Reforming highways law and cycling

I formally submitted the following to the Law Commission. I suggest it is noted …
1st Floor, Tower
​52 Queen Anne’s Gate
London
SW1H 9AG
020 3334 0200
​ programme@lawcommission.gsi.gov.uk
Dear consultee

Thank you for taking an interest in this consultation for our 13th Programme of law reform. Your contribution will play a vital part in helping us shape our work programme for the next three or so years. We are enormously grateful to you and every other consultee who takes the trouble to tell us about their ideas.

The Law Commission carries out law reform projects with the aim of making the law fair, simple, clear and cost-effective. The purpose of this consultation is to establish what new areas of law we should review in our next programme. To do this, we are asking: where is the law failing to work properly?

Please use this questionnaire to tell us where you think there is a significant problem with the law. We want to know what you think is wrong and what practical problems arise. Please give us as much information as you can, even if you cannot answer all the questions. If we need to know more, we may contact you.

What types of problem will we investigate?
Not all legal reform is suitable for the Law Commission. Please tell us about a problem only if it relates to the law and is:
• causing substantial unfairness, or
• widely discriminatory or disproportionately costly, or
• caused by laws or policies that are complex and hard to understand or
• caused by laws or policies being out of step with modern standards.

Our law reform programme will not include subjects where the considerations are shaped primarily by political judgements (for example, abortion, immigration, membership of the EU, the Human Rights Act, capital punishment, decriminalisation of drug use) or issues of established Government policy, such as taxation. We will not consider problems that relate only to a particular individual’s experience of the law as opposed to a more general problem. We do not work on issues that arise only in Scotland or Northern Ireland.

How we make decisions
When considering a potential law reform project, we are guided by our Protocol with Government (which is available on our website). The Protocol is intended to ensure that our recommendations have the best possible chance of becoming law. Some key points that we will look at when considering a project are:
• How important is the project: to what extent is the law unsatisfactory (eg, unfair, unduly complex, inaccessible or out of date)? What are the potential benefits of reform?
• Is the independent, non-political Commission the most suitable body to conduct the project?
• Are the necessary resources (for example, sufficient relevant experience, project-specific funding) available to enable us to carry out the project effectively?
• Would the project require involvement from the Welsh Government and/or the Scottish or Northern Ireland Law Commissions?

We will also assess whether there is likely to be Government support for a project. In order for a project to form part of our programme, a Government department must confirm that it has a “serious intention” to take forward law reform in that area. If Government does not seriously intend to see the law reformed there is no realistic prospect of any recommendations we make becoming law.

What happens next?
We will review all responses before drawing up a list of potential projects, where appropriate working with the relevant Government departments. As set out in the Law Commissions Act 1965, the Lord Chancellor will decide the final contents of the Thirteenth Programme. We expect this to be during 2017.
We are likely to receive a large number of responses but can only accept a small number of projects for the Thirteenth Programme; for our Twelfth Programme we received over 250 responses, which led to nine new projects. We understand you may be disappointed if your proposal is not taken forward but please be assured we are grateful for your contribution. If you have any questions about the consultation process, please contact us on 020 3334 0200 or via programme@lawcommission.gsi.gov.uk.

Our statute law work
Consolidation
Please also tell us if you think it would be beneficial to bring together (consolidate) a number of statutes that all deal with the same area of law into a single new Act. That might just require the relevant legislation to be redrafted or might involve reform of some of the underlying law. Proposals for consolidation that do not involve substantial law reform will be considered separately from the law reform programme, but we are happy to receive suggestions for such work as part of this consultation.

Statute law repeals
Another important function of the Law Commission is to repeal Acts, or parts of Acts, that no longer have a modern function, either because they are spent or have become obsolete. Where such Acts are recorded as still being in force this can be misleading and time consuming for those who come across them. Although it does not form part of our law reform programmes, we are using this opportunity to try and find out if there are areas of law, or particular Acts, that cause people concern and which might be good candidates for consideration by the SLR team.
Please let us know if you have encountered obsolete Acts and the sorts of problems that have resulted.

Kind regards

The Law Commission

Please send us your response no later than
31 October 2016

Thirteenth Programme of Law Reform consultation response

Please answer as many of these questions as you can, as fully as you can. If necessary, continue on additional sheets. Please also indicate where you are not able to provide an answer.
Please tell us about yourself:
Name: ​Clive Durdle

Address:​4 Toronto Road
​Ilford
​Essex IG1 4RB

Email:​clivedurdle@mac.com
Tel: ​07941988846
(Please tick one or more box)

Member of the public   ​

Consultation Principles: The Law Commission follows the Consultation Principles set out by the Cabinet Office, which provide guidance on type and scale of consultation, duration, timing, accessibility and transparency. The Principles are available on the Cabinet Office website at:
https://www.gov.uk/government/publications/consultation-principles-guidance.

We treat all responses as public documents in accordance with the Freedom of Information Act and we may include the names of respondents and attribute comments in any publication relating to this consultation. If you want your submission to remain confidential, you should contact us before sending your response. (Please note that we disregard automatic IT-generated confidentiality statements.)

