Interesting - if depressing - link, thanks for posting it. Does anyone know whether legislation in the Scottish Parliament also has to go through this enabling stage - and could therefore be indefinitely delayed as was the case with S7 of the RTA 1974?
I note in that article the reference to the Heavy Commercial Vehicles (Controls and Regulations) Act 1973. Highly unusually, this act does not seem to be available on http://www.legislation.gov.uk. However, I did manage to locate this more or less contemporaneous article in a trade journal about the provisions of the act:
"Heavy commercial vehicle" ... [means] any vehicle, whether mechanically propelled or not, which is constructed or adapted for the carriage of goods, and has an unladen weight exceeding 3 tons.
Section 2 of the Act adds a new section to the Road Traffic Act 1972. This new section, which is numbered Section 36A, reads:—
"A person who parks a heavy commercial vehicle wholly or partly (a) on the verge of a road; or (b) on the land situated between two carriageways and which is not a footway; or (c) on a footway; shall be guilty of an offence." There is a maximum penalty of a £50 fine for this offence.
Later in this Section, however, it says a person shall not be convicted of this offence if he proves to the satisfaction of the court that the vehicle was parked in accordance with permission given by a constable in uniform; or that it was parked for the purpose of saving life.
It is also a defence to prove that the vehicle was parked on a verge or a footway (not the centre reservation in this instance) to load or unload which could not have been done satisfactorily elsewhere and that the vehicle was not left unattended at any time while parked.
Section 72 of the Highway Act 1835 makes it an offence to drive on the footway and as recently as 1950 in McArthur v Jack (SC(J) 29) it was held that even though the driving lasted for only a few seconds the offence was complete. How does one reconcile the law contained in this old Act with the new law which gives tacit permission to park on the footpath in certain circumstances? It would seem that one could park on the footpath under the one Act and commit an offence by driving on the footpath under the other. One can only hope that the courts will take the commonsense view and forget the 1835 Act when dealing with cases of this kind.
If advantage is to be taken of the defence that the vehicle was parked for
loading or unloading then it must be proved that the vehicle was not left unattended at any time while it was so parked. If, for example, the driver was carrying cartons into some premises and for short periods no one was left with the lorry then this defence would be of no avail. The Act does not specify that the driver must remain in attendance while the vehicle is parked on a verge or footway for loading or onloading; it requires that the vehicle is "not left unattended". A driver's mate, shop assistant, warehouseman or any other person standing beside the vehicle would ensure that the vehicle was "not left unattended".
One would assume that the reason for requiring someone in attendance with the parked vehicle was to ensure that no danger was caused and that no person was injured. One could imagine the attendant guiding a blind person around the vehicle but there is nothing in the Act to require any such safety precautions to be carried out. The vehicle just must not be left unattended.
The act does appear to be a little bit clearer about the loading & unloading exemption (as highlighted above). Why those few extra words could not be included in the Scottish bill is not clear. It's almost as if nobody bothered to review existing legislation when drawing up the current bill... (Given that they managed to draw up the previous bill without actually having any authority to pass it, perhaps such a lack of rigour is not wholly a surprise.)
While it's nice that this law exists, I suspect that one would not have to look very hard to find numerous examples of it being broken every working day around the UK.
Note that the fifth paragraph of the extract posted above highlights the legislative mess created by having two laws, one of which makes driving on the footway illegal (even for just a few seconds, as established in McArthur v Jack 1950), while the other allows parking on the footway in certain circumstances - which requires the commission of an offence under the first law.
Carlton Reid, as ever, has written a well-constructed blog post on the issue (which has, predictably and depressingly, received the inevitable gammon-faced comment).
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