Automated Vehicles Bill [ Lords ] (Second sitting)

Bill Esterson Excerpts

Committee stage
Tuesday 19th March 2024 Public Bill Committees

[Gavin Newlands]

Thank you, Sir George. You say “in the middle”—I had barely started my remarks. [Laughter.] Thankfully, despite the rude interruption of Question Time and lunch, I have been able to add to them, including some quotes from the Cabinet Secretary for Transport. I thank my Transport Committee colleague, the hon. Member for Easington, for his help with that.

I was talking about working across borders, which undoubtedly makes good sense on issues like this, but as it stands clause 50 is not working across borders. It will mean government by diktat and by statutory instrument, rather than the democratic procedures that have been in place for nearly a quarter of a century.

I mentioned earlier that the UK Government have moved the goalposts on this issue. The policy scoping notes clearly state:

“Any future proposals to amend existing primary legislation will be subject to consultation with representative organisations before being laid before both Houses of Parliament (and/or the Senedd Cymru and Scottish Parliament, insofar as the regulations amend any act of the Senedd Cymru or the Scottish Parliament respectively).”

But the UK Government’s delegated powers memorandum states:

“The affirmative procedure will ensure that Parliament (as well as the Scottish Parliament and Senedd Cymru, where Scottish or Welsh legislation is amended) can closely scrutinise any regulations changing or clarifying how existing primary legislation applies to the user-in-charge.”

Obviously, there is no provision for scrutiny by the Scottish Parliament in the final Bill, but, as I said, the prior commitment means that it is not the SNP or rogue Scottish Government officials pushing the envelope and insisting on consultation and consent; rather, it is the UK Government reneging on their commitment to do so.

The Cabinet Secretary for Transport made it clear at the Scottish Parliament’s Net Zero, Energy and Transport Committee just this morning, as I have alluded to a number of times, that there are

“things that relate to offences under devolved legislation and offences that would be part of devolved areas, these are the areas that the provision would allow the UK Government to legislate on or make provision for in the future… we think it’s a genuine issue of concern.”

I would welcome the Minister addressing those concerns and committing to meeting the Cabinet Secretary for Transport at Holyrood to ensure that the broad co-operation on the rest of the Bill is continued in the wording of clause 50. When he responds, perhaps he could list the Acts that relate to transport in Scotland that might be impacted.

Amendment 9 would ensure that the term “relevant enactment” cannot apply to

“an instrument made under an Act of the Scottish Parliament”,

“an Act or Measure of Senedd Cymru”

or

“an instrument made under an Act or Measure of Senedd Cymru”.

In doing so, it removes the Secretary of State’s power to unilaterally amend Scottish primary legislation in respect of automated vehicles. Amendment 7 would require the Secretary of State to obtain the consent of devolved Governments before exercising the clause 50 power in relation to devolved legislation. Amendment 8 would extend the clause 50 power to Ministers of the devolved Administrations.

I will not bore the Committee by reading them out, but our amendments seek to remove this Henry VIII power entirely as it relates to Scottish or Welsh legislation, to add a requirement to seek a legislative consent motion from Holyrood or the Senedd, or to extend the same powers to the appropriate Scottish and Welsh Ministers. If this Government truly were looking to work in co-operation, they surely should not have a problem agreeing to look at this issue, but thus far they have shown no real inclination or desire to compromise on this fundamental point. I urge the Minister to accept the amendments in my name—or one of them, at least —and respect devolution and the elected Governments of Scotland and Wales and our judgment in making laws that best suit our countries.

[Bill Esterson (Sefton Central) (Lab)]

It is a real delight to see you in the Chair this afternoon, Sir George. I rise briefly to support what the hon. Member for Paisley and Renfrewshire North said about the important role of the devolved Administrations. He referenced the role of the Scottish Law Commission—and indeed the Law Commissions from all the nations of the United Kingdom —and its important work in producing this framework for the introduction of automated vehicles. He is quite right that the principle of consent on devolved competencies applies in this legislation, and I am very pleased that my hon. Friend the Member for Easington read out the relevant reference in the explanatory notes. The Government would not normally legislate on matters of devolved competence without that consent, and for that reason I think that the three amendments tabled by hon. Member for Paisley and Renfrewshire North deserve support. We will vote with him if he chooses to go for a Division.

