This article was published in 2007, in Newsletter 73.
We went round the block again in June, with the Department for Transport announcing a second short consultation on a new revision of The Highway Code‘s rules on cycle facilities and cycle lanes – and square one is starting to look awfully familiar. If it was a computer program, we might call it Square 1.1 beta and hope it didn’t cause too many crashes.
Just to recap, between February and May 2006, the DfT held a public consultation on a draft revision of the Code, in which the old rule 47 on cycle routes became (our emphasis for the new wording):
58. Use cycle routes when practicable and cycle facilities such as advanced stop lines, cycle boxes and toucan crossings where they are provided, as they can make your journeys safer.
The proposed new rule provoked 2612 comments, including those from Cambridge Cycling Campaign and 31 other cycling organisations. Primary concerns were 1) that the weight of published evidence was against the given safety advice, 2) that in the event of an on-road crash resulting in a cyclist seeking damages, reference to the rule could give rise to unjust claims of contributory negligence, and 3) that the rule might be used to justify some motorists’ inconsiderate or belligerent behaviour towards cyclists choosing to use the road.
On 28 March this year, a new draft revised Code was laid before parliament. The DfT had evidently rejected cyclists’ concerns and had rewritten the rule:
61. Use cycle routes and cycle facilities such as advanced stop lines, cycle boxes and toucan crossings whenever possible, as they can make your journey safer.
The complete lack of movement on the issues raised provoked a new storm of protest. Some were also worried that the words ‘whenever possible’ were more restrictive of a cyclists leeway for judgement than the previous ‘when practicable,’ though in similar contexts courts have interpreted ‘practicable’ to mean ‘able to be used or traversed’, so the new wording was arguably a clarification and at least better than ‘where they are provided’.
Meanwhile, Cambridge Cycling Campaign and others were busy fostering contacts with MPs sympathetic on cycling issues. This led to a flurry of parliamentary activity. Menzies Campbell’s Early Day Motion of 9 May, proposing that ‘the alterations in the provisions of The Highway Code … be not made’ enjoyed cross-party support, with 49 signatures. With the help of the Campaign, Cambridge MP David Howarth was able to gather 1190 signatures in just two days, in support of a petition to Parliament urging the DfT to reconsider the proposed revisions to The Highway Code. It is a feature of the Negative Resolution Procedure that Parliament may reject revisions to the Code but cannot impose a particular form of words on the Secretary of State. Support for such motions and petitions does not necessarily mean that the signatories find the current form of words satisfactory.
The House of Lords debated the new rules for cyclists on 17 May. Then a Westminster Hall debate on cycling facilities (23 May) was introduced by Willie Rennie (Dunfermline & Fife West), who got to the nub: ‘I seek the Minister’s assurance that the wording that is eventually adopted will not be based on the assumption that it is normally safer to use cycle facilities, because that assumption is contrary to all the evidence; indeed, the opposite is true in many situations. Not making that assumption will give cyclists the necessary discretion to make reasonable decisions not to use such facilities where appropriate.’ The Minister did not respond directly to this request, but, in answer to a question from Andrew Pelling (Croydon Central), replied that ‘the Department is confident that in the very near future we will arrive at a form of words that is less unacceptable to cycling interests than the current draft. However, we will not move from the principle that the highway code will continue to be advisory to cyclists on this matter.’
On 31 May, ‘following informal discussions with the CTC’, the DfT announced that it saw ‘merit in amending rules 61 and 63, so as to remove any possible doubt about their meaning.’ It announced a short ‘stakeholder’ consultation on a new form of words, while warning that any further delay in issuing the Code would delay ‘the benefits of applying all the improved advice for all road users that it contains.’
The amended rules read:
61. Cycle Facilities. Use cycle routes, advanced stop lines, cycle boxes and toucan crossings unless at the time it is unsafe to do so. Use of these facilities is not compulsory and will depend on your experience and skills, but they can make your journey safer.
63. Cycle Lanes. These are marked by a white line (which may be broken) along the carriageway. When using a cycle lane, keep within the lane when practicable. When leaving a cycle lane check before pulling out that it is safe to do so and signal your intention clearly to other road users. Use of these facilities is not compulsory and will depend on your experience and skills, but they can make your journey safer.
At this point, some campaigners may have reasoned: if this wording is the best we are likely to get, we had better call it a victory. The CTC promptly announced that The Highway Code had been ‘cracked’, saying ‘we had intensive negotiations, but the Department for Transport has listened to CTC.’ Others were less convinced. The wording ‘unless at the time it is unsafe to do so’ is an improvement on ‘when practicable’ or ‘whenever possible,’ creating an exception for facilities which are traversable but unsafe to use at the time. However, in practice, the cyclist needs to weigh the relative risk of road and facility: ‘Is using the facility manifestly unsafe?’ is a different question from ‘Is using the facility probably less safe than using the road?’ The rule still assumes that the facility is the default position for the prudent cyclist.
