A Code for the road?

Keeping the UK's roads safe for active travel and vulnerable users involves using a patchwork of regulation, guidance, codes, orders and powers. As the Highway Code is finally reviewed this autumn, can we create a clearly understood and easily enforceable ‘hierarchy of responsibilities’ that all can get behind? Juliana O'Rourke talked to Ruth Cadbury MP

As transport consultant Phil Jones wrote in the last issue of LTT, all decisions about transport are highly political in nature; and never more so than post lockdown. Funding commitments, data quality / accessibility and decision support tools such as models have been under the spotlight since March. In legal circles, the High Court has granted environmental campaigners the right to a judicial review challenge against the Government’s £27bn roads programme. This comes against a backdrop of increased spending on active travel, albeit increased only to a fraction of the sum planned for roads. The Prime Minister’s £2bn cycling and walking revolution, Gear Change, stated in July: “This document aims to kick off the most radical change to our cities since the arrival of mass motoring... £2 billion of new funding for cycling and walking – representing a six-fold increase in dedicated funding, the biggest increase this country has ever seen.”

Ruth Cadbury, Labour MP for Brentford & Isleworth and co-Chair of the All Party Group for Cycling and Walking (APPGCW), certainly agrees that transport is political. “Since Covid-19, there is a better understanding that transport is a means to an end, not an end in itself, with there being a choice for many journeys;  a significant shift in the politics of transport. The list of commitments made by Government since March in respect of walking and cycling definitely represents a sea change. The APPGCW went into the December election with a list of asks, and the current list of Government commitments goes beyond that list. But that doesn’t mean there aren’t areas where we’d like to go further.” The dismaying numbers of cyclists and pedestrians still being killed or injured on UK roads, mostly by motor vehicles, in 2020 – and since lockdown ­–  is testament to just how much further protection for the most vulnerable road users needs to go.

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A free Highway Code review APPGCW webinar will take place on 18 September at 10.30 am, Chaired by the APPGCW. This is the first of four planned APPGCW sessions. Register your place now: www.transportxtra.com/tx-events/?id=2494

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Cadbury mentions the current review into the Highway Code, aimed at improving road safety for vulnerable road users, and in consultation until 27 October. Three key changes are being proposed:

• Introducing a hierarchy of road users, ensuring that those road users who can do the greatest harm have the greatest responsibility to reduce the danger or threat they may pose to others.
• Clarifying existing rules on pedestrian priority on pavements and that drivers and riders should give way to pedestrians crossing or waiting to cross roads.
• Establishing guidance on safe passing distances and speeds when overtaking cyclists or horse riders, and ensuring that they have priority at junctions when travelling straight ahead.

These plans, in the pipeline before the pandemic, could potentially have a very significant impact on all road users. The Highway Code matters because it shapes the culture on our roads, from how road users treat each other, and how we police road users; and improving policing and enforcement is an area where Cadbury would like to see changes.

A lot depends on whether the resources are available for policing to back up the application of any Code revisions. We have seen significant cuts in policing over the last 10 years, which have only been partially reversed in the last two years. And one of the areas to be significantly impacted in removal of policing resources is traffic enforcement

She suggests that the Review should establish a “hierarchy of responsibility”. “We’ve been thinking for some time about the Highway Code and the way it impacts on driver behaviour. Road safety and confidence is central to getting more people cycling. The Highway Code outlines the ground rules of road use, she says. Yet she feels there is a lack of clarity regarding which parts of the Highway Code are legal requirements (those identified by the words “must” or “must not”), and which are guidance. In the former cases, the rules also include references to the corresponding legislation. In the latter case, advisory rules with wording “should” and “should not” or “do” and “do not” are used.

Offenders contravening the Code may be cautioned, given licence penalty points, fined, banned from driving, or imprisoned, depending on the severity of the offence. Although failure to comply with the other rules would not, in itself, cause a person to be prosecuted, the Highway Code may be used in court under the Road Traffic Act to establish liability. There is also guidance about road use appropriate to actual conditions, which may be temporary road changes or weather. “A lot depends on whether the resources are available for policing to back up the application of any Code revisions,” she adds. “We have seen significant cuts in policing over the last 10 years, which have only been partially reversed in the last two years. And one of the areas to be significantly impacted in removal of policing resources is traffic enforcement.” 

Technology may be able to assist, where the funding is there to resource it. Several London Boroughs are making greater use of Automatic Number Plate Recognition (ANPR) cameras to enforce temporary schemes funded under the Emergency Active Travel Fund (EATF), or to police School Streets or bus lanes. The Department for Transport (DfT) seems to be finally set to give highway authorities in England, outside of London, the power to enforce moving traffic offences such as banned turns and yellow box junction infringements. “The government has agreed to implement the use of cameras for moving traffic outside of London,” says Cadbury, “so that does make standard offences easier to prosecute, in the same way that cameras have been used for speeding offences for some years now.”

