something which imposes on one who is convicted of the offence a moral slur; and in consequence, they do a great deal, I think, to avoid committing this offence. If we were to impose a separate offence making the lower level the test of guilt, it would mean losing the sense of moral condemnation with which the public views this offence; and I think that in the end that would be an overwhelming disadvantage.
May I deal with the other half of the dilemma?—that is, if you take one option, the lower option of the two, either the average or the bottom possible level of impairment. If you take the other level, which my noble friend Lord Elton has chosen to do in his presumptive offence, you get a level at which, as he nightly says, the British Medical Association say they could not conceive of any circumstances in which it would be safe for a person to drive a motor vehicle on a public road. In that respect, they again differed from my noble friend Lord Hawke, who said that he had friends he would gladly commit himself to if they drove in that condition. But the British Medical Association say, rightly or wrongly, that this higher level was one at which they could not conceive of any circumstances in which it was right to drive. That means, in effect, as the noble Lord, Lord Taylor, rightly pointed out, that a great number of guilty people who commit the offence would not match up to that level.
It is all very well to say, and I know it is perfectly legitimate to say, in the calm atmosphere of this House, that what my noble friend proposes is that there should be presumptive guilt; that it would not prevent prosecution from being brought at levels below that. That is perfectly true. It is a legitimate point, and it is a question of judgment, if you accept it. But what we thought, after discussing this matter, was chat in actual practice in the courts it would come to be treated as a threshold, and not as a guide—a ceiling—beyond which conviction was certain. People would say, "I was not up to 150 milligrams per

1019
100 millilitres", and, on that ground, would be acquitted. We thought that that would hamper the object we all have in mind, not help it. We cannot demonstrate that that is the case. My noble friend may be right and the Government may be wrong. It is the sort of argument one can go on having for a very long time without achieving palpable certainty. I can only tell the Committee what our judgment of it was, and we still think that. Therefore I ask the noble Earl not to press his Amendment, because we think, although we appreciate the purposes behind it—and we have thought about it very carefully—that on the whole we would rather not do this.
LORD ELTON: I think that technically we are discussing my Amendment. I have not been particularly convinced by the arguments of noble Lords other than that of the noble Viscount who has just spoken. It seemed to me that the noble Viscount, Lord Brentford, was really arguing against tests at all at any time. Other noble Lords appeared to be saying that what was wrong with my Amendment, which I am going to withdraw in a moment, was that it would be dangerous to impose this level because there would be all sorts of levels lower than that at which drivers would be impaired, and it would be unreasonable and unfair that that should be so. But, of course, the purpose of the Amendment is to distinguish between those two categories. As the noble Viscount made clear, the level laid down in the Amendment is the level at which the B.M.A. Committee say that nobody could possibly be safe on the roads. Therefore, the Amendment would bring about the case that that state of alcohol in the blood would be regarded as prima facie evidence that an accused was guilty; whereas if one of my noble friend Lord Hawke's lady friends, or any of the other persons, was impaired at an earlier stage, there is no prima facie evidence, it is merely supporting evidence, and there has to be a clinical examination made as well. However, I see the force of the noble Viscount's argument. I think he treated my Amendment seriously and fairly, and in view of what he has said, I beg leave to withdraw it.
Amendment, by leave, withdrawn.
5.49 p.m.
THE EARL OF LUCAN THE EARL OF LUCAN moved, after subsection (3) to insert:
("() The Minister may by regulation prescribe proportions of alcohol in the blood, breath or urine, which, if exceeded, shall be deemed proof of impairment of the ability to drive.")
The noble Earl said: We had a full and interesting discussion on Lord Elton's Amendment. I will not reopen the subject, but I should like to move my Amendment in order to comment on a few of the speeches which have been made by noble Lords. I could not help regretting that the noble Viscount, Lord Brentford, brought in the question of ill-will which arises among motorists. It is a pity when that sort of talk is brought in. Obviously there will be on the part of everybody who is going to suffer by this Act of Parliament. We believe that the great majority of motorists are law-abiding, sensible people and this Bill is directed only against a minority. Therefore, do not let us be afraid of giving the Bill some force because of a feeling that we must not antagonise the motoring public. I do not think that that is the case. The noble Viscount, I think, took an overoptimistic view of public opinion on drunken driving. He talked of a wide sense of condemnation of this offence and said that the public realise what a serious offence it is. I wish that I could think so. But is it not the case that the continuing increase in casualties caused by drunken drivers is the reason for the introduction of this Bill?
LORD HAWKE: Could the noble Earl give figures, because we are in the dark about this? We do not have positive figures as to whether there is an increase in casualties by drunken drivers.
THE EARL OF LUCAN: I have not the figures by me, but the figures that the noble Lord, Lord Elton, quoted, which I think were misunderstood by some noble Lords, were the figures of casualties at 'holiday times and on Saturday nights after closing time. I think it is the seriousness of these figures that has caused this Bill to be introduced. I say that we should not be too much deterred from making the provisions of this Bill strict by the fear of antagonising the public. Further, we have heard for years that juries will not convict their fellow men of this offence for fear they may go

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to prison. Surely that is the foundation of our present campaign towards road safety.
I see the difficulties about drawing any hard and fast line, but I would say to my noble friend Lord Walston that, in any conviction for drunken driving, somebody has to make the decision whether a man is drunk or sober. It is a matter of judgment, and the fact that a jury or magistrate draws a line as a result of figures obtained by scientific tests does not seem to me any more reprehensible. There will still be mistakes made. But the question does 'arise: what use will be made of the figures obtained from these tests? If a jury or bench of magistrates are not to be told that an alcohol content above a certain level is likely to be dangerous, how can a charge be brought under Clause 1? If a driver is accused under Clause 1 of being unfit to drive, the court that tries the case is now going to have a medical report involving a number of figures of alcohol content. If it is dangerous to have a level above which an offence will have been committed, instructions will be given to the court in the use of these figures. I beg to move.
Amendment moved—
Page 1, line 24, at end insert the said new subsection.—(The Earl of Lucan.)
LORD DENNING: In regard to the question raised by the noble Earl, the ordinary practice in the courts now, when urine tests are taken is that the accused has his test given to him, if he wants his little test to himself, and the percentages are actually given in evidence in court by the analyst. He will say, or counsel will ask him and he will reply, that this percentage represents so many glasses of whisky or so many glasses of beer, and often says that, according to the British Medical Association, this is the sort of percentage which shows a very high level of alcohol in the blood. Therefore juries are able to deduce from the evidence given at the moment, without any specific direction given by Parliament about percentages at all.
LORD ELTON: As the noble Earl referred to the figures I quoted, and as the noble Lord, Lord Teynham, has contraverted them, may I say that the figures which I quoted were from a careful examination of holiday deaths, showing
1022
that 56 per cent. of deaths during the 1959 Christmas period were due to drunkenness, and 80 per cent. after 10 o'clock. I also quoted Dr. Spriggs, who examined 254 motorists at Christmas and came to a conclusion that 50 per cent. of those after 10 o'clock and 10 per cent. over the whole period contained an element of drunkenness. I think that the noble Lord, Lord Teynham, referred to an official figure of 0·57 per cent., but I am under the impression that that has long been abandoned by official quarters. Certainly the noble Lord, Lord Chesham, said on Second Reading that alcohol contributed to a far larger number of accidents than the official figure of 0·57 per cent. would indicate.
LORD AMWELL: Once again I believe that this is the sort of legislation that we should avoid. I would draw the attention of your Lordships to the terms of the Amendment. I take it that they mean, if they mean anything at all, that the Minister shall not only prescribe the proportion of alcohol in the blood, breath or urine which, if exceeded, means that the driver is unable to drive without the possibility of an accident, but shall also prescribe the amount below which it is possible for driving to be undertaken with perfect safety to the general public. That is what it implies. I suggest that the Minister is not capable of doing anything of the kind and should not be asked to do it.
VISCOUNT HAILSHAM: I do not want to add very much to what I said before. I think I made the position of the Government plain. I think that the dilemma is avoided by this Amendment. If the noble Earl opposite had not avoided it, I think he would have seen the difficulty in its top terms. If he had said what level, instead of just leaving it to the Minister, the Minister would have faced this dilemma: he could choose either the low level, in which case he would lose the confidence of the public, or the high, in which case a number of guilty people would get off. But the noble Earl never told us what the Minister should do. The difference between the noble Earl and the Government has been well pointed out by the noble and learned Lord on the Cross Benches.
The noble Earl asks me: what is the value of these tests? I would say that

