That this House regrets the Draft Revision of the Highway Code because, despite making important changes to protect road users from harm, Her Majesty’s Government has failed sufficiently to educate the public on the changes.
The regret motion cannot stop or amend the Government’s proposals, but gives members of the House of Lords an opportunity to put on record their dissent.
What is the Highway Code?
The Highway Code is a set of rules for road users in England, Scotland and Wales. Many are legal requirements and disobeying them means committing a criminal offence. For those rules which are not legal requirements, not complying can still have consequences as the code can be used in court proceedings to establish liability.
How is it updated?
The Government has said that it is important that the Highway Code “keeps pace with change”. As a result, it regularly updates it.
Alterations to the Highway Code are not technically statutory instruments but are by virtue of their parent act. Section 38 of the Road Traffic Act 1988 allows the secretary of state to revoke, vary, amend or add to the provisions of the code. To do so, they must consult with “such representative organisations as [they] think fit”. The secretary of state must also consult Parliament by laying the proposed changes before both Houses. The proposals are subject to a 40-day approval process which begins on the day they are laid. This period must not include any time when Parliament is dissolved, prorogued, or adjourned for more than four days. If during this period either House resolves against the proposed changes, the secretary of state must not make them. However, they are not required to consult Parliament for any alterations that are “merely consequential on the passing, amendment or repeal of any statutory provision”.
What is the background to the proposals?
In 2018, the Government launched a call for evidence on the Cycling and Walking Investment Strategy safety review. As a result of this work, it said it would review the Highway Code to improve the safety of the most vulnerable road user groups.
As part of the review, the Government worked with expert stakeholder groups that represented different road users to look at the rules in the Highway Code. It focused specifically on “how [the rules] could be amended to improve safety for pedestrians, particularly children, older adults and disabled people, cyclists and horse riders”.
Following this, in July 2020, the Government launched a public consultation which ran for 12 weeks and received nearly 21,000 responses. It asked for feedback on the following proposals:
- introducing a hierarchy of road users to ensure those 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 at crossings or waiting to cross the road; and
- establishing guidance on safe passing distances and speeds when overtaking cyclists or horse riders, and ensuring they have priority at junctions when travelling straight ahead.
The consultation found that the majority of respondents were in favour of the proposals. It also highlighted that the timing was welcomed, “as more embrace alternative modes of transport, with cycling and walking on the increase”. In addition, there was agreement that offering these road users greater protection was important.
The consultation only asked respondents to comment if they disagreed with the proposed rule changes. The Government said that the feedback was therefore largely negative in nature and had been “considered proportionately to balance against the higher number of respondents who agreed with the rule changes” but did not leave comments. However, it said that some points were raised which it would consider. It said that through engagement with “our expert stakeholders and policy officials”, these issues were discussed at length and amendments made where significant concerns were identified. Some of the key changes made because of this work included:
- The introduction text under ‘hierarchy of road users’ was reordered to emphasise the point that all road users have responsibility for their safety. This followed concerns that the hierarchy of road users would lead to vulnerable road users, particularly cyclists, taking more risk. Freight and haulage companies also raised concerns that they would be held automatically liable in the event of a road collision.
- The amending of rules 66 and 213 to reinforce the message that cyclists can cycle side-by-side. This followed comments that cycling this way can help build the confidence of new cyclists and for adults cycling with children. It was also argued that it is often safer to cycle two-abreast as cyclists are more visible and it is easier for drivers to overtake them than a long line of single file cyclists.
- The wording of rules 67, 76 and 163 has been strengthened to ensure cyclists are aware of the dangers of passing to the left of large vehicles, particularly at junctions. This followed concerns raised by respondents that passing to the left is dangerous in certain situations.
- The introduction of safe passing distances and speeds at rule 163 have been simplified following concerns that they were too complicated.
- Rule 67 has been amended so that the advised distance to pass parked cars is a metre (in keeping with a car door width). This followed concerns that half a metre was not enough space as people often swing car doors open widely.
- Rule 239 has been strengthened on creating trip hazards with vehicle charging cables.
The proposed obligation for drivers to give way to pedestrians waiting to cross at a junction also raised “considerable concern” with drivers, with respondents questioning how they would know a pedestrian’s intention. The Government said it had considered these concerns but decided not to make any further amendments. It said that the change would reduce the risk to pedestrians, particularly older and disabled people, when crossing at non-signalised junctions and that as the code already requires drivers to use their judgement, they can be expected to in these situations to judge a pedestrian’s intention.
The Government also highlighted that since it launched its review, Highways England had undertaken a review of the Highway Code which focused on improving safety on motorways and high-speed roads. As a result of the Highways England review, it suggested changing the guidance on aspects of motorway driving, including preparing for journeys and knowing how to use motorways. It also proposed altering provisions in the code on issues including driving in adverse weather conditions and roadworks. Highways England laid their proposed changes before Parliament in June 2021 and they were approved in September 2021. The Government said that it therefore would not look to further amend the areas that overlapped with its consultation.