[The Parliamentary Under-Secretary of State for Transport (Anthony Browne)]

Before I come to the amendments, I want to set out some of the background of clause 50 and why we think it is significant. This is all about the user in charge, which is a new legal concept that did not exist when existing traffic laws were drafted. Those laws come in a wide variety of formats and language, from traffic regulation orders to motorway regulations. The power in clause 50 can be used to clarify what is and is not the responsibility of the user in charge in particular enactments—what the user in charge, when a vehicle is in self-driving mode, is responsible for. That is vital to support clear public understanding of the division of responsibility and to make adjustments based on experiences from real-world deployments.

Clause 50 will also allow us to respond to technological changes; as self-driving technology improves, it may become appropriate to shift greater responsibility away from the user in charge. For example, in future, vehicles may be better placed to assess their own roadworthiness than the human in the driving seat. Crucially, the clause does not provide carte blanche for the Government to alter traffic legislation generally. It can only affect the scope of the responsibility of the user in charge, and it is limited to them.

That brings me to the amendments tabled by the hon. Member for Paisley and Renfrewshire North. I want to say at the outset that I completely respect devolution and the role of the devolved Administrations, and there is nothing in this legislation that is meant to change that balance at all. As he knows, there have been quite a lot of talks at the official level. I have had an exchange of letters with the Cabinet Secretary for Transport and, to answer the hon. Gentleman’s question, I am very happy to meet and discuss a way forward—hopefully there will be one.

The Government consider the user-in-charge immunity to be a reserved matter. That is because the Bill gets it authority from the Road Traffic Act 1988, and that is expressly reserved under the Scotland Act 1998. Clause 50 will predominantly affect the application of reserved traffic offences. There is a limited range of devolved legislation in this area, and the immunity will have only minor incidental impact on that legislation—it is very incidental.

More generally, public understanding and confidence will be key to realising the benefits of self-driving vehicles. It is vital that we have clarity and consistency across Great Britain about how these vehicles can be used and what individual responsibilities there are. I am interested to know the position of the hon. Member for Paisley and Renfrewshire North and the Scottish Government on that. We think that the first recommendation of the Scottish Law Commission, and of the Law Commission for England and Wales, was that as the public would not be able to understand different and partial immunities based on distinctions between devolved and reserved laws in different parts of the country, there should be the same rules for user-in-charge immunity when crossing the border from Scotland to England, so that drivers do not unintentionally break a law as they do so.

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My new clause would ensure that those voices have a legal right to be heard directly by the Minister, putting across their side of things. In particular, it would ensure that the devolved Administrations and their relevant agencies have that voice too—a voice that unfortunately seems to have been ignored by the UK Government in clause 50.

[Bill Esterson]

I agree with the hon. Member for Paisley and Renfrewshire North—or maybe it was his daughter who I was agreeing with; I was not entirely clear. I wish her a happy 14th birthday.

New clause 3, which I am speaking to, calls for the establishment of an advisory council. A Division on a very similar amendment in the Lords was narrowly lost. I accept the point made by the hon. Member about the benefits of the additional reference to the devolved Administrations in his new clause.

New clause 3 is largely about why this legislation matters so much and why it is so important that through it we are as successful as possible in predicting the impact of the new technology’s evolution. In doing that, it is essential that the benefits are enjoyed by all in society, not just by a few; the hon. Member made that point in passing. When I say all, I mean workers, those with disabilities and older people. We must minimise the risk of liability in the event of incidents that necessitate insurance claims, and we must ensure that safety is delivered as widely as possible. That is why an advisory council would be such a valuable addition to the legislation.

We saw for generations what happened with deindustrialisation in this country. That came at different times across the country, but very many people were affected and continue to be affected—their areas, their communities and their life chances were badly impacted. Prizes to be won through this legislation include avoiding the damage done by deindustrialisation while ensuring that all groups impacted by this exciting new technology benefit from it and that we gain the maximum and widest-possible economic benefits from it. Having an advisory council that has the breadth of experience to give the Government support on all those areas is highly desirable.

In the Lords, the Government said that such a council was not necessary. The Minister has reiterated today that consultation will be important to him, and I do not doubt that, but there are advantages to formalising the set-up of an advisory council so that particular interests do not come to the fore. We want innovation and enterprise; we want to attract the investment that ensures, as the Society of Motor Manufacturers and Traders estimates, the creation of 342,000 jobs—I think I quoted a slightly lower figure earlier—12,250 of which will be in automotive manufacturing. We need to ensure that those jobs are delivered, that we have an upskilled workforce and that new jobs are created, not lost, through this change in industry, to replace the jobs that will go.

