How will Brexit affect drug and alcohol testing throughout the UK?

While Brexit negotiations continue to drag along, one thing is clear: the UK’s exit from the EU will leave almost no part of British society unaffected.

This is especially true of the legal system. The UK now must untangle itself from five decades of EU directives, regulations and treaty provisions, creating a new paradigm for lawyers in this country.

For family lawyers, in particular, the inter-relationship between EU and domestic family law is likely to be altered by Brexit. What that means in practice is open to speculation.

But Brexit’s effects will extend beyond the letter of the laws and regulations. Over the last decade, drug and alcohol testing has become a central component of family law proceedings in the UK - and testing, like so many other parts of the legal system, will also be affected.

But how? While we can’t predict precisely the finer details brought about by Brexit, there are some questions about testing that we can answer now. Here are some key things for lawyers to know about testing after the UK leaves the EU.

How will Brexit affect the testing services family lawyers depend on?

The UK testing industry will certainly become more complicated. Modern testing - much like modern science - often requires cooperation that stretches over national boundaries.

Many UK testing laboratories frequently send samples to be tested in French and German labs, and vice versa. This is easily done at the moment because of cooperative frameworks like the EU Research Area (ERA): the research and innovation equivalent of the European Common Market for goods and services.

If these relationships with continental testing partners are affected, we can expect prices to rise. Maintaining the ERA is a priority for both sides, but like anything Brexit-related, what’s intended and what occurs could be very different.

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If negotiations fall apart, resolving this issue will rely on developing bilateral agreements with Europe. This will be crucially important. As King's College London’s Policy Institute notes, “Science policy does not exist in isolation and the research community’s ability, capacity and desire to work internationally may also be affected by policy decisions around immigration, industrial policy, education, trade and other areas.”

Data-sharing, in particular, is a concern. Sharing information is integral to innovation within the testing industry. Fortunately, the Government has made data sharing with Europe a priority in its negotiations. As early as last summer, UK negotiators outlined their intention to strike a deal on regulations around data.

Will testing standards fall or rise due to Brexit?

The answer to this question relies heavily on the Government’s economic policy post-Brexit.

Here and now, austerity policies have squeezed the forensic science and testing sector for quite some time. The closure of the Forensic Science Service in 2012 has made life difficult for the court system and the police, who have often had to rely on untested, lightly regulated suppliers.

Last year, the UK’s forensic science regulator Dr Gillian Tully lamented the slipping standards of testing in the UK. Dr. Tully told the Guardian she wanted the power to ban substandard providers, which the regulator currently lacks.

As Dr. Tully has made clear, further cuts without increased regulation would worsen the problem. Testing in the UK needs tighter regulation: getting it will be a matter of the Government prioritising its support of the regulator. If this happens, the quality of testing could well improve after Brexit.

This said, Brexit is likely to limit the opportunities for European scientists to live and work in the UK – in turn, cutting the ability of the scientific sector to share ideas, samples and systems across borders. The pace of innovation within UK laboratories may suffer as a result.

Will the cost of testing be affected by Brexit?

Laboratories are subject to increases in the cost of living and business like any other entity, so the likelihood is that test prices will rise. British laboratories may also have to pay more for laboratory materials from EU countries, such as the standards used in analysis.

Brexit has already induced a devaluation of sterling of around 14% since June 2016, which has started to work through to consumer prices. Between June 2016 and July 2017 consumer prices increased by around 2.5%. The devaluation of the sterling will counteract the removal of EU tariffs on imports.

As the prices of goods increase, laboratories’ own costs will rise. Naturally, this will be reflected in their pricing - but that’s not necessarily bad news. While laboratories like Cansford have always focused on quality, rather than cost, some UK test laboratories already operate on an Amazon-esque high volume, low-margin model.

Increases in operating costs make this model unsustainable. Productivity and quality will be at the forefront, creating more value for money. For lawyers, that could actually lead to better testing at lower prices. 

Will Brexit affect the legislation that controls testing in the UK?

Brexit supporters have always maintained that exiting the EU will allow the UK to forge its own destiny. As the slogan said, we were going to “take back control”, and as former Minister of Courts and Justice Dominic Raab said late last year, Brexit is “a once in a generation opportunity to make material improvements” to laws and regulation.

The Forensic Science Regulator has long pushed for greater regulation of testing laboratories. This would be a positive change for the sector, but it remains to be seen whether the political appetite for legal changes exists. After all, government departments are overloaded with the mammoth task of rewriting EU laws elsewhere.

Moreover, it remains to be seen whether UK test results will be accepted in European courts, after Brexit is implemented – an obvious area of concern for the legal sector.

Conclusion

Both sides of the referendum vote offered black-and-white narratives. The reality, as always, is more nuanced than that. For UK testing laboratories, and the family lawyers that depend on them, Brexit poses a challenge - but it’s also an opportunity.

With the requirement to write new ‘British’ laws, the UK laboratory sector could implement the regulation that many have sought over the past half-decade, boosting test quality for family law courts, heralding a new era of safe, quality testing.

Equally, a civil service and court overstretched by the complexities of rewriting legislation may not find time to make these positive changes – and as a result, the UK laboratory sector could become less well regulated. The jury is out.

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