Strict liability debate in Scottish Parliament

As I’ve only had a work lunchtime to put this together, it’s not been red penned for hilarious grammatical/spelling errors (and IE8 has no spellcheck). I’ll sort that at some point…

Yesterday (30 October), Alison Johnstone started a members’ debate on the catchily-named motion S4M-07934, all about strict liability and whether it would be a grand thing to have in Scotland. I talked about strict liability here (there’s a fun bit about a tiger), but in short it means that in the event of a collision on the roads, the more vulnerable road user gets an automatic headstart when it comes to sorting out civil compensation. There are often limits to how much the weaker party can be found liable, so in the Netherlands a car driver’s insurance will always pay out at least 50% of damages to a cyclist, and 100% damages to a child, regardless of fault.

Criminal proceedings are utterly unaffected.

This is important because of the severity of the damage. If I am severely injured in a collision with a car whilst crossing the road on foot, to the extent that I either don’t remember what happened or cannot communicate, then the chances of my family getting any form of financial support for my ongoing care are pretty negligible. Even if a lawyer did manage to scrape together a case against the driver, it generally takes months for the funds to come through.

Strict liability for road users is often thought of as the mature approach to dealing with this issue, and the UK is one of only five European countries that doesn’t operate something similar.

Important stuff. Here’s a summary of the transcript of yesterday’s debate, reduced to bulletted soundbites and with my comments in italics (it might help to keep things interesting if you imagine the University Challenge voice reading out the names. Also, I’ve edited out my childish giggles every time someone refers to someone else as a ‘member’). I’ve done my best to be fair with the summaries, but it’s quite hard to make some politicians sound intelligent and balanced…

Debate begins at 17:02

Alison Johnstone (Lothian): A good introduction to the issues at stake, mentioning the role of strict liability as part of a wider group of steps to improve the uptake of cycling and walking

  • We know that people do not cycle because they do not feel safe
  • Strict liability is not a magic remedy, but…an important part of the jigsaw
  • A national newspaper proclaimed that Scotland is the deadliest place to go for a walk

Sandra White (Glasgow Kelvin): Facepalm moment, which I’ll just summarise as ‘but cyclists on the pavements annoy pedestrians!’

Alison Johnstone (Lothian): Pats Sandra on the head and reminds her that strict liability protects pedestrians from cyclists. Goes on a bit about civil and criminal difference, innocent until proven guilty, etc.

  • In Europe, only Malta, Ireland, Romania, Cyprus and the UK have no form of strict or presumed liability in road accidents involving vulnerable road users.

Maureen Watt (Aberdeen South and North Kincardine): Asks about evidence of correlation between strict liability laws and safer highways for cyclists. This starts of a theme running through the rest of the debate, which no-one properly shuts off. I’ll try: strict liability does not and will not make the roads safer. It is the final financial protection for vulnerable road users when all the other measures to keep them safe fail. As a country that has generally crap infrastructure, education and enforcement in place to protect folk on the roads, strict liability is vital to ensure that if the worst happens, financial devastation and the emotional trauma of a courtroom is not piled on top of the victim and their family.

Alison Johnstone (Lothian): A fairly weak response.

Rob Gibson (Caithness, Sutherland and Ross): Talks a lot about Denmark, and about how we need more investigation into strict liability. Nothing profound, and generally seems to be ‘if we can’t make everything perfect, let’s just keep talking about it for ages and not actually start doing anything’.

  • Copenhagen has a culture of innovation in relation to cycling, which I would like to see here.

Graeme Pearson (South Scotland): Active transport is good, and lots of people have died or been injured recently. Bit about funding. Strong opening, and then tails off and falls down the same hole as Maureen Watt in wanting evidence that strict liability reduces injuries.

  • We are dealing with a serious public safety issue.
  • Like Maureen Watt, I searched the material provided to find a link between the introduction of new legislation and a fall in the number of accidents and injuries; unfortunately, no such link is entirely obvious

Margaret Mitchell (Central Scotland): Suggests that strict liability would lead to cyclists hurling themselves in front of streams of traffic, because they would be compensated afterwards. Clearly has a somewhat peculiar interpretation of the average human’s instincts of self preservation.

  • the number of fatalities and injuries to pedestrians and cyclists on our roads is unacceptable
  • In fact, it could encourage irresponsible cyclists—despite the hierarchy of road users, cyclists are perfectly capable of causing a multiple pile-up—to be even more irresponsible, secure in the knowledge that the presumption of fault will lie with the driver.