1023
there are two points which make them almost indispensable, if we can get them. It gives us some indication as to what a suspect has actually been drinking. It gives us the objective level of alcohol in the blood. Like debtors, motorists seldom disclose the whole amount of their consumption, and some might genuinely have forgotten part of it, and it is better to find out what a motorist has had to drink, if he is going to be charged and tried fairly for this offence. Secondly, taken in conjunction with idiosyncrasies of behaviour and speech, the results of a test can build up an overwhelming case; but we shall not get idiosyncrasies of behaviour and speech corroborating at the right blood level so long as it is true, as it is, that the differences of individual intolerance of alcohol are very great.
The jury is told, or the magistrates direct themselves: "You have to look at the evidence as a whole, the blood level in conjunction with other things. If you come to the conclusion that this man should not have been on the road because his ability to drive properly had been impaired, then you convict him". That is what the test is for. Anything else brings in an element of artificiality in the interests of convictions which may or may not be justified.
THE EARL OF LUCAN: I am grateful to the noble Viscount for that explanation. We do not intend to press this Amendment, and I think it has been sufficiently discussed. I beg leave to withdraw it.
Amendment, by leave, withdrawn.
6.2 p.m.
LORD TEYNHAM: The object of this Amendment is to ensure that blood tests or other tests alone simply support evidence for conviction under the clause and can be used only as corroborative evidence, and that no conviction should be secured because of the refusal to submit to these tests. I maintain that these important provisions should be written into the Bill, and I think this Amendment will so provide. I beg to move.
Amendment moved—
Page 1, line 24, at end insert—
("() No person shall be convicted of an offence solely upon the evidence referred to
1024
in subsection (1) of this section or on his refusal referred to therein.").—(Lord Teynham.)
LORD MOLSON: I think this may be a convenient point for me to ask for an explanation from my noble friend Lord Dundee of what he said on this subject in his winding up speech on Second Reading. As I understand the purpose of the Government in this Bill, it is to ensure by a slight alteration in the wording that persons should be held to have committed an offence by driving when their judgment was impaired, without in fact being drunk or intoxicated in the ordinary sense of the word. My noble friend, when replying to the noble Lord, Lord Airedale, gave this explanation. He said [OFFICIAL REPORT, Vol. 230 (No. 65), col. 508]:
"I should like to make the answer perfectly plain: he cannot be convicted on the tests alone and, as has always been the case, if he is to be convicted of the offence he must have shown signs of intoxication, or of bad driving which seemed likely to be due to intoxication, before the test can be taken."
I think that those are two separate points. There is the case of having driven in a dangerous way, which may be evidence of the fact that his judgment has been impaired by the taking of alcohol. But I am rather troubled by this reference by my noble friend to the word "intoxication". This Bill is intended to amend Section 6 of the principal Act and, indeed, to tighten it up a little. Even in Section 6 of the principal Act there is no reference to intoxication; it merely refers to
"being unfit to drive through drink or drugs"
I hope, therefore, that it is not the view of the Government that this wording is going to mean that a person cannot be convicted of having been driving under the influence of drink—that is, when his judgment has been impaired—unless, as my noble friend said, in his behaviour there are unmistakable signs of intoxication. I can well imagine that a person might have been driving dangerously as a result of his judgment having been impaired by taking drink, and yet, when he got out of the car, there would be no sign that he was unable to walk perfectly straight or to talk without stumbling or slurring in his speech. Therefore I would ask the Government to explain what is really meant here, and to give an assurance that intoxication is not required in order to constitute the offence of driving under

1025
the influence of drink, but merely when the judgment for the purpose of driving has been impaired.
THE EARL OF DUNDEE: My noble friend Lord Teynham has not give any reasons in support of this Amendment, though I think I understand what is in his mind. The Government are opposed to the Amendment on the general principle that it is undesirable to put into an Act of Parliament unnecessary words which may sometimes be misleading. In this case I think they might possibly tend to give the impression that we are making some change of principle in the, existing law. We are not doing that at all. We are making no change in the existing law, but are merely clarifying it, for instance by the introduction of the word "impaired" instead of what was there before, and by encouraging the use of certain chemical tests, which were perfectly valid evidence before and are perfectly valid evidence now.
My noble friend Lord Molson has asked me to clarify the reply which I gave to the noble Lord, Lord Airedale, on Second Reading. I see that the noble Lord, Lord Airedale, who had another Amendment down, has taken it off the Marshall List and put his name to this Amendment instead. Perhaps the OFFICIAL REPORT, which I would correct in a small respect, might be slightly misleading here. What I was doing was quoting what had been said by the noble Lord, Lord Airedale, and then replying to it at rather great length. What I said was [OFFICIAL REPORT, Vol. 230 (No. 65), col. 508]:
"Lord Airedale asked a question … which I think was fundamental. He said, I think, that in the past it has always been a prerequisite of conviction for offences of this nature, driving when unfit through drink, that the person charged has shown unmistakable outwards signs of intoxication."
Then the Report goes on:
"If this Bill is passed as it stands"—
and there should be there inserted the words
"the noble Lord asked whether"
because I was still quoting from what the noble Lord said. These were not my words, but those of the noble Lord, Lord Airedale, to which I was about to reply. Owing to the omission of the words, "the noble Lord asked whether", it is not quite clear in the Report.
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But my noble friend Lord Molson will see that we went on talking about this matter for two and a half columns, and signs of intoxication was only one of several alternatives which might be reasons for a man being prosecuted for the offence of being in charge of a car, as it will now be, not when drunk or under the influence of drink, but when his ability to drive properly is impaired. I should like to make it absolutely plain again to the noble Lord, Lord Airedale, and to your Lordships, that I do not see how a prosecution could be undertaken or could be successful simply on the evidence of these chemical tests. I do not see how the medical test could ever be proposed or carried out unless there was some reason for it.
I have already made it olear—and the last two Amendments, I feel, will have duly impressed your Lordships—that we are not creating a new offence. The police cannot, as I understand they do in some Scandinavian countries, have a check point in the road, stop every car that comes through and request that every driver shall submit to a test to see whether he has more than a certain percentage of alcohol in his blood. The evidence which will be given as a result of these chemical tests being taken is not given to establish the offence that he had more than whatever it may be (·15 per cent.) of alcohol in his blood, because that is not going to be an offence any more than it is now. It is simply a means of trying to get all the evidence before the court which ought to be before it, in order to establish the truth in relation to some charge that he was in charge of a car or driving when his ability to do so properly was impaired.
I do not see how it is possible in practice that he could be convicted only on the evidence of these chemical tests of being in charge of a car while his ability to drive properly was impaired. If it is possible in theory that that should happen, then, of course, it is equally possible now, and this Bill would not make the slightest difference. In practice, however, the police would never have occasion to ask a driver to provide a specimen unless their attention had been drawn to the possibility that an offence had been committed, and not simply because there was evidence of intoxication.