1. In general terms, what is the problem that requires reform?
Road traffic law
2. Can you give an example of what happens in practice?
For example, if you are a solicitor or barrister, you might describe how the problem affects your clients.

There is a clear mismatch between law and practice in different professional areas, for example health and safety at work, aviation, shipping, medical practice and road law.
There are very significant possibilities for general overarching law that uses best practice from other areas. It is as if “life between buildings” has become a legal backwater, with traditions that do not match practice in other areas.

3. To which area(s) of the law does the problem relate (please tick one or more box)?
Administrative or public law ​​Criminal law​
Property or land law​​Family law​
Trusts and wills​​Commercial or contract law​
Consumer law​​Regulatory law​
Planning and environment​​Don’t know​
Other (please state): Equality Health And Safety Aviation Shipping Medical Practice

4. We will be looking into the existing law that relates to the problem you have described. Please tell us about any court/tribunal cases, legislation or journal articles that relate to this problem.
You may be able to tell us the name of the particular Act or a case that relates to the problem.
http://ec.europa.eu/transport/modes/air/safety/safety_management_en.htm.
This link discusses the ways incidents and accidents are managed in aviation, using preventative pro-active methods. In contrast, incidents on roads use concepts like “killed and serious injuries” and give the impression they are not looking at everything in detail.

A motor vehicle is a moving heavy machine that is being operated by someone licenced.

There are myriad opportunities for defining common principles but for some reason I do not understand, this has not happened.

I understand for example that the HSE does not investigate incidents at work that occur on highways, there would seem to be bureaucratic interpretations of “workplace” for example that are not needed and prevent dissemination of best practice.

Similarly, the requirement to be at work also limits opportunities for improvement to the common wealth
5. Can you give us information about how the problem is approached in other legal systems?
You might have some information about how overseas courts or tribunals approach the problem.

I am requesting that already existing excellent practices be checked to ensure they do not have unneccessary barriers like workplaces, or highways, and that the principles be clearly elucidated with subsections about how to apply them in particular areas.

Currently, we seem to write law for the particular areas, which surely creates a huge amount of duplication.
6. Within the United Kingdom, does the problem occur in any or all of England, Wales, Scotland or Northern Ireland?
Yes
7. What do you think needs to be done to solve the problem?

Establish clear legal principles about prevention, precaution, equality, risk, hazard, nuisance, tort, damage, assault, trespass and related areas and ensure they are equally applicable in all areas of law. It is in fact not obvious that highways law is required, as it could be a subsection of other areas.
8. What is the scale of the problem?
This might include information about the number of people affected this year or the number of cases which were heard in a court or tribunal over a particular period.
Several thousand deaths and serious injuries. Huge societal costs.
9. What would be the benefits of reform? In particular, can you identify any:
• economic benefits (costs of the problem that would be saved by reform); or
• other benefits, such as societal or environmental benefits?
For example, if the problem is one which must usually be resolved in court, court fees might be payable; this money might be saved if the problem was reformed. If it involves consulting a solicitor or barrister, legal costs might be relevant. Or, if the problem was one which caused significant costs to businesses, you might be able to tell us how much time or money businesses would save.
Huge savings across whole of society. I understand a key issue is that the issue is not recognised.
10. If this area of the law is reformed, can you identify what the costs of reform might be?
The costs of reform might include, for example, the cost of the legal profession and judiciary undertaking training to learn about a new statute.
There may actually be significant cost savings, as aim would be clear comprehensive law that is open understood and agreed.
11. Does the problem affect certain groups in society, or particular areas of the country, more than others? If so, what are those groups or areas?
As an example, if the law relates to agricultural land, it might affect farmers and their families more than the general population.
This affects everyone
12. In your view, why is the Law Commission the appropriate body to undertake this work, as opposed to, for example, a Government department, Parliamentary committee, or a non-Governmental organisation?
Because I understand this to be at base a legal problem. Different areas of law and practice have grown up over time and have not been reviewed to tease out the real commonalities and strengths of areas that can easily be applied more generally.
13. Have you been in touch with any part of the Government (either central or local) about this problem? What did they say?
Particular organisations are obviously working within their own processes and find it very difficult to think how else might matters be structured. They are doing things right as they believe, but have not asked are they doing the right things?
14. Is any other organisation such as the Government or a non-Governmental group currently considering this problem? Have they considered it recently? If so, please give us the details of their investigation of this issue, and why you think the Law Commission should also look into the problem.
Not known

Thank you for your response.
Please send, by 31 October 2016, to: 13th Programme Project Officer
Law Commission
1st floor, Tower, post point 1.55,
52 Queen Anne’s Gate, London SW1H 9AG
Tel: 020 3334 3858
Email: programme@lawcommission.gsi.gov.uk
Fax: 020 3334 0201

We would like to know more about what our stakeholders think of the Law Commission and our work, and hear your thoughts on what we might change or improve. If you would be willing to take part in a short survey, please would you give us your email address:

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