Do cyclists have to use cycle tracks regardless of their poor design or state of disrepair? It has been on-going saga since 1998 — see our timeline. But what does the law state and what’s the problem?
Back in 2011 in the Dail chamber, Leo Varadkar, the then minister for transport, said: “This is an easy one. The deputy asks if there are plans to remove the mandatory use requirement for cycle lanes. The removal of the requirement to use cycle lanes where provided is one of the undertakings in the national cycle policy framework.”
Minister Varadkar added: “Where a cycle lane is provided, cyclists are required to use it, even if it is damaged or in a bad condition or inappropriate to use it. The government agrees that the regulation should be changed and it will be.”
He changed the law in 2012 by approving secondary legislation called the Road Traffic (Traffic and Parking) (Amendment) (No. 2) Regulations 2012 (S.I. 332 of 2012). The section of this on mandatory use states:
4) A pedal cycle shall be driven on a cycle track where—
(a) a cycle track is provided on a road, a portion of a road, or an area at the entrance to which traffic sign number RUS 021 (pedestrianised street or area) is provided,
(b) a cycle track is a contra-flow cycle track where traffic sign number RUS 059 is provided and pedal cycles shall only be driven in a contra-flow direction on such track.
The explanatory note of the regulations states that the regulations included “new and amended requirements for use of cycle tracks (only use of contraflow cycle track and of any cycle track in pedestrianised area is mandatory)”. In other words: cycle tracks only have to be used when they are contraflow cycle tracks (on one-way streets) and any cycle track in a pedestrianised area.
All seemed to be going well until last year we reported how the department had revised its interpretation of the regulations. This revisionism seems to have happened in 2015.
Cycling campaigners have disagreed with the department’s revised interpretation of the regulations which seems to have happened in 2015, and a number of legal experts who have spoken off-the-record have said that the interpretation does not follow the way legislation is written.
The department has said that the explanatory note does not have a legal standing, but the problem with this that the explanatory note is not alone in contradicting the department — there’s Varadkar’s Dail statement, statements from the Department of Transport press office when the law was being changed, and, this week, even Shane Ross’s administration has admitted that the intent was to revoke mandatory use. There’s now clear ministerial and even Governmental intent to back the explanatory note.
Last year, a Department of Transport spokesman said: “To set it out as clearly as possible, paragraph 4(a) should be read as ‘A pedal cycle shall be driven on a cycle track where a cycle track is provided on a road. A pedal cycle shall be driven on a cycle track where a cycle track is provided on a portion of a road. A pedal cycle shall be driven on a cycle track where a cycle track is provided on an area at the entrance to which traffic sign number RUS 021 (pedestrianised street or area) is provided’ It is not to be read as ‘A pedal cycle shall be driven on a cycle track where traffic sign number RUS 021 (pedestrianised street or area) is provided’.”
Section 4(a) covers all types of pedestrianised streets and areas and section 4(b) covers contra-flow cycle tracks. But if 4(a) was written, as the department claims, to cover all normal streets and pedestrianised streets, why would these two be bundled while contra-flow cycle track get a second clause? It doesn’t make sense.
This is what some have described as the missing comma problem. The theory goes as follows: All would have been fine if section 4(a) of the regulations had included another comma, something like this one we’ve inserted in red and bolded:
a cycle track is provided on a road, a portion of a road, or an area at the entrance, to which traffic sign number RUS 021 (pedestrianised street or area) is provided,
This pedanticness about section 4(a) missing a comma might work if there was a no clear ministerial intent, but that’s not the case. Judges, the DPP and Gardai should be reading the law with ministerial intent in mind.
It’s also not the only issue with the pedanticness of the comma. If the legislation was design to make mandatory use apply on all cycle tracks, it would have just said this without a number of clauses stating where it applies — this is what the 1997 regulations did and then the 1998 regulations updated them to allow for cycle lanes blocked or where the cyclist wants to leave the cycle lane to make a right hand turn.
What is the Department of Transport hiding? Why won’t they release the records they say claim supports their claims?