On 6 April 2022, the House of Lords is due to consider a regret motion on changes to rule 149 of the Highway Code. Rule 149 makes it an offence to use a hand-held mobile phone or similar device while driving. The Government has recently amended the rule to broaden the definition of what constitutes ‘using’ a device. Previously, it only applied when the device was being used for ‘interactive communication’, such as making or receiving a call. It now applies to using almost any of the device’s features while driving (with some exceptions). The offence carries a fine of up to £1,000 and six penalty points on the driver’s license.

The changes to rule 149 were implemented through the Road Vehicles (Construction and Use) (Amendment) (No. 2) Regulations 2022 (SI 2022/81). The instrument was laid before Parliament on 1 February 2022, under the made negative procedure. The objection period for the instrument has passed and it came into force on 25 March 2022.

Baroness McIntosh of Pickering (Conservative) has tabled the following regret motion on the changes:

That this House regrets the alterations to the Highway Code (Rule 149) because (1) of the piecemeal introduction to Parliament of proposed changes to the Code, and (2) it does not extend to handheld devices used by people on (a) bicycles, (b) e-bikes, and (c) e-scooters.

If agreed, the motion would formally signal that the House has reservations about the changes for the reasons stated, but it would not stop the regulations from having legal effect.

What is the background to the changes?

Since 2003, it has been an offence to use a hand-held mobile phone while driving, if the device was being used for ‘interactive communication’ (eg receiving a call or sending a text). In 2019, the High Court upheld the quashing of a conviction of a man who had taken a video on his phone of a road traffic accident while driving. The court accepted the argument that using a ‘standalone’ feature on the phone (eg recording a video, taking a photo, or searching for music stored on the phone) was not an ‘interactive communication’ within the definition of the regulations.

In response to the judgment, the Government launched a consultation in 2020 on expanding the offence of using a mobile phone while driving. In the consultation outcome, the Government said it considered that:

All use of a hand-held mobile phone while driving is reckless and dangerous, and not just when being used for the purposes of a call or other interactive communication.

The Government said over 80% of respondents agreed with the proposal to broaden the offence to cover the use of ‘standalone’ features on the phone. Around 75% of respondents agreed with the consultation’s proposal that there should be an exemption for using a phone while the car is stationary to make a contactless payment for goods or services received immediately (eg paying for a car park or for food at a drive-through restaurant).

The original consultation document did not make any reference to extending the offence to include other road users, such as cyclists or users of e-scooters. The Government’s response to the consultation stated that some respondents had raised the issue of extending the proposals to those road users, but the Government made no commitment to do so.

The Government has published an explanatory memorandum on the regulations that implemented the changes to rule 149. The Government said it was making the changes because:

A problem has arisen in recent years because the array of functions that mobile phones can now perform has outgrown the wording of the offence and its parameters. Drivers are now using hand-held mobile phones to do more than make phone calls and send messages […] Over recent years, increasing numbers of drivers have been acquitted in the courts on the basis that they were not using a hand-held mobile phone for interactive communication purposes.

The Government said the police were therefore “faced with a dilemma”: they either use “disproportionate amounts of resources” to prove the nature of the mobile phone use or they apply the offence of careless and inconsiderate driving, where the “penalties are not as tough as for the dedicated mobile phone offence”.

The Department for Transport has published a document that shows how the text of Highway Code rule 149 has been amended.

What parliamentary scrutiny have the changes received?

The regulations that implemented the changes were laid before Parliament on 1 February 2022. The instrument did not require the approval of either House before coming into effect.

The House of Lords Secondary Legislation Committee reported on the instrument on 22 February 2022 and noted it as an instrument of interest. The committee noted that the House of Lords had previously “made clear the strength of its concerns about the Department for Transport’s piecemeal approach to changing the Highway Code”. The committee also stated it remained “concerned that the hard copy version of the Highway Code is so out of date”.

In January 2022, a regret motion was tabled in the House of Lords on regulations implementing a previous set of changes to the Highway Code. In February 2022, Baroness McIntosh of Pickering asked an oral question in which she criticised the Government for what she described as the piecemeal way it was amending the Highway Code. In response, the transport minister, Baroness Vere of Norbiton, said “we have changed and will continue to change the Highway Code, because the situation on our roads is developing very quickly.”

The Joint Committee on Statutory Instruments considered the instrument on 16 March 2022, but did not raise any concerns.

The objection period for the instrument ended on 22 March 2022, and it entered into force on 25 March 2022.

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