Passing Laws

This isn’t the first time I’ve quoted David Allen Green’s article “Should We Ban Banning Things?”

“The legalistic prose in a solemn document is not some magic spell which banishes horrors by invocation. To say there should be a law against a thing is often no more than saying there should be a spell against it. In fact, “banning” things often creates new problems.”

This précis is rarely more applicable than to Motion 14 of this year’s CTC/Cycling UK annual general meeting. CTC council opposes the motion, and—as I’m sure you might already suspect—so do I, although for largely different reasons.

What is Motion 14?

Motion 14, which I quote here in full, proposes the following:

“The AGM requests a legal requirement for minimum passing clearance when overtaking or near to cyclists, to try and reduce the frequency of motor vehicles passing too close. On roads with speed limits up to and including 30mph or when passing at a speed up to and including 30mph, a 1m minimum is suggested. On roads with higher speed limits, a 1.5m minimum passing distance is suggested. In addition, on narrow roads frequent passing places should be provided.”

The desire to achieve this is wholly understandable: anyone who has cycled on the road knows that probably the worst aspect of it is the proximity with which some drivers pass. Those of us who ride on the road would all dearly love to fix that. We would all love to cast that magic spell which banishes the horrors of the close pass.

But to believe that creating a law against it will fix it is not only naive, it is downright harmful to the goals of achieving more and safer cycling.

Enforceability

Possibly the most obvious problem with a passing law is that of the lack of enforceability. A simple and accurate limit does not mean that real world measurements are simple or accurate, and this means that these measurements struggle to be credible—a fact that was well demonstrated in Martin Porter’s recent private prosecution.

Indeed, even constructing the law so as to provide for the basic necessity of measurement is difficult enough. How would the distance between a bicycle and a motor vehicle be measured? There are no two single points between which the distance would be measured, and the two vehicles are in constant motion relative not only to the highway but also to each other.

Detecting a speeding offence, for example, is comparatively facile; but nonetheless it requires calibrated equipment and can only be detected where that equipment is situated. For the police or a highway authority to detect a passing distance offence would require the same: for them not only to possess and use calibrated detection equipment, but also for the offence to occur at a location covered by that equipment.

Of course, you could build a bicycle-mounted device to measure passing distances. But then you’d have to get it calibrated and approved; and even if you succeeded, either you’d be the one evidence gatherer in the country or any protection afforded by the law would be available only to those willing and able to pay for the privilege of owning one of your devices. (The “Nearmissometer” in that link isn’t an evidence-gathering device, it’s a data-gathering device.)

There are those who suggest that sometimes a close pass captured on video is so “obviously” close that accuracy doesn’t matter. I think this is optimistic at best. Refer back to Martin Porter’s case, and the driver’s excessive speed—estimated at around 180% of the speed limit—is obvious, but there was no punishment for it. Drivers are frequently quite capable of evading penalties when detected by properly calibrated equipment, let alone a video camera; it would be foolish indeed to assume that something that seems “obvious” on a video is inherently sufficient to prove legal culpability.

Others argue that the unenforceability of the law is not a problem and that its real value is in acting as a reminder; they often cite roadside signage such as can often be seen in, for example, France. But this actually sides with council’s opposing position on Motion 14, which argues that the Highway Code is a better place to recommend passing distances. If one accepts that the law is unenforceable and points out that it is simply visual reminders of desired behaviour that is important, then it makes no sense to argue for legislation.

Keen readers may be itching to remind me that I’ve previously argued in favour of unenforceable laws, but I’ve argued that point only for offences which are highly provable following a collision, making the prosecution of negligent driving much more straightforward in such circumstances. This is not the case for a distance passing law: it is not obviously more provable after a collision than before it; and the fact that a collision has occurred is, after all, a clear indication that the distance between the two vehicles was zero.

Belief

The belief that a law will make a difference is just that: a belief. The proposer of Motion 14 offers a Cycling Tips article, which reports the recent introduction of a distance passing law in South Australia. It references an earlier Cycling Tips article, prior to the legislation, in which Garry Brennan of Bicycle Network says,

“We looked at the evidence and we found there were no benefits where [a minimum passing distance law] had been introduced—there’d been no benefits for bike safety. Where the law has been introduced and research has been done, the vehicles are not giving cyclists more room.”

The law was to all intents and purposes the direct result of lobbying by the Amy Gillett Foundation, whose other most notable policy is supporting compulsion of cycle helmets and who are often accused of being an anti-cycling organisation. As Brennan notes,

“The AGF have staked everything on this campaign and have lobbied and promoted it up and down the country, but they never asked the fundamental question: what would success look like? How do they measure the success of the campaign? Is it political support for a new law, or is it changes to trauma rates or road user behaviour? Their energy and persistence is admirable, but they were asking for the wrong thing—they just didn’t seem to realise that one metre laws have never reduced trauma or improved behaviour.”

Needless to say, Motion 14 also has no mention of any performance indicator or measure of success. It is the result of a belief system: a bad thing is happening, we assume a law will fix it, and because we assume that it will do so we shall not question it. It is blind faith: belief without evidence, assertion without scrutiny.

Responses

Let us imagine for a moment that the unthinkable happens and everyone adheres to the law. Then let us consider some real-world scenarios.

For instance: riding two-abreast. In the short film “Side by Side”, Chris Boardman explains why riding two abreast makes it easier to overtake safely; yet—depending on the road and the exact position of the riders—this may make it difficult or impossible to adhere to the 1.5m passing rule. Would pro-driving organisations therefore seek legislation against two-abreast riding?