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The noble Lord, Lord Shepherd, I think in the next column, interrupted and asked whether somebody who was observed to walk unsteadily towards his car without there being an accident could be asked to come and submit to a test. I said that I thought he could; but in that case there would be evidence that he had walked unsteadily towards his car. Of course, if there was evidence that he had been seen drinking ten whiskies and sodas in half an hour, even if he walked steadily to his car, that would be evidence that he might be driving or be in charge of a car while his ability to drive properly was impaired. In that case, he might be asked to take a test, and the test would add to the evidence either in his favour or against him, as the case might be.
The Bill does nothing to alter the present position, and it in no way affects the matters to be established by the prosecution. It only seeks, by redefining the offence with the use of the word "impaired", and by encouraging a wider use of chemical tests, to make it easier to establish the facts which are necessary to arrive at the truth.
As for the second part of the Amendment about refusal to give a specimen, of course it is difficult to see what this evidence could prove by itself, because there would not be any test and there would not be any specimen. You could not possibly prove that the man committed an offence simply because of his refusal to provide a specimen. There would have to be some other evidence. It is a matter of common sense. Therefore I would suggest to the noble Lord that it would be unnecessary, and probably undesirable, to insert these words in the Bill. I hope he will accept my assurance that we are not making any change in the principle of the law in regard to this matter.
LORD TEYNHAM: The noble Earl asked me why I put this Amendment down. On the Second Reading he made a point of saying that these tests would be used only as corroborative evidence. I did not quite understand why Her Majesty's Government were so averse to putting these things in the Bill. But I do not propose to press the matter this evening, although I should like to look at it again before the Report stage.
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Therefore, I beg to withdraw the Amendment.
Amendment, by leave, withdrawn.
6.14 p.m.
LORD TAYLOR LORD TAYLOR moved, after subsection (3), to insert:
"() The Secretary of State shall make regulations prescribing—

(a) the methods of collection of specimens of breath, blood and urine, and the apparatus and methods of analysis to be used, and

(b) the training necessary for persons using and maintaining the apparatus used for the analysis of the breath."

The noble Lord said: I hope very much that the principle of the next three Amendments will commend itself to Her Majesty's Government, even though my wording of them may be inadequate. They are designed simply to improve the quality, and to make sure that the quality of the tests is as good as it possibly can be. In small countries—for example, Denmark—I think it is correct to say that all the testing work of this type is centralised at one central forensic laboratory for the whole country. It is practicable there. Here we have a great many different police forces doing this work, and it is almost inevitable, unless there is some strong guidance, that they will adopt different techniques. When the noble and learned Viscount was speaking about the carrying out of these tests, he pointed out some of the risks which may occur through not taking specimens in a proper way. He reminded us that if the arm is cleaned with alcohol it may vitiate the sample, and may raise the level of the blood alcohol.
A NOBLE LORD: On Second Reading the noble Lord said that it was not of great importance.
LORD TAYLOR: It is quite true that it is not; but it is a possibility. There are other possibilities that can occur through the imprecise use of techniques. Even though it is of small importance, it is nevertheless desirable to avoid it. It is desirable that the job should be done as well as it possibly can be. That means that standardised methods should be laid down, standardised techniques employed and standardised collecting apparatus used. This is particularly important in the case of blood and urine, where it may be desirable that half of each specimen should be made available to the accused

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and offered to him in case he wants to get check analyses made.
So the first of my Amendments suggests that the Secretary of State should make regulations prescribing the methods of collecting a specimen, whether of blood, breath or urine, and the apparatus and methods of analysis to be used. Indeed, the noble and learned Viscount pointed out the different kinds of breath analysis machine which are available in the United States. I think it is correct to say that the Drew Report shows that one of these, the breathalyser, is considerably more accurate than the others. I am told that the existing model can almost certainly be improved upon in several respects, and that we could get a model manufactured in this country which would be more accurate than existing machines, and might also be substantially cheaper, because at the moment they all have to be imported from the United States. I think it is most desirable that the machinery should be standardised.
The second part of the Amendment deals with the training of the persons using and maintaining the apparatus for the analysis of the breath. These people will be police officers in police stations, and it is essential that they should be taught how to use the machine. It is not very difficult to do. One could learn it perfectly well on a week-end course, given just ordinary mechanical competence, which most young men possess nowadays. However, it is essential that it should be properly learned. The machine must be maintained and serviced properly, and in particular the specimens of (I think it is), potassium dichromate have to be changed at regular intervals and checked to make sure that they are still capable of absorbing alcohol. I hope very much that the Government will accept the principle of this Amendment, even if my words are not exactly the way in which to achieve the objective I have in mind. I beg to move.
Amendment moved—
Page 2, line 16, at end insert the said subsection.—(Lord Taylor.)
THE EARL OF NORTHESK: Might I ask the noble Lord if the proposed tests are equally efficient in the case of drugs as in the case of alcohol, because Clause 2 speaks of ability to drive being impaired through the use of alcohol or drugs. Are these tests equally efficacious in the case of drugs?
LORD TAYLOR: The answer is that these particular tests would not detect drugs at all. Special tests have to be used, one for each particular kind of drug. The common one would be a barbiturate, which would require elaborate testing, and would not arise in the sort of test performed at the police station by the breathalyser. It would be quite useless for that purpose.
EARL HOWE: May I ask a question about the breathalyser? It was at one time used in Sweden, and I understand that it has now been given up. Can the noble Lord say whether that is so; and, if it is, can he say why?
LORD TAYLOR: I understand that this is not so. The situation is that a very simple modification of the breathalyser is used in Sweden. It is not the true breathalyser at all. It is a very simple machine which shows merely whether or not the body contains any substantial amount of alcohol. It does not do more than that. It does not give an accurate reading. If the subject is plus or positive for alcohol, then I believe he is given the option of having a blood test or a suspension of licence for a fortnight or a month. Needless to say, most of them opt for the suspension of licence for the short period; because if the blood test shows a high level of blood alcohol the person is liable to go to prison. I think that is the answer, but I am not absolutely certain about that.
LORD STRATHEDEN AND CAMPBELL: I should have thought there was a good deal of substance in this Amendment. The idea of these tests is causing a certain amount of alarm, and anything which would make it absolutely clear that the tests are conducted in complete fairness and by really qualified people would not only set the public mind at rest but also be of great effect in preventing any talk of the police doing something which was not quite proper. I would support this Amendment.
LORD MERRIVALE: I should like to support the principle underlying this Amendment, and I would take this opportunity to ask the noble Lord, Lord Taylor, one question with regard to paragraph (b) in his Amendment. He