‘Use of the facilities is not compulsory’ perhaps clarifies the current legal position for any belligerent but Code-reading motorist and is to be welcomed, but this has never been a question of compulsion but of bad advice. To quote the new Code, ‘Although failure to comply with the other rules of the Code will not, in itself, cause a person to be prosecuted, The Highway Code may be used in evidence in any court proceedings under the Traffic Acts to establish liability. This includes rules which use advisory wording.’ As the responsible Minister, Stephen Ladyman, explained in his ‘web chat’ of 6 June, ‘Cycle lanes can make your journey safer but whether you use them is up to you – if you don’t then be aware of the needs of other road users and the extra risks you may be taking.’
The wording ‘and will depend on your experience and skills’ is an assumption, but does not modify the advice. The phrase ‘they can make your journey safer’ is likely to be read as an assertion and, as such, is misleading, according to the weight of evidence. And, just as the consultation was drawing to a close, that weight of evidence was bolstered by a new report out of Copenhagen detailing one of the most comprehensive before-and-after studies of the effects of introducing in-town cycle facilities.
Cambridge Cycling Campaign submitted a formal response to the consultation, welcoming the clarification but repeating its concerns over the basic advice. Others, including the Cycle Campaign Network were refreshingly trenchant in their criticisms. The DfT, however, rejected all such criticisms and suggestions and, having made insubstantial changes, on 15 June it laid before Parliament:
61. Cycle Routes and Other Facilities. Use cycle routes, advanced stop lines, cycle boxes and toucan crossings unless at the time it is unsafe to do so. Use of these facilities is not compulsory and will depend on your experience and skills, but they can make your journey safer.
63. Cycle Lanes. These are marked by a white line (which may be broken) along the carriageway. When using a cycle lane, keep within the lane when practicable. When leaving a cycle lane check before pulling out that it is safe to do so and signal your intention clearly to other road users. Use of cycle lanes is not compulsory and will depend on your experience and skills, but they can make your journey safer.
The documents accompanying the DfT’s response to consultation provided no evidence that the question of contributory negligence had been taken into account. Under the heading ‘Evidence that cycle routes, cycle lanes and cycle facilities improve cyclists’ safety’, the DfT were able to point to evidence on the relative safety of advanced stop lines, but with regard to cycle routes could only muster the ‘evidence’ that local authorities promote them as a safer alternative route, and with regard to cycle lanes could only reassert that they ‘can’ be safer than the alternative.
Meanwhile, Campaign member Daniel Dignam’s e-petition asking the PM to ‘listen to cyclists and not approve the revised highway code’ had gathered an impressive 29 870 signatures. On 9 July, the Government responded, citing the above changes to the rules and repeating its warning about any further delays.
Having spent their 40 days before parliament, the altered provisions of The Highway Code were referred to a Delegated Legislation Committee. Meeting on 26 June, committee members were advised by Minister Stephen Ladyman that they were unable to debate rules 61 and 63, which were to be the subject of a separate order. Even so, the committee seemed to spend much of its time debating them. It is perhaps disappointing that sympathetic members of the committee appear to have been misinformed as to cyclists’ precise concerns about the relevant rules, leading to muddled statements such as ‘the concern was that a cyclist who followed the procedures would have been in some way contributorily negligent.’ The Minister promised that ‘the CTC … will be involved closely in developing any changes that may be made to the next version’, but was highly critical of the CTC’s lobbying strategy. His comments were prompted by a committee member reading into the record an email from the CTC accusing DfT officials of refusing to meet with it.
A few days later, Stephen Ladyman was replaced as Minister of State by Rosie Winterton, the new Secretary of State for Transport being Ruth Kelly. We can only hope that the new brooms at the DfT will sweep in a new era of cycle-friendly policies and evidence-based advice.
Campaigners are currently left with the task of getting clear and coherent messages across to MPs, with particular regard to the consideration of rules 61 and 63 by the Delegated Legislation Committee. Assuming Parliament does not reject the new rules, there remains the deep-pockets alternative of Judicial Review, where a challenge on logical principles might be successful – or we wait for the contributory negligence cases and rely on the Cyclists Defence Fund.
Otherwise, as a wise man (Al Murray) once said,
‘Those are the rules.
Where would we be without rules, eh? France.
And where would we be with too many rules? Germany.
And where would we be with rules favouring cyclists? Holland!’