Scots MSPs support cycle safety as Minister keeps open 'presumed liability' debate

The debate on 'presumed liability' rules (also known as 'stricter liability' or 'no fault liability') was led by Green MSP Alison Johnstone, who is also co-convenor of Holyrood's Cross-Party Group on Cycling.

It builds on law firm Cycle Law Scotland's powerful Road Share campaign for presumed liability rules, which is supported by CTC Scotland, Pedal on Parliament, Lothian Spokes and several others involved in promoting walking and cycling in Scotland.

These rules create a presumption that drivers (or, in practise, their insurance companies) who collide with pedestrians or cyclists would be liable to pay compensation for their resulting injuries, unless they could show that the injured person was at fault.

It is clearly unjust that injured pedestrians and cyclists have to provide evidence that the driver was liable for their injuries, when the injuries themselves may mean they are unable to recall what happened.  The result is that very seriously injured crash victims, or their families, often face years of legal bills, medical bills and stress, on top of the injuries themselves.

Chris Oliver, Chairman, CTC Scotland

In a blog written ahead of the debate, CTC Scotland Chairman Chris Oliver, an orthopedic surgeon, sets out the case for 'presumed liability' rules. Further details are provided in a CTC campaigns briefing on 'compensation for injured cyclists'.

The motion for the debate cited the "unacceptably high" numbers of injuries and fatalities to pedestrians and cyclists. It noted the strong support for the introduction of 'presumed liability rules, pointing out that most other European countries have presumed liability rules in some form.

During the debate, MSPs from across the political spectrum strongly backed calls for a range of measures to improve cyclists' safety, regardless of whether or not they supported the 'presumed liability' principle.

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.

Transport Minister Keith Brown MSP, SNP

Responding to the debate, SNP's Transport Minister Keith Brown MSP said he remained unconvinced of the case for presumed liability, claiming that a Scottish Government review had found no clear evidence of a clear link between countries with presumed liability rules and improved cyclists' safety.  He compared cycle safety trends between 1990 and 2010 in Scotland, Germany and Italy, but omitted to mention that Italy and Germany had introduced presumed liability many decades earlier, hence this was irrelevant to casualty trends since 1990.

Nonetheless, despite his previous rejection of the case for presumed liability, Keith Brown ended his speech by agreeing to keep debate on the issue open.

Commenting on the debate, CTC Scotland Chair Chris Oliver said:

"It is clearly unjust that injured pedestrians and cyclists have to provide evidence that the driver was liable for their injuries, when the injuries themselves may mean they are unable to recall what happened.  The result is that very seriously injured crash victims, or their families, often face years of legal bills, medical bills and stress, on top of the injuries themselves.

"I regret that the Minister felt unable to support this argument, and for bringing Scotland's laws into line with most of the rest of Europe.  However at least he has kept open the door to dialogue. I am also greatly heartened by the clear cross-party support for wider action to improve cyclists' safety.

"A big 'thank you' then to Cycle Law Scotland for leading this campaign, and to Alison Johnstone and everyone who spoke in favour of the principle of 'presumed liability' in this debate. The issue isn't going to go away."

What the MSPs said

[After describing how he used to cycle regularly as a Manchester student but had been afraid to do so since...] However, this summer I took the plunge and swapped my bus pass for a bike and I could not have been happier since."

"[Presumed liability] 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.

Patrick Harvie MSP, Green

Unsurprisingly, the two Green Party speakers Alison Johnstone and Patrick Harvie were both supportive of presumed liability in principle, while recognising the need for further debate on the detail.

SNP members were divided: some rejecting presumed liability, one unequivocally supporting it, one urging that the proposal should be kept open, while most (including the minister, Keith Brown) rejected the idea, while generally remaining supportive of improved cycle safety.

The basic proposition behind stricter liability is a fair and sound principle on which to proceed. It is the legal norm in many European countries including Denmark, France and the Netherlands, all of which have a record on cycling that we in Scotland would wish to emulate.

Jim Eadie MSP, SNP

Jim Eadie was the SNP member who clearly supported presumed liability.  His party colleague Rob Gibson joined Labour MSPs in supporting continued debate on presumed liability, as well as advocating wider action to improve cyclists' safety.   By contrast, a brief intervention from SNP member Sandra White merely talked about cyclists on pavements, while another SNP intervention (from Maureen Watt MSP) questioned the lack of clear evidence of a safety benefit from presumed liability.  A speech from Christine Graham raised a number of supposed legal difficulties, while Graham Dey was at pains to recognise that more needed to be done for cyclists' safety. Kevin Stewart noted that most of the people who had contacted him were actually raising issues to do with criminal law, particularly the recent woefully inadequate sentence for the driver who killed CTC member Audrey Fyfe.  Stewart didn't take a position on presumed liability but instead called for the Scottish Parliament to be given control over criminal law on road traffic matters.

In virtually every collision between a car and vulnerable road user, it will be the pedestrian or the cyclist who is injured. It is therefore reasonable to place a greater burden of proof on the motorist. 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.

John Lamont MSP, Conservative

The 2 Conservative speakers were similarly divided. One of them, Margaret Mitchell, supported cycle safety improvements but opposed presumed liability using simplistic/predictable arguments about how it would send all the wrong signals to irresponsible cyclists. However another Conservative, John Lamont, made an excellent speech in favour of presumed liability, as well as 20mph speed limits, better traffic law enforcement and high-quality cycle provision.

The 4 Labour speakers all supported more debate, while making positive noises about the need to improve cyclists' safety.  Two of them, Graham Pearson and Kezia Dugdale, noted that the lack of a clear consensus even among cycling advocates about the value of presumed liability.

There were no LibDem speakers.

I pay tribute to all the cycling campaigners who regularly contact MSPs on various issues relating to the cycling agenda. 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.

Kezia Dugdale MSP, Labour

Apart from Margaret Mitchell (Con) and the brief intervention from Sandra White (SNP), the other MSPs who rejected presumed liability did so without resorting to simplistic stereotypes about cyclists' behaviour. CTC believes that cyclists and drivers alike should respect other people's safety and the rules of the road, and we do not support law-breaking by cyclists.  However cyclists are far more likely to be the victims than the cause of collisions, and need far greater legal protection if we are to tackle the fears that deter people from cycling.

Overall, 14 MSPs (including the minister Keith Brown) made speeches in the debate, with two others (both SNP - one of whom would clearly have wanted to speak) making brief interventions only.  Although no vote was taken, the breakdown of opinions expressed was as follows:

* For (whilst recognising the need for further debate): Alison Johnstone (Green), Jim Eadie (SNP), Patrick Harvie (Green), John Lamont (Con).

* More debate needed / no clear position: Rob Gibson (SNP), Kevin Stewart (SNP), Graham Pearson (Lab), Kezia Dugdale, (Lab), Claudia Hamilton Beamish (Lab), Sarah Boyak (Lab).

*Against: Sandra White and Maureen Watt (SNP, brief interventions only), Margaret Mitchell (Con), Christine Graham (SNP), Graham Dey (SNP), Keith Brown (Transport Minister, SNP).