1031
said that the training necessary for persons using and maintaining the apparatus used for the analysis of breath would be given Ito police officers. But would that in fact be true? If I understood my noble Leader earlier on, he said the Government agreed that there should be in all cases a medical practitioner present; and that if he was present he would then carry out the test. If he carries out the test he would, I presume, have had adequate training for carrying out the test.
LORD TAYLOR: I do not know if I can speak for the Government here, but I think the noble and learned Viscount said that it is only with regard to the taking of blood that the medical practitioner should be present; in fact, I am pretty sure that was so. The breathalyser can be operated by anyone. It is a very simple mechanical device. One simply has to blow into it, turn a couple of knobs intelligently and take a reading intelligently. This sort of task is performed by hundreds of thousands of Servicemen, and millions of people in industry, every day. It really is a very easy machine to operate; it is already operated in Scotland by police officers, and will, I am sure, be operated by police officers in this country.
LORD HAWKE: None of us has seen this mysterious apparatus. Is it a thing like a chemical apparatus, or is it like a set of bagpipes? Is there any method by which the mouthpiece can be cleaned? Could a caste Hindu submit himself properly to this test or not?
LORD TAYLOR: It is a square box about half the size of the box here, and it has two dials on it, two holes into which liquids are inserted and a mouthpiece, with a tube to which is attached a fresh mouthpiece for every subject. The machines are properly washed and sterilised, and they contain a little track to make sure that no fluid from the mouth gets into the machine. It is a much more pleasant but far less portable machine than I had expected. It is something which could be used only in a police station, with a reasonable degree of quiet and order, if it is to be worked properly.
LORD HAWKE: How does one ensure that the last lot of alcohol vapour has
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been properly expelled before the next victim is tested?
LORD TAYLOR: The apparatus has to be re-set to zero every time.
THE EARL OF GOSFORD: May I clarify my mind on a rather more serious vein? Is this meant to be entirely for Scotland only, and not applicable to England?
LORD TAYLOR: The term, "The Secretary of State", is used in this Bill a little earlier on, in connection, I think, with the public analysts. I imagine it would be the Home Secretary who would be doing this, because these regulations would be referring to police officers. That was why we used the term "Secretary of State".
THE EARL OF GOSFORD: The reason for my doubt was the juxtaposition to the previous subsection (3) which starts off "In any such proceedings in Scotland …"
6.25 p.m.
THE EARL OF DUNDEE: We are always grateful for any advice on these matters which is put before us by the noble Lord, Lord Taylor, and we are certainly anxious to consider any of his suggestions sympathetically. On the other hand, there is one general point that I should like to make about the effect of having too many regulations prescribed by the Home Secretary. We must remember that the conditions under which the law is carried out—the physical conditions in regard to police stations and so on—vary locally a great deal. I am not sure that it is a good principle to interfere too much with the ordinary common-sense processes of the law. At the present time, the prosecution are lawfully at liberty, without any express statutory provision, to use tests; and to attempt to prescribe by regulation the exact form of the tests would place restrictions on existing powers and would be, to that extent, inconsistent with the general purpose of the Bill, which is to make it easier, and not more difficult, to get the facts and to establish the truth so that the court may arrive at a just decision.
I do not think there is any reason why this particular kind of evidence should be singled out for such special treatment. The safeguard against unfair

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evidence lies in the ordinary process of criminal procedure, and under the Bill as it stands it is always perfectly open to a defendant to argue that any particular test is unfair and to produce expert evidence to support this argument. I am not sure that is not a better safeguard than some general regulation which might not exactly fit all the circumstances of every case.
As for paragraph (b) of the noble Lord's Amendment, dealing with the training necessary for persons who use these tests, of course we agree they must be properly trained. But since it is not our intention at present to prescribe the apparatus to be used it is obviously inappropriate to take power to prescribe the form of training to be provided in the use and maintenance of such apparatus. If breath tests, for example, should be introduced at some future time, adequate training would certainly be necessary, and would be provided. We will consider further what the noble Lord has said, but I do not feel that it would be right at this stage to make it obligatory on the Secretary of State to formulate regulations of the kind which are contemplated in the Amendment.
VISCOUNT BRENTFORD: Before the noble Lord, Lord Taylor, replies, may I seek to encourage him by saying that I think that is quite the most unsatisfactory reply we have had from the Government yet. I do not want to take up your Lordships' time, but it seems to me that this is a vital matter. There are a wide variety of even breathalysers which are available, and we are aware that there is only one breathalyser which claims to be reasonably satisfactory at the present time. Unless there is a prescription as to the type of breathalyser (to use only one instance by way of illustration), we might have police forces in different parts of the country using a variety of different instruments with different degrees of accuracy, and therefore with different degrees of weight to be attached to the evidence which they produce before different courts. The whole thing will end in a state of complete confusion. The unfortunate motorist may be tested in one police station by one method, and may be allowed to continue on his journey. Then he may be tested ten miles further on by another police officer, in another police station, by another
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method, and subject to different qualifications, different systems, different degrees of accuracy and all sorts of things. If the Government decide that they will impose this particular form of collecting evidence against the individual, they must prescribe accurately, and in detail, the way in which it is to be done and the method by which it is to be done.
LORD TAYLOR: Before the noble Viscount, Lord Brentwood, had spoken I, too, had reached the conclusion that this was a thoroughly unsatisfactory reply. I am a strong supporter of having these tests in the interests of road safety, but only if the tests are properly done. Here we are, faced with police officers being required to make chemical tests. It is a very different matter if chemical tests are performed by public analysts recognised under the Food and Drugs Act. There there is a safeguard; but here we are asking for an elementary safeguard. I must say that I am not prepared to withdraw my Amendment. If necessary, I must press it to a Division, not because I think the phraseology is necessarily perfect, but because here, I think, is a principle which we should maintain. If we are going to use science in the service of the law, then the science must be as good as we can make it. Therefore I hope that your Lordships will support me, even if I have not a great galaxy of supporters behind me when I challenge the Government.
THE EARL OF DUNDEE: I have offered to consider what the noble Lord has said, but if he prefers to have a Division now we must, of course, go to one and see what your Lordships think about the matter. I do not entirely agree with the noble Viscount, Lord Brentford, about the confusion which is likely to arise without specific regulations of this kind. It would seem to me that in the example which he gave, in order to encounter these successive misfortunes the driver must be behaving in a most suspicious manner. But I will consider what the noble Viscount has said. I think this is a pretty wide subject, but I am perfectly willing to undertake to look into the point again.
LORD TAYLOR: When the noble Earl spoke before I thought he was going to look into it without any hope of my being successful. I should like

