Highway Code (Rule 149)

Lord Rosser Excerpts

Wednesday 6th April 2022 Lords Chamber

[Baroness Jones of Moulsecoomb (GP)]

My Lords, I also congratulate the noble Baroness, Lady McIntosh of Pickering, for spotting these errors, one might say, in the government legislation. I agree with a lot of what she says, but obviously not always. Personally, I do not have any bad feeling about e-scooters and e-bikes as, so far, touch wood, I have not actually been run over or come close to being run over by them—but I have been run over twice by cars. If we look at those killed or seriously injured, it is cars that are the biggest threat. During lockdown, those killed or seriously injured fell massively, and cyclist casualty rates decreased by a third. So it is cars on our roads that are really the biggest problem.

I do not join in this criticism of cyclists; it is a tiny minority who do not obey the law, and I shout at them just as much as anybody else would here. I was coming into work, to your Lordships’ House, the other day, and a cyclist on the junction of Parliament Square went through a red light, cut across the pavement and went straight through the gates into the Commons. Without running, I followed him and caught him locking up his bike. I pointed out what he had done was very dangerous, asked who he was and could I speak to his boss—that sort of thing. Of course, he would not give me any information and I did not feel up to grabbing his pass. There are people who break the law absolutely everywhere if they think they can get away with it and, clearly, this person, who works in this prestigious establishment, thought he could get away with it as well.

If we are going to be serious about stopping people breaking laws such as using hand-held mobile phones, we need more traffic police. The traffic police in London do the most incredible job, but their numbers have been systematically cut over the years. They need more funding and they need more officers, basically.

Perhaps I may just say—this is completely off the point—please do not use the word “accidents”. That presupposes, and prejudges, that whatever happened was a genuine accident. “Oh, sorry, I didn’t mean to do that.” Actually, no, because these crashes, these collisions, these “incidents”, as the Met Police call them, actually happen mostly because people are using their phones, they are not concentrating, they are picking something up from the floor, they are drunk or they have drugs in their system. So, please, these are not accidents. Those in the road safety community get really upset about it, because they do not think what has happened to their loved ones was an accident most of the time.

[Lord Rosser (Lab)]

I too thank the noble Baroness, Lady McIntosh of Pickering, for securing this debate. The Government have recently broadened the scope of the Highway Code’s rule 149, which now makes it an offence to use a hand-held mobile device for almost any purpose while driving, and not just to make and receive calls and texts. The offence caries a fine of up to £1,000 and six penalty points on the driver’s licence. So, if they commit the offence twice, the number of penalty points could lead to a disqualification.

The regret Motion raises concerns about the scope of changes to the Highway Code, and the “piecemeal” way in which it has been amended. More specifically, the Motion highlights the fact that the latest changes to the Highway Code, to which I have referred, do not extend to hand-held devices used by people on bicycles, e-bikes and e-scooters.

It would seem to me that the happy relationship between some cyclists and e-scooter users and motorists —and who does or does not get more favourable or preferential treatment—clearly remains in fine fettle. It must add an exciting additional dimension to the Minister’s ministerial role. The changes to rule 149 were implemented through the Road Vehicles (Construction and Use) (Amendment) (No. 2) Regulations 2022 that came into force on 25 March 2022. Since 2003, it has been an offence to use a hand-held mobile phone while driving if the device is being used for “interactive communication” —that is, 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 stand-alone feature on the phone—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, in 2020 the Government launched a consultation on expanding the offence of using a mobile phone while driving. Following the consultation, the Government said 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 also said that more than 80% of respondents “agreed with the proposal” to broaden the offence to cover the use of stand-alone features on a phone.

The original consultation document, though, 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. Why did the Government make no such commitment? Does the lack of such a commitment mean that changes will not be applied to cyclists, e-bikes and e-scooters at any stage in the foreseeable future, or is there a possibility that they will be? That would add strength to the point in the regret Motion about making changes in a piecemeal way.

As I understand it, the Highway Code—I think it is rule 66—already states that cyclists should

“keep both hands on the handlebars except when signalling or changing gear”.

To what extent do the Government think this rule already prevents cyclists exercising the functions that rule 149 outlaws?

The regulations create a new exemption for contactless payments in certain circumstances. This is presumably to allow for drivers to use toll booths and drive-through restaurants—it is an interesting exemption. In recent months road traffic accidents have been reported at both, hopefully not—I say this not too flippantly—because someone took the words “drive-through” too literally. Do the Government believe that learner drivers should be taught how to safely use and negotiate toll booths and drive-through restaurants in light of the fact that road traffic incidents have recently been reported at both?

The Government say in the Explanatory Memorandum that changes to the Highway Code reflect the changes in the statutory instrument. They say:

“The government will also expand the advice contained on gov.uk to address some common misconceptions about the law on mobile phone use while driving which became evident through the consultation process.”


However:

“For those responsible for enforcement (police and courts), the government will rely on them to alter their guidance as necessary to reflect the changes to the law.”


Reference has been made to the Secondary Legislation Scrutiny Committee, which noted that more information had been given in the Explanatory Memorandum this time about plans to publicise the changes. The committee also stated that this House had

“made clear the strength of its concerns about the Department for Transport’s piecemeal approach to changing the Highway Code”

and that the committee remained

“concerned that the hard copy version of the Highway Code is so out of date.”

A question has already been raised on that issue, and no doubt the Minister will respond to it. I too ask what the Government’s response is to the comments made by the SLSC.

In the context of changes and whether they are piecemeal, how many more changes to the Highway Code are already in the pipeline, reflecting statutory provisions either already determined or currently going through the legislative process? Perhaps the answer is none, but it would be helpful to hear from the Government what it is. How many changes have there been to the Highway Code over the last five years? Is it the Government’s policy to make changes to the code immediately those changes have been decided, or does the department seek if possible to make changes to the code, say, only once a year?