We need to ensure that disability groups are embedded from the start. This is an issue across the wider Transport brief. We said on Second Reading that it was regrettable that we had not seen a transport Bill to address some of these wider points. With this new clause, we have an opportunity to address some of the challenges in what is an exciting and potentially significant development over the coming years.

The stakeholders all make the point that wider statutory engagement is desirable. The TUC states that job transition is its primary concern, and that embedding the principle of creating good new jobs is really important at this stage, before we know exactly how the technology will develop. Having that principle in the Bill is very important.

Much of the detail will come out in secondary legislation, so ensuring that the trade unions have a seat at the table and a voice from the start is really important. The point about disability and accessibility is made by Guide Dogs. The point about transport more widely is made by Transport for All.

I hope that the Minister will give this point the attention it deserves in his response. He and his colleagues have noted how the technology is developing and will continue to change. I put it to him that there is no reason to limit the consultation with the trade unions or the other groups that are set out in our new clause 3, and indeed in SNP new clause 1. The Minister says he is keen to engage with the trade unions and is looking forward to an early meeting. A very good way of showing his intent would be to agree to new clause 3 this afternoon.

Nine sub-groups are listed in subsection (2) of new clause 3—consumer groups; organisations representing drivers; road safety experts; relevant businesses; vehicle insurance providers and providers of delivery and public transport services; trade unions; the police and other emergency services; highway authorities; groups representing people with disabilities; and groups representing other road users, including pedestrians and cyclists. Which of those nine sub-groups would the Minister want to leave out of consultation? If he agrees that all of them should be included, why not put it in the Bill? Why not set up an advisory council as part of primary legislation?

[Anthony Browne]

I am really glad that the hon. Member for Paisley and Renfrewshire North was joking about his daughter’s birthday, because I would hate to be a source of big disappointment on her birthday. I know how important 14th birthdays are. He made an interesting point. How come, in all the Bill Committees that he has been to, people agree about what they want but disagree on the actual amendments? We want as much accessibility as possible for self-driving cars as well—we share that ambition—and we want as much safety as well, but we have our own ways that we have worked out are the best ways to get that. That is what we stick to. We make amendments when we think there is something that is genuinely better.

As a newish Member to this House, I make another observation. I have only been here while my party has been in government. It has struck me how many Opposition amendments basically tell the Government what to do. I understand that that comes from a frustration that they are not in government. That can change at elections—hopefully it will not, but that does happen. If you want to tell the Government what to do, you need to win an election.

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[Bill Esterson]

I beg to move, That the clause be read a Second time.

In the previous debate, the Minister was saying that the Opposition should just accept that they are not here to make legislation.

[Anthony Browne]

That was not what I was saying at all.

[Bill Esterson]

I paraphrase—that was a potential interpretation of it. I would love him to clarify that this is not what he said.

[Anthony Browne]

To clarify, in case there was any misunderstanding of what I was saying, it is clearly the role of the Opposition to try to influence and make legislation, just as it is the Government’s. My observation was merely that a lot of Opposition amendments, and this stretches across all different debates, are basically instructions to Government of what they think Government should do, as opposed to legislation for people to control behaviours outside of Government. That is born out of frustration by the fact that they are not in government, and it is completely understandable, but there is another solution to that.

[Bill Esterson]

Funny he should mention that! Call the date and we will be ready, if he can persuade the Prime Minister—2 May is still available. I was quite grateful for the answer because it showed a desire to have an early general election.

[Anthony Browne]

That wasn’t what I said!

[Bill Esterson]

Anyway, I will turn to new clause 5. In the Automated and Electric Vehicles Act 2018, there was a commitment on liability to the protection of victims and their ability to make a claim, if they are the victim of an incident with a self-driving vehicle. New clause 5 addresses the problem in the Act that, before they know whether they can prove liability, the question arises of whether they will have to prove it. If there is an incident in which somebody is hurt or killed, the question arises of whether it will automatically be accepted that an automated vehicle is designated as having been in self-driving mode. That is a potential problem if insurers insist that such proof be presented.

That point was made in 2017 by the then Transport Minister, the right hon. Member for South Holland and The Deepings (Sir John Hayes), on Second Reading of the 2018 Act. He referred to the potential for claims, where there is a lack of clarity on whether a vehicle was in self-driving mode, to be

“time-consuming and expensive, undermining the quick and easy access to compensation that is a cornerstone of our insurance system. Not tackling this problem risks jeopardising consumer protection and undermining the automotive industry’s competitiveness.”—[Official Report, 23 October 2017; Vol. 630, c. 73.]