What has the Government proposed?
Draft revision of the Highway Code
On 1 December 2021, the Government laid before Parliament documents setting out proposed changes to the Highway Code. The Draft Revision of the Highway Code—Introduction and Rules to Improve Road Safety for Cyclists, Pedestrians and Horse Riders 2021 was published alongside accompanying documents, including an explanatory memorandum and a table setting out in full the proposed changes. If the draft is not objected to by either House, it should come into force on 29 January 2022.
In the explanatory memorandum—prepared by the Department for Transport—the Government said that one of the greatest barriers for people choosing to cycle or walk is safety, and perceptions of safety. It therefore explained that in line with its ambition to increase the number of people choosing to travel on foot or by bike, the changes would “clarify responsibility, improve safety, and give pedestrians and cyclists priority in certain situations”.
The Government said that the proposed revisions would encompass the three key concepts set out its consultation (as outlined above) and in doing so would amend the introduction of the code, 47 existing rules and two annexes. It would also revise the rule numbering by merging existing rules to accommodate four new ones. These would provide advice for cyclists on:
- safe road positioning;
- safe cycling at junctions and when going straight ahead; and
- safe use of shared space.
The Government said these changes would “help keep our roads safer, particularly for the most vulnerable road users”. It also highlighted that ensuring these groups feel safe could promote walking and cycling, which in turn could: reduce air and noise pollution from car use; mitigate traffic congestion; increase levels of physical activity; and lead to more sustainable communities.
In its explanatory memorandum, the Government highlighted that in its consultation, effective communication of the changes was a common theme raised by respondents. It said that if the proposals were approved, it would “implement a robust education and behaviour change campaign ensuring the changes are effectively communicated to the public”.
What parliamentary scrutiny has there been?
In its 24th Report of Session 2021–22, the House of Lords Secondary Legislation Scrutiny Committee considered the draft revision of the Highway Code. It drew special attention of the House to the proposals on the grounds that “they are politically or legally important and give rise to issues of public policy likely to be of interest to the House”.
The committee’s main concern was around communication. It said that:
While the proposed changes appear sensible, improvements to the way those changes are communicated to the public need to be addressed urgently. We strongly support the principles of good law which include that the law must be accessible to all.
The committee noted that it had raised similar concerns about the last set of proposed changes to the Highway Code. It said that it had written to the Department for Transport and that in the department’s response, the Government had said that its “well-established THINK! campaign” would be developing a communications campaign. The Government stated that it had created a Highway Code communications working group “to exploit as many communications channels as possible”. The committee said that while this response was encouraging, it argued that the new changes would need a special communications strategy to inform groups that do not habitually consult the Highway Code about their responsibilities. It also said that the department needed to reach those who use pavements who should not (cyclists and e-scooter riders).
Another concern raised by the committee was about the code’s physical publication. Stating that the changes would come into force and show online before updated hard copies of the code were published, the committee argued this was discriminatory to certain groups. In particular, the elderly and disadvantaged, who may not have access to IT equipment. Responding, the Government said there were logistical difficulties in publishing the hard copies, including acute paper shortages and the recommended retail price being too low for many retailers to be able to stock the code.
The committee also highlighted concerns about the feasibility of some of the recommended passing distances in narrow country lanes and said that what should be done in such situations needed to be clearly explained. However, it welcomed the extensive consultation conducted by the Government during the design of the proposals.
What other commentary has there been?
Various organisations have commented on the changes and the importance of ensuring they are well communicated to the public. For example, commenting on the proposals in July 2021, RAC head of roads policy Nicholas Lyes welcomed the proposals, stating they should make cycling and walking safer. However, Mr Lyes said that a concerted effort must now be made to communicate the changes to drivers. He explained this was important as many drivers do not check the Highway Code for long periods after passing their tests and that confusion on the rules could lead to avoidable collisions.
A survey conducted by the AA between 8 and 18 January 2022 polled more than 13,700 drivers on the changes. It found that one in three drivers were unaware of the new rules coming into force. It also reported that 33% of motorists polled said they did not know the Highway Code was being updated, with 4% saying they had “no intention” of looking at the details. Commenting on the findings, AA head of roads policy Jack Cousens said that “with a week to go, too many drivers are unaware of the new rules” and that although the changes had been announced in summer 2021, the Government had not done enough to promote them. He encouraged people to read the updated code. Head of campaigns and advocacy at charity Cycling UK Duncan Dollimore had also called on the Government to ensure the changes were communicated and criticised previous road safety campaigns.
- a factual awareness campaign in early February, alerting road users to the changes as they come into effect”; and
- a broad behaviour change campaign later in the year, to align with seasonal increases in active travel, to help embed the changes and encourage understanding and uptake of the new guidance.