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to feel certain that the Government were seriously perturbed about this matter. I am entirely in the hands of your Lordships in this matter. I want to make quite certain that regulations are prescribed, and I feel that probably most
Resolved in the affirmative, and Amendment agreed to accordingly.
6.40 p.m.
LORD TAYLOR: This Amendment is really consequential on the last Amendment which your Lordships have just passed, and I hope you will accept it in the same happy spirit. In fact, it does a little more than that; it makes sure that accused persons are offered specimens of blood and urine in containers which are suitable for their preservation, and therefore safeguards the position of defendants in a way which, I believe, is common practice at the present time. This provision would make it absolutely clear that they are to be offered these specimens in such a way that they shall not deteriorate and can be satisfactorily analysed. I beg to move.
Amendment moved—
"() Specimens of blood and urine in prescribed containers shall be offered to the accused person."—(Lord Taylor.)
THE EARL OF DUNDEE: I cannot agree that this Amendment is consequential on the last one, because I had intended to accept this one in principle. I believe it is the invariable practice of the police to offer an accused person a sample of urine—which is almost the only test which is taken now—so that he may have his own analysis made if
1036
of your Lordships feel as I do, and that we should insist upon this matter.
On Question, Whether the said Amendment shall be agreed to?
Their Lordships divided: Contents, 28; Not-Contents, 13.

CONTENTS

Airedale, L.

Goschen, V.

Peddie, L.

Allerton, L.

Gosford, E.

Strathcarron, L.

Ampthill, L.

Hampton, L.

Stratheden and Campbell, L.

Amulree, L.

Howe, E.

Swaythling, L.

Amwell, L.

Lucan, E.

Taylor, L. [Teller.]

Auckland, L.

Massereene and Ferrard, V.

Teynham, L.

Brentford, V. [Teller.]

Merrivale, L.

Torrington, V.

Colville of Culross, V.

Montagu of Beaulieu, L.

Waleran, L.

Croft, L.

Northesk, E.

Williams, L.

Foley, L.

NOT-CONTENTS

Amory, V.

Hawke, L.

St. Oswald, L.

Chesham, L.

Jellicoe, E.

Soulbury, V.

Devonshire, D.

Newton, L. [Teller.]

Teviot, L.

Dundee, E.

St. Aldwyn, E. [Teller.]

Winterton, E.

Hailsham, V. (L. President.)

he so wishes. Blood samples are very rarely taken at present, but here again, I understand, if one was taken the accused would be offered a portion of the sample. If the procedure of offering a sample should be omitted in any particular case, it would be open to the accused to bring the fact to the attention of the court, and this might cause the prosecution to fail if the accused person might have been prejudiced by the omission to offer him a sample.
In practice, therefore, the accused is safeguarded, and the only objection to accepting the noble Lord's Amendment is that it is probably not necessary and might conceivably be misleading to the accused. He might think, when he got the sample which he was offered, that it was all right for him to keep it for three or four days and have it tested at his leisure, when in fact I believe it has to be tested within not more than two days. If the accused person failed to have a sample tested within that time, then the prosecution could disregard his case by pointing out that the test was valueless. The accused person might not have realised that.
I am willing to accept this Amendment in principle, however, I should like to look at it again. I am not sure that it would be necessarily a good thing to have a prescribed type of container, as types of containers change very

1037
quickly. A new type of container might be a great improvement on an older type, and it is always a little difficult to make legislation keep up with these changing practices. Therefore I am not sure that it would be a good thing to define the type of container too strictly. But I am willing to accept the Amendment in principle and to introduce a similar one on Report stage.
LORD TAYLOR: I thank the noble Earl for his kindness to this Amendment. It is, of course, the prescribed part of the container which follows so closely on the last Amendment, because I had in mind that regulations should be laid down about these containers, having regard to the poor keeping qualities of the blood and the urine in these circumstances. That was what I was worried about, and I think it is a reasonable concern. I am grateful to the noble Earl for undertaking to accept this Amendment—or is it to accept it in principle?
THE EARL OF DUNDEE: In principle.
LORD TAYLOR: With that assurance, I beg leave to withdraw my Amendment.
Amendment, by leave, withdrawn.
LORD TAYLOR LORD TAYLOR moved in subsection (4.), after "Acts" to insert:
"and authorised by the Secretary of State to make analyses for the purposes of this section,"
The noble Lord said: My final Amendment concerns a rather obscure point: the question of whether all public analysts should undertake these tests. As the Bill stands, they would be entitled to do tests, in the belief that a public analyst is a competent and proper person—and, of course, he is. But there is a rather large variety of ways of doing these blood-alcohol estimation tests. I believe there are over 200 different methods of analysing blood for blood-alcohol, and the accuracy of the tests is largely determined by the frequency with which the worker is doing them. The more often a man does these tests, the better he does them; and if a public analyst is called upon to do them only once every six months or so his degree of accuracy will be much less that if he is doing them every day of the week, or even every week.
I am sure, therefore, that in the interests of everybody who is concerned
1038
with accuracy—that is to say, the public, the law and science and the law—as few places as possible should be engaged on doing these tests. The Bill lays down that any public analyst:
"and any other persons authorised by the Secretary of State"
shall be used for these tests. I imagine the second group of places are the forensic science laboratories run by the Home Office, which are very proper places to do them. I think we should have only a selected list of public analysts, among whom this work should be concentrated in order that it may be done well; and I am sure, again, that this is the proper answer if we are to have them done properly. I hope that Her Majesty's Government will accept the principle of this Amendment, or at least will look at it seriously. I realise that my drafting is not very happy, but it was the only way I could achieve my result in a fairly simple form. I beg to move.
Amendment moved—
Page 2, line 22, after "Acts", insert the said words.—(Lord Taylor.)
THE EARL OF DUNDEE: So far as the prosecution is concerned, I should like to assure the noble Lord, Lord Taylor, that it is not contemplated that evidence by certificate will be given by persons other than members of the Home Office forensic science laboratories—that is the intention of the Home Office—or in Scotland by the Glasgow city analyst. My objection to the noble Lord's Amendment is from the point of view of the defence, because it seems to limit the freedom and possibly the facility of an accused person to choose his own analyst. As it stands, the clause would permit evidence by certificate to be given on behalf of the defence; and the Amendment would limit the extent to which a defendant might select a qualified analyst of his own choice.
I think it is true that not all public analysts may be sufficiently familiar with the special techniques, or perhaps equipped with the apparatus required, to carry out analysis of urine or blood. But, on the other hand, a person who did not happen to have a certificate from the Home Secretary might be able to carry it out perfectly well, and it might be convenient to the accused person to have it done by him. If, on the other hand,