I think the right hon. Gentleman made a very good point, and we share his concern that I have just reiterated, which has yet to be addressed. I would be very grateful if the Minister could respond on how potential victims will be able to make claims in a timely fashion, and overcome the risk that they will have to prove that the vehicle was in self-driving mode.

The Association of Personal Injury Lawyers has raised a number of circumstances where that problem could arise, and I am sure that it has raised them with the Minister as well. I would be grateful if he could address the issue of a pedestrian, who would normally be insured, being unaware of their legal situation, perhaps because they are too young or too badly injured. In section 2 of the 2018 Act, people injured by an AV when it is driving are allowed to make a claim against the driver’s insurance, but to benefit from that provision, injured people will need to know and prove that an automated feature was engaged when the incident occurred. That is the nub of the problem that the APIL has identified: it could be very difficult or downright impossible for someone to do that. That could lead to additional investigations, requiring complex legal claims and delaying the paying out of compensation, which undermines the whole point of section 2 of the 2018 Act.

Lord Liddle pointed out in the Lords that the Department does not appear to have made its mind up about how long it takes a driver to take back control in a UIC vehicle. There is also the whole issue around transition, which my hon. Friend the Member for Easington touched on in relation to one of the earlier amendments. I would be grateful if the Minister would address that issue and set out exactly how he sees the Government ensuring that there is certainty for potential victims, given the uncertainty that his predecessor, the right hon. Member for South Holland and The Deepings, identified seven years ago and that the Association of Personal Injury Lawyers has drawn to our attention.

[Anthony Browne]

I thank the shadow Minister for his comments, because it is obviously important to make sure that there is clear liability in this area, and it is set out in the Bill.

I will just come back to the point about the Automated and Electric Vehicles Act 2018, which has been mentioned and which is the source of some of the questioning. There is a distinction between causation and fault, and in the UK people tend to claim insurance on the basis of fault, like somebody has done something wrong, and not on the basis of causation, or what actually happened.

The reason for the 2018 Act is that it was thought, quite rightly, that if somebody is in an accident with an automated vehicle, it is very difficult for them to prove whether the software and all the stuff that goes on was at fault, or that something was going wrong. Therefore, the 2018 Act created a strict liability when a vehicle is in self-driving mode. When a vehicle is not in self-driving mode and there is a human driving it, there is exactly the same liability as we have at the moment. There is no intention in any of the legislation to change that. Regarding the point that the shadow Minister makes, which was a valid one, we clearly do not want individual victims to have to try to work out whether a vehicle was in self-driving mode or not. They will claim in the normal way against the insurer of the vehicle.

If the vehicle was in self-driving mode and that was at fault, the insurer of the vehicle can claim the insurance from the authorised self-driving entity. That will be a settlement between the insurance companies; it will not affect the victim’s ability to claim. The system is designed in such a way as to make sure that the victim gets any payment due to them as quickly as possible.

That is also why we have the sharing of information, which we discussed earlier, because it is really important for the various insurance companies to know whether, at the time of the accident, the vehicle was in self-driving mode or not, in order to ascertain whether the liability should be with the ASDE or with the driver. If they do not know what mode the vehicle was in, they cannot do that.

If this new clause were added to the Bill, we would have the unusual situation whereby a car with a self-driving function that might never be used is subject to strict liability insurance claims and a car that does not have a self-driving function is subject to the normal liabilities that we have at the moment. We would have the bizarre situation that a pedestrian could be better off if they were in an accident with a car with a self-driving function that is never used than if they were in an accident with a conventionally driven car. It would be very difficult to explain that sort of discrepancy and give any rational justification for it. Again, this is one of those things where we agree with the ambition, but we think that it is already covered.

[Bill Esterson]

Two questions follow from what the Minister says. First, how does somebody prove that a vehicle was in self-driving mode where it has the option to switch between self-driving and user in charge? Secondly, what is its definition during transition? I accept that those are difficult questions, but I would be grateful for the Minister’s answers. There is a related point about data access. What are his proposals to ensure that data is available from the operator and from the vehicle, notwithstanding the fact that they are not collecting personal information and that this process is purely about data that is relevant to an incident?

[Anthony Browne]

The point I was trying to make is that the victim—the pedestrian, or whoever it is—does not have to prove whether the vehicle was in self-driving mode or not. It will be for the insurer of the car and the insurer of the ASDE to work that out. If the car was in self-driving mode, then the ASDE would be liable, and it would claim against its insurance. If the car was not in self-driving mode, it would be the normal driver’s insurance, because there is still the legal requirement for the car to be insured like it is at the moment. The victim would not need to show what mode it was in.