Equally, what happens on singletrack carriageways? Certainly, there are many times on such roads where it is dangerous to pass, but how does the distance passing law deal with a rider who voluntarily slows and moves aside, gesturing to allow a driver to pass? The Highway Code currently advises slow road users to move aside to allow a queue of traffic to pass; would pro-driving organisations seek legislation to make this mandatory?

What about the times when a rider quite reasonably chooses not to use a cycle lane? Would pro-driving organisations see a distance passing law as unreasonable in conjunction with this option, and seek legislation to make the use of cycle lanes mandatory? Perhaps not so much of an issue if Britain’s cycling infrastructure looked like that of the Netherlands, but it’s currently very, very far from it and will be for quite some time.

This sort of unilateral legislation should not be assumed to be acceptable to all. And although the proposer of Motion 14 cites Australia in support of the law, in fact Australia offers a stark note of caution.

Take note of the legislation that accompanied the distance passing law in New South Wales: riders over 18 must now carry ID, and the fines for a number of cycling offences—such as not wearing a helmet, not stopping at a crossing or passing through a red light—all rose more than fourfold, to a level either equal to or exceeding that for violating the distance passing law. If you’re reading this then there’s a good chance you cycle frequently, so your instinctive pro-cycling viewpoint might be to see the further erosion of cycling freedoms and the increase in cycling penalties as the political price paid for the safety that you assume the distance passing law to bring. But step away from that viewpoint for a moment and consider a different one: an anti-cycling viewpoint, where an broadly unenforceable rule for drivers is a sop to ease the further erosion of cycling freedoms and the increase in cycling penalties. If a worthless sop can be dressed up as a pro-cycling measure, it becomes a valuable political gambit for an anti-cycling agenda.

Road politics is, sadly, a game of diplomacy, and demands for legislation—especially those based on hope rather than evidence, and especially those unilaterally voiced by groups at a political disadvantage—should not be made without careful consideration.

What cost?

The cost of pursuing a legislative change is not to be sniffed at: it takes time and it takes money, but more importantly it takes political energy and it changes the political landscape.

Let us be clear for a moment about one thing.

Decades of fiddling with legislation, championing education and promoting of on-carriageway cycling have brought neither significantly greater safety nor significantly greater participation—not in this country, nor in any others. Note my comment above, that close passing is an issue that “those of us who ride on the road would all dearly love to fix”. There is an implicit remark lurking behind it: those who only ride away from the road are broadly unlikely to give two hoots about it, because it won’t suddenly make them want to mingle with cars and trucks.

Let me paraphrase a challenge that I set in regard to to presumed liability: Find someone who doesn’t cycle on the roads. Tell them that if they cycle on the road we will introduce a law whereby it will be possible to fine people who can (somehow) be deemed to have passed within a metre or so of them, and ask them if they have now changed their mind and are now happy to cycle on the roads. If you can find someone who says yes, let me know in the comments and I will send you a unicorn.

The similarities between the over-eager push for distance passing laws and the over-eager push for presumed liability are significant: both represent perfectly reasonable goals in an idealistic sense, but they’re very much the result of the perceptions of a pre-selected group. They are not just a reflection of the status quo but an introspection of it, and as such they are political diversions from the policies that actually will make a difference—by which I mean those which have actually been shown to make a difference. And those policies are: build good infrastructure, build good infrastructure, and build good infrastructure.

Worse still: because policies such as distance passing laws and presumed liability focus so much on the status quo, they reinforce it. The more effort politicians put into policies that are perceived (or can be sold as) improving life for people on the carriageway, the less keen they will be to invest effort in then enabling them not to be on the carriageway in the first place. In other words: spend all your political capital on demanding laws to protect cyclists on the carriageway and you undermine the case for providing protected routes off the carriageway.

The goal of protecting the people already cycling on the road is a valid one, but if you’re taking your eye off of the far greater goal to deal with that then you’d better make sure that whatever you demand—especially something so significant as an additional law—is going to make a significant difference. A distance passing law is at best an uneducated gamble, and at worst complete ignorance of evidence-based decision-making.

Steer clear

There is no evidence to suggest that a distance passing law will make cycling more attractive, nor is there much logical reason to suggest that it will. There is also no credible evidence that it reduces casualty rates or collision rates per kilometre cycled on the carriageway.

For sure, safer passing is an entirely desirable thing. But legislation is not a form of hypnosis that suddenly makes people behave better; especially not if enforcement is difficult.

The political stakes are high, and one of the greatest perils of any struggle to achieve real change is the temptation to gamble on hope; the belief in something being “better than nothing” often results in something worse than nothing.

CTC council is absolutely right to oppose this motion, and is absolutely right to recognise that if drivers are to be given additional guidance in this matter then the Highway Code—despite its volatile relationship with the law—is a better place for it than the statute book. The fact that it is not legally binding is actually no bad thing, because to make the measurements legally binding would be to fail to understand the practical difficulties and social ramifications of such an ill-constructed law.

Motion 14 is probably the most naive proposal I have seen in a long time, and the pursuit of any such policy would be harmful to the goal of achieving more and safer cycling. It plays into the hands of those who would prevent cycling becoming an accessible transport option and it undermines the efforts of those who would enable it.

If you are reading this as a CTC member, I would suggest opposing Motion 14; if you are reading it in any other capacity, I would simply suggest understanding that such a proposal doesn’t merely risk spending scarce resources for nothing, it risks spending scarce resources moving further from your own goals.