TAPAS.network | 6 February 2023 | Commentary | Tom Cohen

The Highway Code hierarchy of road users was a useful step - But we still need to make the balance better

John Siraut

A year ago a new Highway Code brought the significant introduction of a defined hierarchy of road user responsibility for taking care. But it needs both greater clarity and teeth, says Tom Cohen. He argues for a strengthening of how the principle is applied in law.

IT WAS MORE THAN four years ago, in December 2018, that representatives of organisations promoting active travel and road safety gathered in a room near the Palace of Westminster to discuss a series of proposed changes to the Highway Code. Department for Transport (DfT) officials had indicated that the timing was good, given an intention to consult on a revised version.

These things take time, goes the cliché, but a revised Highway Code was indeed published in January of last year, and much was made of the changes. Particular emphasis was placed on the introduction of a new hierarchy of road users, one of the changes for which we as a group had called. It’s that hierarchy’s first birthday so it seems appropriate to take stock of how the new approach is doing - and whether we may need to go further.

The crucial text of the new Highway Code is Rule H1. This states that:

“those in charge of vehicles that can cause the greatest harm in the event of a collision bear the greatest responsibility to take care and reduce the danger they pose to others. This principle applies most strongly to drivers of large goods and passenger vehicles, vans/minibuses, cars/taxis and motorcycles.”

It is not, however, clear exactly what the resultant pecking order is. For example, Rule H2 has cyclists and horse riders giving way to each other depending on the circumstances. Meanwhile, there is a widely shared diagram, produced by a third party (the Press Association, see below) but describing the DfT as the source, that has horse riders bearing greater responsibility than cyclists.

862.37.1

But more interesting than the precise order is the very notion of differing levels of responsibility, and this is something that would no doubt intrigue philosophers - and maybe practitioners - of law.

The text has clearly been carefully drafted: the responsibility is for taking care and reducing danger. Fine as far as it goes. But where does it go? Suppose I am a lorry driver: what am I meant to do in general, given the new hierarchy, that I was not meant to do previously? Rules H2 and H3 set out my duties in terms of giving way at junctions to pedestrians, cyclists, and horse riders, and not cutting such road users off. But these rules, welcome as they are, are quite specific and, more to the point, they are not about taking care – they are about priority. Moreover, they do not differentiate between types of motorised vehicles. This is important because the evidence is clear that, if you collide with a vehicle, your prospects are closely related to its size and weight. So, whilst there are only three rules under the heading “hierarchy of road users”, I am convinced that this cannot (and should not) be the end of the story.

862.37.2

Taking care and reducing danger could, of course, manifest in various ways. We might expect drivers of a “high harm” vehicle to check at greater length than other road users before manoeuvring; or we could hope they would drive more slowly than those in “lower harm” vehicles, an idea already established by the existing speed limitations of public-service vehicles and HGVs. But this is speculation.

As it stands, a general injunction to ‘take care and reduce danger’ is not likely to result in significant behaviour change on its own, so you’ll forgive me for wondering whether legislation and/or application of the law might need to change in line with the Highway Code? More specifically, if I’m responsible for something, am I not by implication answerable too? And, if I’m more responsible than other users because of the means by which I am travelling, then should not the penalties I face for transgression reflect this?

We have been waiting many years for a promised review of road-safety law. Last year we saw the arrival of a new offence of causing serious injury by careless or inconsiderate driving, but that was a long-awaited move to address a gap in the law, not attributable to the new hierarchy. The maximum penalties for certain driving offences were also stiffened, but without reference to levels of responsibility. And we heard much talk about a suggested offence of causing death by dangerous cycling, but that was pure political theatre and, again, not obviously motivated by the new hierarchy, as the original consultation on that idea took place in 2018.

So, for now, things remain much the same for me, a hypothetical lorry driver, as they were before the changes, except that I may receive a longer sentence. But, then, so may the car driver.

DfT officials perhaps foresaw this issue. The official diagram (see previous page) released when the changes were made has three groups of road user, and the “greatest responsibility” group contains all of cars, taxis, vans, minibuses, and large goods and passenger vehicles. It is interesting, in passing, that people driving motorcycles are placed in the middle category, with cyclists and horse riders, despite the vehicles being named in the text as amongst those which “can cause the greatest harm”. This suggests there’s more work to be done on finessing the hierarchy.

I suggest the main reason we may be waiting a long time for the hierarchy to be underpinned in law is this: if certain groups of road users bear the greatest responsibility for taking care and reducing danger, it presumably follows that other groups bear the least responsibility. And this could be taken to mean that a transgression on their part would become less culpable. Officials at the DfT clearly also anticipated this risk: the hierarchy text is both preceded and followed by strongly worded reminders that we all must use the road responsibly etc. But there is a difference between “less culpable” and “blameless”. For example, I hardly imagine that strolling onto the M1 would be considered any more sympathetically following the introduction of graduated penalties associated with vehicle weight, size or ground clearance.

So, back to my main question: and now what? The hierarchy, on its own, and without any significant adjustments to road-safety law, is warm words, though, to its credit, the DfT did carry out a communications campaign about the changes. Welcome warm words, certainly, but nothing to get too excited about. Our work in road justice is not yet done. An important and very interesting debate remains unopened concerning whether culpability is, or should be, a function of capacity to do harm.

This is important because a series of new “shoulds” in the Highway Code is unlikely in itself to make the world safer for those “most likely to be injured in the event of a collision”. If you suspect, as I do, that road-user behaviour has not improved more than negligibly so far as a result of the new Highway Code, you might care to join me in a discussion of what should be the next step to improving the balance of interests amongst road users and working towards a more equitable road-safety policy framework.

References and Links

Tom Cohen is a senior lecturer at the University of Westminster’s Active Travel Academy.

This article was first published in LTT magazine, LTT862, 6 February 2023.

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