On the hon. Member’s point about data, the Bill provides for the Secretary of State to set out regulations for data-sharing requirements, as we discussed earlier. That is for accident investigation, improvement of performance and so on, but also for insurance claims. It gives the Secretary of State the powers to specify which data should be shared with whom and under what circumstances, so long as it does not breach the data protection confidentiality of individuals. It is all covered in the Bill.

[Bill Esterson]

I am grateful to the Minister for confirming that the vehicle does not have to be in self-driving mode, and that a potential victim does not have to prove whether it was. I am concerned about why we have people related to the insurance industry advising that this is yet to be cleared up. A similar point came up in the House of Lords. This remains a bit of a concern.

[Anthony Browne]

This is a complex and technical issue. As part of my extended engagement, I mentioned earlier that I have a roundtable coming up with the insurance industry about AVs and electric vehicles. I will happily write to the shadow Minister afterwards to clarify these points in black and white, and whether there are any issues resulting from that.

[The Chair]

Order. The hon. Gentleman cannot intervene on an intervention. Bill Esterson is speaking.

[Bill Esterson]

I think my hon. Friend the Member for Easington wishes to intervene.

[Grahame Morris]

I was wondering about scenarios that the Minister could seek some clarification on in his roundtable meeting next week. It is my understanding that if an uninsured driver driving a conventional vehicle was in a collision with another conventional vehicle, the Motor Insurers’ Bureau would be tasked by the Government to make the payout in respect of the uninsured driver. What would happen if an uninsured driver—I am directing this question to my hon. Friend, of course—was in a collision with an automated vehicle? Is that something the Minister might be able to answer?

[Bill Esterson]

I am grateful to my hon. Friend for raising that because the Motor Insurers’ Bureau raised exactly that concern with me. I would love the Minister to answer it.

[Anthony Browne]

I am very happy to answer. This issue has indeed been raised with me and the Department, and I can confirm that the Department is in negotiations with the Motor Insurers’ Bureau about exactly this point. We have a difference of opinion with the Motor Insurers’ Bureau because it thinks this requires an amendment, and that is why it has been lobbying about this legislation. We think there are ways that we can cover this point without primary legislation, so it does not actually need an amendment. It is one of those examples, as raised by the hon. Member for Paisley and Renfrewshire North, where we agree on the outcome—we agree that we need to close this loophole—but we think we can do it in a different way, without primary legislation.

[Bill Esterson]

I am grateful for those answers. I suggest that this might be something we can debate a little further on Report. The Minister will perhaps be in a slightly different position then, with some of the information he has had from the industry, as will I. That might be a good place to take this next. As he rightly says, we are setting the framework with this legislation. There are elements of it that are very difficult to pin down now, and we have to do the best we can. Report stage is a further opportunity.

With those thoughts, I beg to ask leave to withdraw the clause.

Clause, by leave, withdrawn.

[Anthony Browne]

On a point of order, Sir George. I thank everyone involved in the preparations for the Committee—the Clerks; the officials, who have been working incredibly hard; and you, Sir George—and I thank all the members of the Committee for spending their time here going through the Bill. It is delightful to have something on which there is consensus across the House on the broad direction of travel, if not on every single item.

[Bill Esterson]

Further to that point of order, Sir George. I thank you and Mr Vickers for chairing our sessions. I think this Committee is possibly unique in the history of Parliament in that the Chairs, between them, have possibly spoken for longer than Members in moving through the agenda—in a thoroughly appropriate way, I hasten to add. It is a pleasure to have my predecessor in the Chair for a Committee such as this; I took about half of my constituency from you in 2010, Sir George.

I add my thanks to the Clerks, the officials and the Law Commission for their work and for getting us to this stage. We have set the framework for an important future piece of legislation. Birthday wishes to the 14-year-old daughter of the hon. Member for Paisley and Renfrewshire North, too. I thank all Members for their contributions today and on Second Reading, and I look forward to Report.

[Gavin Newlands]

Further to that point of order, Sir George. On behalf of my daughter and me, I thank all members of the Committee and the Minister. I look forward to engaging with him further on clause 50 as we move through this process—that is my hope, anyway. I thank all hon. Members; Mr Vickers and you, Sir George, for your chairship; the Clerks for their assistance in drafting amendments; Hansard, and the Doorkeepers. I also thank the hon. Member for Easington for allowing me to move a section of my speech on clause 50 beyond the 11.25 am barrier this morning. With that consensus and positivity, which is unusual in these quarters of the House, I will conclude.