1039
he chose someone who did not know how to carry it out and would carry it out badly, that could easily be shown by the prosecution. I understand that it is not very difficult to show that a test has not been carried out in a manner which ought to be accepted as legal proof. Therefore, in order not to restrict unduly the facilities of an accused person, I hope that the noble Lord will not press the Amendment, although I quite see the reasons behind it.
LORD TAYLOR: That is a very satisfactory assurance. Indeed, I had based my Amendment on a misunderstanding. I imagined that our police forces were going to behave as the Glasgow City Police have behaved in the past, each using their own public analyst. If they all use the Forensic Science Laboratory I think there will be no trouble, and that is a highly satisfactory solution. With those assurances I certainly withdraw my Amendment.
Amendment, by leave, withdrawn.
6.53 p.m.
THE EARL OF ARRAN THE EARL OF ARRAN moved to leave out Clause 2. The noble Earl said: I have put down this Amendment for two reasons: first and foremost, because I have cause to believe that the tests referred to in the clause could be dangerously misleading; and, second, because, as the Drew Report itself says:
"There are known wide differences in response to alcohol and therefore"—
and this is my view—
"a universal standard of drunkenness must manifestly be unfair to the individual."
I do not believe in automatically accepting the findings of others. Where possible, I think that one should submit oneself to them. Accordingly, I have been having, tests for alcohol content in the blood and urine under the control of my medical practitioner, a biochemist and a Bachelor of Science, attached to the pathological laboratory of my local hospital. The results have been startling and such as to east grave doubts on the validity of these tests. Let me tell your Lordships what I did.
On two different, but not consecutive, mornings I drank, on a completely empty stomach, two different quantities of whisky: on the first morning two doubles; on the second a quarter of a
1040
bottle, the equivalent of four doubles. These were the results. On the first morning, with no alcohol consumed for ten hours, at 8.30 a.m., my blood was shown to contain 55 milligrams per 100 millilitres; at 9.50 a.m., with two doubles consumed between 9 and 9.15 a.m., the figure was 81 milligrams; at 11.15 a.m., 36 milligrams. That was the first day. On the second day, at 8.30 a.m., with no alcohol consumed for twelve hours, the figure was 49 milligrams; at 10.15 a.m., after the consumption of a quarter of a bottle of whisky, 122 milligrams. In other words, I started both tests with about 50 milligrams of alcohol (or a volatile substance indistinguishable from alcohol) in my blood. The Committee are taking this lightheartedly, but this was a serious test. On this showing, some people would maintain that I was not fit to drive, even after a good night's rest and having consumed no alcohol for a considerable period of time. Apparently I started the day quite drunk. You might think that this is because I am permanently in a slightly "pickled" condition; but this is not the case, I am glad to say. The biochemist who did the analysis had, unknown to me, previously done tests upon himself; and these showed that, although he had not had a drink for three or four days, he started off with a "load" of 25 milligrams.
What this seems to mean is that some people start with a handicap—a handicap which varies from person to person, and from day to day, and of which no account is taken in assessing whether or not a man should be charged. The Scotland Yard laboratory experts maintain, with great vehemence and obvious sincerity, that there can be no alcohol in the blood unless it is put there. But, to my mind, the weakness of this argument is that, so far as I know, the police never take tests of persons when they are sober. Thus, they can have no idea whether the blood or urine of the accused normally contains alcohol, or a substance indistinguishable from alcohol, and they make no allowances for this in assessing the degree of drunkenness, if any.
I should add, lest it be suggested that the findings of the biochemist are inaccurately arrived at, that he uses an almost identical method of testing to that

1041
used by the police. Further, I should also add that on the occasions when he has analysed specimens which have also been analysed by the police simultaneously, his findings and theirs have been very close together. These are serious matters. We -seem in danger of making a law on the basis of possible inaccuracies and thus of injustice. I would earnestly ask the Government to look at this matter of tests far more closely before forcing through legislation. I do not know who is right or who is wrong, but there seems some reasonable doubt.
Next, I come to the question of fitness or unfitness to drive. It is an accepted fact, I think, that people differ very much in their reactions to alcohol. With some, one glass of whisky is enough to set them reeling; with others more is required. I thought the Committee might like to know my own doctor's report on the tests which I underwent. This is it:
"8.30 a.m., his usual self. 9.50 a.m., cheerful, slightly euphoric; no objective evidence of intoxication. 11.15 a.m., feels less tiddly'."
For the second day:
"8.30 a.m., normal. 10.15 a.m."—
with 122 milligrams inside me—
"says he feels slightly drunk. On examination, slight suffusion of conjunctivae"—
which I think relates to the eyes—
"no nystagmus"—
flickering of the eyes—
"Speech normal and rational, but talkative. Able to walk on a straight line, Serial sevens completed correctly."
In this test I was given a number and had to subtract seven, right down to nought.
"Spelling good. Rode my son's tricycle, 11.15 a.m., feels normal."
The doctor added—and this is perhaps interesting—that on none of the occasions on which he saw me would he, if called in, have given it as his view that I was unfit to drive a motor vehicle. This view was taken by a civil servant who called that morning to collect my Census form and with whom I had a long talk. But, in fairness, I must record that an ex-policeman, who works for us, said that if I had been involved in an accident he would have taken me to the station because he did not like the look of my eyes.
Here is the evidence. To say the least, I find it confusing. And because, on the
1042
one hand, there is a dispute among the experts about the fairness and reliability of these tests, and because, on the other, any attempt to lay down standards of drunkenness for everyone will inevitably lead to injustice to individuals, I should like to move that this clause be entirely deleted from the Bill. We must be ready to pay a high price for greater road safety, but I think this price is too high.
Amendment moved—
Leave out Clause 2.—(The Earl of Arran.)
LORD AMWELL: In the last Division I voted for the Amendment upon the principle of, "If this, then that". Now that the whole question of Clause 2 is raised by the noble Earl's Amendment, I feel very much inclined to support him for reasons that I have already indicated. I do not believe in the kind of legislation that justifies the term that the noble Earl used—"automatic". I do not think we can deal with these questions of human conditions and human tolerances by automatic machines, or upon the principle of the robot. As I was saying to a colleague only a little while ago, the New York Correspondent of the Daily Mail sends information about American robots that not only can think but can also breathe and sweat. I suppose that, before long, they will be performing other kinds of natural functions; I do not know. But I wonder why they should be thinking about sending men into space when robots can do it so much more accurately without any of the risks entailed.
Modern science seems to be denigrating humanity. It seems to be running after the materialistic idea that we are nothing more than levers and cogs and wheels. Now we do not want—and it seems to me that we should not want—legislation that is based upon anything of that kind. I should much prefer to leave it to the magistrate, or the jury, in cases of this kind, who will know the considerations involved and who will learn at first-hand all the details that are necessary to be known to form a judgment upon the matter. We should not talk about a machine determining what shall be done, even if it should come to a question of imprisonment, or anything else.
The machine, after all, is admittedly unreliable, because people differ in their toleration of alcohol, and all the rest