A key question for the review will be when and how “responsibility” translates to liability, and how that is policed and managed both legally and socially.

The regulatory framework

Local authorities can already use cameras to enforce parking in bus lanes, red routes, parking restrictions near schools, and bus stop/stand clearways.

A new statutory instrument has shortened the time it takes to make the traffic orders that are needed to put in place measures to encourage social distancing and promote active travel, for example, walking and cycling. Post Covid-19, councils in England have new powers to use CCTV to issue penalty charge notices (PCNs) to drivers who park or load illegally in cycle lanes, putting cyclists at risk of a serious accident. Many of these powers are temporary, and can only be used for “purposes connected to coronavirus”. 

This “bits and pieces” regulatory / advisory landscape is complex and costly to understand and implement, especially in how it translates to liability and insurance issues. “My understanding is that parts of the current highway code are internally contradictory,” says Cadbury. It’s certainly true that across England, Wales, Scotland and Northern Ireland there are a plethora of regulations, guidance, codes, rules, signage and orders, many of them temporary, and enforceable by different powers at different scales on different types of roads. These all need to work together in a compatible way so that liability, legal fall out and loopholes can be avoided in the interests of keeping vulnerable road users safe. 

Finding the funding

“Despite the funding already announced in the EATF and Gear Change initiatives, it’s not clear where local authorities will get funding for long-term walking and cycling investment plans. Local authorities went into Covid-19 very strapped for cash, and the ongoing pandemic is hurting them ever harder. They simply don’t have the funding, capital or revenue, for delivering significant junction improvements, segregated paths and more space generally for walking and biking. They need funding for the planning and for the implementation.”

Cadbury also feels that some of the activities to be “explored” in the Highway Code review need a higher profile, such as the “Dutch reach”, which urges all car occupants to use their inside hands to open their door so that they are naturally turning to see if anybody is walking or cycling alongside before opening the vehicle door. Universal 20 mile an hour speed limits in urban areas are very positive, she says. “Put these together and people will feel a lot safer biking and walking. But it remains key that enforcement can’t happen unless we have adequate policing resources.”

“It’s definitely time for a review,” says Cadbury.” The modern world is changing all the time. Now we have the political support for local authorities to act more independently, but they need guidance.” These are some of the issues that will be discussed on the 18th of September in an APPGCW online session on the Highway Code review, facilitated by Landor LINKS. “We want to raise a number of issues, some of which we know government are committed to looking at, and some which we will encourage them to look at more closely,” says Cadbury. The government is talking about introducing a hierarchy of responsibility, right down to the level of walking. Pedestrians are more vulnerable road users than cyclists, so we need to consider pedestrians when they’re on shared paths and shared surfaces. To me, that’s what the hierarchy means. It means all the way from the very top to the very bottom, and that means looking at how well this hierarchy is actually understood,” says Cadbury.

Beating the backlash

One key aspect of many EATF schemes is that they’ve been implemented without consultation, as local authorities have been empowered to use Experimental or Temporary Traffic Orders in order to act quickly to provide socially distanced active travel options. Many local authorities around England, and the rest of the UK, have seen “backlash”­ against these schemes, with drivers becoming angered that they cannot access some local roads and streets in their vehicles. 

One London resident told a BBC radio programme this week that “active travel interests have got to be balanced against the needs of local people. Covid-19 reactions have pitched neighbouring residents against each other, and whether cameras and planters stay on the streets to restrain traffic will depend on which group has the greater influence.” Many temporary cycling and walking lanes have been removed due to complaints from drivers, some of whom have even moved cones and barriers so they can drive through. However, there has also been a great deal of support for many new active travel initiatives.

Cadbury is hopeful that positive change will win out, eventually. “I wasn't in the Netherlands in the 1970s, but my guess is there was resistance as much as there was a campaign for change. In that case, it was around child deaths. But the Netherlands got through that radical change such that cycling and walking became the new norm.” “Norms” can become unacceptable over time. “Being in a car without a seatbelt, having small children in a car without car seat, and smoking indoors were all once “normal”. So, there'll be hiccups along the way, but one of the few benefits of COVID is that more people are realising that they can change how they travel. They see that the car is not necessarily the best or the quickest or the cheapest option for going somewhere,” adds Cadbury. “We need strong political support, and with government the direction is positive at the moment, but we also need support from the media, and communities need neighbourhood support, and to make their cases for active travel and healthy streets through peer pressure. You put all these together and you get a kind of groundswell for change.”

Ruth Cadbury is Co-Chair of the All Party Parliamentary Group for Cycling and Walking