AJ: Alison Johnstone is hereafter AJ, to try and bring a sports-style feel to the commentary. Anyway, she said something sensible and tautalogical about cyclists being at fault if cyclists were at fault.

Margaret (again): Goes on. And on. Using an argument so full of holes that I’m going to take a liberty not available to AJ and just ignore it. Moving on.

Kevin Stewart (Aberdeen Central): Some cyclists are irresponsible. Some drivers are irresponsible. Mentions the Audrey Fyfe case, and then deviates onto some stuff about criminal sentencing that isn’t relevant to strict liability.

  • If somebody killed two folk with a shotgun, they would be unlikely ever to get a shotgun licence again, so why would a driver who had killed somebody get a driving licence again?

Patrick Harvie (Glasgow): Reminds Kevin that criminal sentencing is a completely different issue. Kevin responds that ‘we can[not] divorce the civil aspects from the criminal aspects’. Actually, Kev, we can. That’s why they’re separate things. Anyway.

Kezia Dugdale (Lothian): Sensible stuff from Dugdale, portraying herself as someone who wants to cycle more, but is currently afraid of anything other than two offroad routes. Also mentions how much cycling-related communication she gets from constituents – all that effort clearly makes a difference. Keith Brown failed to respond to the Niceway Code comment.

  • Frankly, it is people like me who need to be persuaded that cycling is a safe activity
  • Cycling is probably the single biggest issue in my inbox and is paralleled only by equal marriage in terms of the strength of feeling and regularity of contributions that I receive.
  • There has also been some legitimate criticism of the Government’s plans around the nice way code campaign, on which I would like to hear Keith Brown’s comments tonight.

Jim Eadier (Edinburgh Southern): Give the man a big cigar! Eadier makes a solid attack from the wing on the guff started by Maureen Watt. Talks quite a bit, but crucially points out that looking for links between casualty figures and strict liability isn’t relevant. Probably the best speech so far.

  • Stricter liability may be a matter concerning the civil law, but I stress that it is not an abstract or arcane subject, because it concerns the safety of our fellow citizens
  • However, the fact remains that as part of a series of measures, such as 20mph zones in residential areas and more awareness training, … strict liability legislation has helped to initiate a step change in the culture towards cycling and cyclists in the countries that have adopted it.
  • [Spokes] believe that the single most essential measure [to increasing the number of cyclists] is that road conditions are, and feel, safe and welcoming for making everyday trips to work, shops, school and leisure by bike.

Caludia Beamish (South Scotland): A pretty meandering speech that says a lot without really communicating anything. In favour of increasing cycling, in favour of lighting and helmets, building cycle lanes can be hard, etc. Kind of in favour of strict liability, as ‘responsible cyclists’ deserve protection.

  • [France has had] a stricter liability law … since 1986 and I understand that, since its introduction, fatalities and injuries have decreased greatly.
  • Cyclists have a right to be [on the roads] —their right is equal to that of other road users. They are vulnerable. Responsible cyclists deserve the protection that stricter liability might provide. I hope that my party will consider that as a possibility, although there is a lot more assessment to be done.

Christine Grahame (Midlothian South, Tweeddale and Lauderdale): Lots of legal wordsmithing. It was quite clear what kind of liability was being debated, so I’m not sure why Christine felt the need to mess around with exactly what to call it at this early stage in proceedings. Bit of back-and-forth between her and AJ when Christine asked whether strict liability would apply between the drivers of a small car and a big car – again, a slightly cynical derail. Finally makes a decent point about whether more cyclists would get third party insurance if strict liability came in; it’s a shame everybody had already tuned out, because that would have been worthy of furthe discussion.

  • If we extend it to a collision between a cyclist and a pedestrian, the presumption of liability would be on the cyclist. Why not go further? Why not extend it to a collision between a Mini and a minibus, a minibus and a Megabus, or a panda car and a pantechnicon? What principle is in operation?

For those without access to Christine’s thesaurus, a pantechnicon is a horse drawn removal van.

Patrick Harvie (Glasgow): Good description of cycling in Glasgow that I can back up as realistic. Remarks that there are far more instances of aggressive driving than poor cycling, and that the former carries much more risk of damage than the latter. Refutes Margaret Mitchell’s belief that strict liability would see cyclists deliberately hurling themselves unde buses. Good stuff.