1043
of it; and we cannot get out of that machine what it is implied we can. I think I should support the Amendment of the noble Earl because surely we want to get a little bit of sanity in our conception of what the State should do with regard to the actions of private individuals. I do not mean that I tolerate drunkenness upon the roads—there are many things upon the roads that I do not tolerate; but I think we should deal with the question. Since the question, it seems to me, is purely one of the human factors concerned, we should not deal with it automatictlly, to use the expression of the noble Earl.
VISCOUNT BRENTFORD: If I may intervene to support this Amendment, I do so simply because, unfortunately for me, though perhaps fortunately for your Lordships, circumstances precluded my attending this debate from the outset, and I should not like it to be thought, because I had refrained from supporting some of the critical Amendments to this clause, that I was in any way in favour of the clause. I think that the clause is a bad one, for the reasons, among others, which I have already put before your Lordships, during the course of the Amendments to which I have spoken, and which I will not therefore repeat. But I am quite convinced that this is not the right method by which to try to bring to an end drunkenness upon our roads.
LORD MONTAGU OF BEAULIEU: There is one aspect of this clause which worries me very much: that if it should come into law it will act very unfairly against one type of road-user—the motorist. I refer now to the question of pedestrians and cyclists, or, to be more explicit, to drunken pedestrians and drunken cyclists. The sad fact is that they do cause, and are involved in, a great many accidents on our roads to-day. In fact, many of the Christmas casualties are caused just as much by people coming out of pubs on foot as by anything else. Whereas in general I support this clause, and should certainly not vote against it, I feel that, before it comes into law, serious consideration should be given to the fact that, if a pedestrian or a cyclist is involved in an accident with a motorist, he should be as liable to these tests for drink as anybody else.
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Let us consider for one moment the example of a perfectly sober motorist who may be driving along a road and become involved in an accident with a pedestrian or a cyclist. He would be hauled into the police station and would, possibly quite willingly, take a test; but the drunken pedestrian or the drunken cyclist—and, after all, they also are road-users—would be sitting back (we hope still alive) and would not be liable. When the case came to court, justice might not be done because of the fact that these tests had not been carried out and, therefore, had not produced the evidence which might cause the motorist to be acquitted. I think it is important that the good will of motorists should be gained for these tests. What is important is that all these people—pedestrians, cyclists and motorists—are all road-users. They all have to show responsibility and they all have to show care to each other on the roads; and if only one type of road-user is obliged to take these tests, that does not seem to be fair; and it will not, I feel, do this whole Act any good.
LORD FOLEY: I completely agree with the noble Lord who has just spoken. It seems to me incredible that motorists should have to pass a test while cyclists and pedestrians do not. A pedestrian who is drunk can cause just as much damage as a drunken motorist. He can cause a motorist to swerve and a number of motor cars to be involved in an accident; or a motor car may mount a pavement because of a drunken pedestrian. I think that the whole aspect of pedestrians and their behaviour needs to be gone into very thoroughly, and I am very sorry that this Bill does not legislate for them.
LORD TAYLOR: I want to say merely that I think the House owes a debt to the noble Earl, Lord Arran, because, despite having not a very satisfactory or very experienced analyst, he has shown the value of the tests. His analyst could not get a good zero reading, which shows how important it is to have experienced people doing this work. I suspect that an ordinary hospital biochemist seldom analyses for blood alcohol, and I imagine that he failed to get his apparatus adjusted at the start as he should have done. Nevertheless, the noble Earl's blood alcohol rose precisely as might be expected. After two doubles, he reached 81

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milligrams per 100 millitres, and he was described as "slightly euphoric". A little later he described himself as "feeling less tiddly".
THE EARL OF ARRAN: It was the doctor who said that.
LORD TAYLOR: Was the doctor feeling "loss tiddly "? The point is that after two doubles on an empty stomach the noble Earl's capacity to drive safely would, in my opinion, be very slightly impaired. He would be just in a condition not to drive a car. I think he would be wise not to drive a car after having had two doubles on an empty stomach, and his condition on having had two doubles would have been correctly revealed by these tests. It was exactly the same when he had four doubles on an empty stomach. He himself said that he then felt "slightly drunk", so he certainly should not have been driving a car. He then reached 122 milligrams per 100 millilitres. So, despite the deficiences of his analyst, the tests nevertheless worked extremely well, and I think his experience shows the validity and value of this clause.
7.10 p.m.
VISCOUNT HAILSHAM: I am afraid this debate is getting a little euphoric but I should like to restore it, if I may, to some degree of clarity. I must say that I utterly fail to understand my noble friends Lord Montagu of Beaulieu and Lord Foley. We are not discussing whether motorists have to undergo tests as against pedestrians or as against cyclists. Everyone knows that drunken pedestrians can both cause accidents and become involved in accidents, and so can drunken cyclists. What we are discussing arises only in relation to Clause 1 of the Bill. It is an offence under the principal Act, which is the 1960 Act, and has been an offence since 1930, to drive a car when you have had too much to drink. That is what this clause is about.
Clause 2 simply deals with the question of how you find out that a driver of a car has had too much to drink. In the interests of pure science, if you find a man drunk on the street he may be committing other offences in connection with drunkenness; but it is usually not thought a sufficiently grave offence (although admittedly, in certain circumstances, it can cause an accident) to go
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through the rigmarole of a test, if he is merely going to be brought up before the police court and fined 5s. Of course, that may be unfair to the motorist or it may not, but I hardly think that this House would be assisting the process of legislation if it provided that every drunken pedestrian—and there are great numbers at Marlborough Street every morning—should have to go through this elaborate test.
LORD FOLEY: May I interrupt the noble Viscount? That may well apply to drunken pedestrians, but, surely not to drunken cyclists.
LORD MONTAGU OF BEAULIEU: Since I raised this point, may I say that I specified that it would happen only when they were involved in an accident with a motorist. I made that point very clear.
VISCOUNT HAILSHAM: This is where neither of my noble friends has applied his mind to the problem. There is no such offence known to the law, nor has either of my noble friends suggested such an offence known to the law, as that of being involved with a motorist when you are drunk on a cycle. It may be desirable that there should be, but you will not achieve that by doing anything to Clause 2. Clause 2 has nothing to do with a principal offence; it is Clause 1 which deals with the principal offence. It provides (and no one has so far suggested that it should not) that, if a motorist drives when he has had too much to drink, he commits an offence. Clause 2 is concerned only with the factual question how you discover whether or not he has had too much to drink. The offence is not of having had an accident with a cyclist; the offence is not of having had an accident with a pedestrian; the offence is of driving, or attempting to drive, a motor vehicle, which is, after all, a lethal weapon, when you have had too much to drink. All we are discussing is whether we are allowed to find out the truth, or try to find out the truth, by applying the best tests that scientists are able to discover, or whether we are to try to have a shot at it without using such tests of science.
In those circumstances, I must say I utterly fail to understand the purpose of the Amendment of my noble friend the Earl of Arran. He said that a universal test of drunkenness imposes an injustice