  • I did not want to cycle in Glasgow because I saw the state of the roads…; the lamentable state of cycling provision, such as the appallingly inadequate cycle lanes, …; and the behaviour of some motorists.
  • Far more often than seeing a cyclist shooting a red light, cycling on a pavement or cycling at night without lights, I see motorists trying to get through lights before or just after they have changed—trying to take the last little opportunity to shoot through lights—cutting each other up, or cutting up cyclists. My personal favourite is motorists’ failure to indicate.
  • The change would do one crucial thing, which is one of the most important things that we can do to make cycling safer in Scotland: it would get more cyclists out on the roads. It would normalise cycling and make it impossible for any driver to regard cyclists as an inconvenient and unnecessary intrusion into their private use of road space.

John Lamont (Ettrick, Roxburgh and Berwickshire): Talks a lot of sense, with bonus points for twice fighting off Christine Grahame’s attempted interventions.

  • The debate is absolutely not about cyclists against motorists … but about how the law should protect vulnerable road users and how we can best encourage cycling.
  • Strict liability would not result in motorists becoming automatically liable; nor would it result in drivers being sent to jail. It would apply only to civil cases and would establish only a presumption that could be disproved in court, which is why I prefer to use the term presumed liability.
  • I fail to see how anyone who accepts that cyclists have an equal right to be on our roads cannot support the introduction of legal safeguards that address the imbalance [that drivers have the potential cause more damage to others than cyclists or pedestrians]. Indeed, careful and observant motorists following the highway code have nothing to fear from the introduction of presumed liability.

Graeme Dey (Angus South): Effectively says that ‘some cyclists behave badly, so we shouldn’t introduce any measures to protect all vulnerable road users’. Concerned that drivers would be penalised for dangerous cycling. Doesn’t really understand what’s being talked about, clearly.

  • My most striking and direct personal experience of cyclists has been here in Edinburgh, generally in close proximity to the Parliament, and that experience reaffirms my belief that [the idea of strict liability] ought to be rejected.
  • …let us be clear: those taking to the roads on bikes are also of very mixed ability and attitude, so to introduce a presumption of liability against motorists involved in incidents with cyclists is … unjustifiable

AJ and Graeme then chat a bit about the difference between strict liability and drivers being found permanently at fault for every single collision, which appears to be his understanding. Graeme then descends into a drivers vs cyclists mentality that has so far been avoided.

Sarah Boyack (Lothian): Talks a lot, and attempts to summarise the rest of the debate, but doesn’t quite manage to be clear and concise enough to have an effect, in my eyes. Acknowledges that strict libaility tends to polarise opinions and calls for more research and stakeholder involvement to ‘take tonight’s debate forward’. Tries to have a good stab at the Niceway Code, but runs out of time.

  • [Cyclists riding of pavements are a reflection of] the anxiety that led to the petition coming in front of us—the anxiety of cyclists who are worried about their safety on the roads.
  • It would be good if the minister could look at research from other countries and consider the impact of different legal environments and frameworks. I am not suggesting that the minister says yes or no today; I ask him to think about how we take the debate forward and consider the issue.

Keith Brown (Minister for Transport and Veterans), responds to the debate

  • …although I am supportive of nearly all the statements that are made in the motion, I cannot support it in its current form, given the lack of robust evidence that stricter liability could have positive benefits for vulnerable road users. However, there will continue to be debate on the issue, in which we will continue to participate.

Says it all really. Keith doesn’t like spending money on cycling – we knew that from before, and better people than I have written about it. Twists and slopes and generally avoids taking any responsbility whatsoever – in a debate about central decisions on law, a good chunk of Keith’s response is about how local authorities should be doing more to improve infrastructure. At least avoids mentioning the Niceway Code, so clearly the almost universal condemnation of that effort has struck home. A comment that really irked me was in a response to Kezia Dugdale; Keith stated that safety was subjective (hmm), and that because he had a mate that felt pretty safe cycling along a road that Kezia found intimidating, then that road must be OK. Eh?

Anyway, in terms of next steps, Keith says that he would support further debate on the basis of ‘robust data’, presumably linking strict liability to reductions in casualties (although he doesn’t actually specify what he wants robust data on – will a chart of my home electricity usage from the last 15 months be enough to secure future debate, we wonder?). As several others mentioned during the debate, this evidence won’t be found – I say again, strict liability protects people from the after effects of collisions, it doesn’t prevent them happening in the first place.

With my statistics hat on, I reckon the data that should be put before Brown next is therefore the average payout and time-to-payout for injured vulnerable road users after a collision. That is the metric that is relevant to strict liability.

However, for now, this seems dead in the water…

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