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on someone. I think I have seen the diligence of his attendance throughout all this afternoon, but unless I am mistaken this idea of a universal test is the very matter I have twice or three times refused the invitations of the enthusiasts to consider.
THE EARL OF ARRAN: I agree that that is not positively and actually laid down, but one could conceive the courts getting quite empirically the idea that a reading of 120, 130 or 140 means drunkenness, in which case they would be bound to regard anyone with that reading as drunk, and anyone who had a reading of 30 or 40 as sober.
VISCOUNT HAILSHAM: I fail to understand what my noble friend is trying to say. The fact of the matter is that throughout this afternoon, rightly or wrongly (some noble Lords thought wrongly), I have refused to admit a universal test of drunkenness. I have rejected the Amendment proposed by the noble Earl on the Front Bench opposite, who proposed to move toward that. I rejected the blandishments of my noble friend Lord Elton; and now the Government is accused of doing exactly what it refused to do.
I do not often make claims in this House to personal knowledge about things, but I must say this. I began at the Bar twice and worked up the hard way. I had to begin again, with an absolutely ruined and destroyed practice, after the war, and so had to go up the line of the legal profession twice in my life, and it was harder the second time than the first, I suppose I have prosecuted or defended more people for this offence than any Member of either House of Parliament. I have a certain faith in juries and in justices. Personally, for this offence, I have a good deal more faith in justices than in juries, because juries acquit nearly half the people who plead not guilty. If my noble friend says that, because we try to find out, in a scientific way, what the truth of the matter is, juries are going to be less able to divine the truth than if we approach it in a non-scientific way, all I can say is that we might as well shut up our criminal courts and stop trying to do justice between man and man. That is to prefer obscurantism to science.
THE EARL OF ARRAN: But what if these facts are misleading, and if they vary from person to person?
VISCOUNT HAILSHAM: Juries well know that one man can take drink more than another, and so do justices. Juries are just as well able to judge facts as any of the rest of us. That is why, after all, they are able to judge whether people have committed murders or not, which decision may very well depend upon scientific evidence of this kind. That is why this country has always insisted on keeping jury trials, and that is why it has often preferred lay magistrates. To suggest that they really cannot understand that some people can take more drink than others seems to me to suggest a degree of incompetence, from which the only inference to draw is that they should not be allowed to try cases at all, still less capital cases or cases involving long periods of imprisonment if a conviction is obtained.
The fact of the matter is that these tests are pretty reliable. I will not weary the House again, because the noble Lord, Lord Taylor, on an earlier Amendment, gave fairly accurate—I think entirely accurate—limits to the accuracy of these different tests. They are fairly accurate, and on the "fail safe" method—that is to say, allowing a margin of error in favour of an accused—you can make them very reliable indeed; and that is the way in which they should be employed. Everybody knows that they do not tell you for certainty whether or not a man is drunk. I have resisted any temptation to use them for that purpose. But at the risk of being tedious, I assert that they tell you that a certain level of alcohol means that a minimum quantity has been taken, and therefore enable you to check on the eccentricities of behaviour and clinical symptoms to discover whether they are likely to be due to alcohol or to some idiosyncrasy or pathological condition of the body—to check on the truth of the story (often given by suspects of this offence) that they have had only one small sherry, and that some hours ago in the course of an elaborate meal; a story often told, and sometimes successfully. When you find, for instance, that there are 122 milligrams per 100 millilitres in the blood of the accused, as happened to my noble

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friend after he had drunk a quarter of a bottle of whisky, a jury may be entitled to treat such art account by an accused with a considerable degree of scepticism.
The fact is that these tests are a valuable aid. Clause 2 is really the most cautious clause we could think out. It refuses to treat these tests as conclusive. It refuses to impose arbitrary limits upon the amount of alcohol which may be present in the blood. Because the evidence from these tests sheds a good deal of light on the facts of cases, and because that light will often operate as much in favour of the defendant as against him, if the truth be known, we think the jury should have it before them. If you once get it into your mind that you cannot trust judges to find out the truth, and that you cannot trust juries to find out the truth when they are given all the relevant evidence, then you had better shut up 'the courts of justice rather than try to invent a series of artificial rules to give the result you want to bring about.
THE EARL OF ARRAN: I am afraid that I am not very satisfied with the last two answers. First of all, the noble Lord, Lord Taylor, seemed to cast contempt upon the evidence of an expert who is, I think, an accredited member of his profession. I am sorry that the noble Lord assumed that his figures are wrong. Personally I have no way of judging. But it strikes me as being serious.
LORD TAYLOR: I did not; I said that, in spite of not having the zero level right, he made quite a good series of estimations.
THE EARL OF ARRAN: The zero level is very important, and we may have difficulty in finding competent persons. With regard to what the noble Viscount, Lord Hailsham, said, I would still ask him this question. If he is a member of a jury and sees before him two men, each of whom has taken an equivalent amount of alcohol, is he able to say, by looking at; them, which can hold his liquor better than the other? If he is, then I think that he is a genius.
VISCOUNT HAILSHAM: If I were on a jury—fortunately, I am debarred by my profession from serving—I should
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want to know a little about how each behaved when driving a car and when brought to the police station. This would give me a very good indication of which one was innocent and of which one was guilty, or if both were guilty.
I took the trouble of reading my noble friend's article in the Evening News, in which he describes his experiences after having taken a quarter of a bottle of whisky, in the interests of science. I submitted certain questions to the Medical Research Council. They share the fears of the noble Lord, Lord Taylor, about my noble friend's method of taking the test and gave a number of reasons for questioning it. The Council said that:
"one would expect a very high degree of accuracy in a forensic laboratory accustomed to carrying out many estimations daily. One would not expect the ordinary hospital biochemical laboratory to have more than a passing acquaintance with such tests."
It is only fair to add that the letter continued:
"Even so, a zero error of 50 milligrams is thought to be very high."
The standard methods of estimating blood alcohol in this country is the Widmark method, based on chromic oxidation. This technique is not completely specific for alcohol and may give a false positive result when substances such as acetone or aceto-acetic acid are present in the sample being analysed. These substances may accumulate in the blood of patients suffering from diabetes mellitus, and it is standard forensic practice to exclude the presence of this disease. It is also possible that other conditions, such as severe liver disease, may be associated with increased amounts of acetone and aceto-acetic acid in the bloodstream. Other well known sources of error in the estimation of blood alcohol are cleansing of the skin with alcohol prior to venepuncture, cleansing of glassware used in the analysis by means of alcohol or acetone, and an unsatisfactory technique in carrying out the analysis. But I am willing to arrange, if my noble friend is willing once more to make a martyr of himself and submit himself to a series of painful tests, that the results shall be published in some reputable journal.
THE EARL OF ARRAN: I will accept the noble Viscount's challenge, if, in addition, the cost of the alcohol is

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refunded to me. I found it a very expensive week. This has been a most interesting discussion, but I should nevertheless like to press my Amendment.
On Question, Amendment negatived.
House resumed.

LONDON COUNTY COUNCIL BILL [H.L.]
Reported, with Amendments.
House adjourned at twenty-five minutes past seven o'clock.