Automated and Electric Vehicles Bill

Lord Borwick Excerpts

2nd reading (Hansard): House of Lords
Tuesday 20th February 2018 Lords Chamber

[Lord Borwick (Con)]

My Lords, I must first declare my interests in the register as the chairman of the advisory board for the GATEway Project, the Greenwich automated vehicle test project which is running automated pods around the Greenwich peninsula. It is particularly concentrating on the human reactions to automated vehicles. Historically, I was the executive chairman and founder of an engineeringly fascinating but financially disastrous business called Modec, which manufactured and sold 400 pure electric delivery vehicles. We sold them around the world to brave pioneers like UPS, FedEx and Tesco. This was a zero-emission, battery-powered truck where the only emissions of carbon dioxide came from the driver. Alas, the idea came around too early, by at least 15 years, and I had to shut it down, but it did teach me a few things about electric vehicle manufacture—notably, that pioneering is expensive.

I first welcomed this Bill as a good step forward, but when I looked at it in detail, I did not think that it had been fully thought through. It seems to be a Bill that says, “Something must be done!”, but it does not really say what is to be done. Take, for instance, the definitions set out in Clause 8 in Part 2 of the Bill. There is a definition for a “hydrogen refuelling point”, but those points are not mentioned anywhere else other than in the definition, nor does the Bill aim to legislate for them, so why are we attempting to define hydrogen refuelling points in this Bill? In fact, one might argue that Part 2 provides powers only to regulate and does not produce new legislation at all.

I am sure that my noble friend the Minister will agree that it is important to get more electric vehicles into the market, not least because of the enormous improvements to air quality that can be delivered as a result. She will no doubt agree that leadership is better than legislation to achieve this. Would she therefore agree to add what pressure she can to the authorities in this noble House to ensure that electrical charging points are installed in our noble car park at the front of the Palace? Should we not install the very same sort of points that we are contemplating requiring large petrol stations to have?

Yesterday, I had the privilege of taking a test drive in a new Nissan Leaf, a car that will be made in Sunderland very soon. It can be recharged quickly, in about 40 minutes, so you can imagine that during a long journey that will be a chance for the driver to have a welcome cup of tea while the Nissan Leaf is recharging. But in a motorway service station, the restaurant is always some way away from the pumps, for health and safety reasons. Will the regulations contemplated in Part 2 deal with installing the charge points somewhere more convenient to the driver?

My noble friend the Minister has mentioned that the Bill is important to achieve the ambition of making the UK a centre of excellence for electric and autonomous vehicles. I share that ambition, but I am not sure that the Bill as presently drafted and without the regulations helps to achieve it.

I have quite a few comments about Part 1, specifically about the insurance of automated vehicles. I noticed the word “must” in the first line of Clause 1(1). I do not understand the implications of it. Does it make the Secretary of State liable if he fails to do this task? Why do we have “must” when the more usual “may” would do? The words in Clause 1(1)(a) and (b) are different, in that paragraph (a) defines that the vehicle travels on the roads but paragraph (b) does not. I can imagine an agricultural tractor driving on the roads manually, but autonomously only in a field. This would fall into both categories, but would not be an autonomous vehicle in most people’s opinion. Similarly, the self-parking function of a vehicle such as a Nissan Leaf might make it fall into both paragraphs (a) and (b), were it not for the qualification in Clause 7.

What is the meaning of Clause 7(1)(a),

“does not need to be monitored”?

In the Bill, it is a phrase used to define autonomous vehicles and whether they are to be included in the list, but in my opinion its meaning is uncertain. Does this mean level 5 in the worldwide accepted standard for autonomous vehicles, those of the SAE, the Society of Automotive Engineers? “Monitored” means different things to different people and is not defined in the Bill. If the Government are unwilling to accept other organisations’ standards, does it mean actually monitored by a driver with a suitable licence, or that it actually needs someone sitting in the driver seat?

What does “monitored” mean? Does it include operating the vehicle from a connected iPad, as might be done by a disabled driver in their wheelchair? When I take the tube, there is a lever to pull in cases of emergency. Does this not mean that the carriage is monitored by the passenger? Similarly, with an autonomous vehicle, if there is a button to press that stops or overrides vehicles in cases of emergency—I hope that it does have that—does that not therefore mean that the vehicle is constantly monitored for emergencies? If that is the case, surely the interpretations outlined in Clause 7 mean that there will be no vehicles on the list at all until level 5 vehicles are sold.

What does the word “safely” in,

“capable … of safely driving themselves”,

mean? As this will be used only when there is an accident, will someone argue that the vehicle cannot drive safely if it cannot avoid an accident? I have received an email from the Bill team that explains the need by saying, “A requirement for a vehicle to be capable of driving itself safely is not a requirement for it to be incapable of driving itself unsafely”. Could we have a meeting in which the Minister can explain to me slowly—very slowly—the meaning of, “a requirement for it to be incapable of driving itself unsafely”?

There is another “must” in Clause 1(3):

“The Secretary … must publish the list … each time it is revised”.


Is this practical when the Tesla, for example, may have the ability to safely drive itself turned on or off by remote software? When Tesla remotely downloads software, must a new edition of the Secretary’s list be issued? Is my noble friend sure that this is practicable?

One of the biggest costs in the insurance industry comes from ignorance, either of the driver or other road users. One of the advantages of autonomous vehicles is in the number of television or LIDAR cameras that they will carry. This trend is already starting with dash cams, but I would like to ensure that the guilty party in a crash does not feel tempted to delete the evidence from their car cameras. More cameras ought to reduce the cost of insurance.

Finally, I suggest that the regulation-making clauses should be amended. I have discussed this Bill with lawyers who have suggested that these powers are limited to Part 2 and therefore are relevant only to charging points. Similar powers are needed for the autonomous vehicle industry as they are likely to change faster than the electrical charge points. The focus should be on putting in place legislation which is as agile as it can be. This will enable it to develop, adapt and evolve with the technology that it tries to regulate. It could also help to remove obstacles, clarify grey areas and provide short, medium and long-term solutions which help demonstrate that the UK is a centre of excellence for the future development, testing and commercialisation of CAVs.

To summarise, I share the Government’s aim to put the UK at the front of the pack in developing and using these new technologies. The Bill as drafted does not yet help us achieve that ambition, because it merely enables future regulations. I hope that the regulations will help us achieve that ambition. Can my noble friend the Minister give us an indication of when these regulations will be published?

Automated and Electric Vehicles Bill

Lord Borwick Excerpts

Committee: 1st sitting (Hansard): House of Lords
Wednesday 9th May 2018 Lords Chamber

[Lord Hunt of Chesterton (Lab)]

My Lords, I was on the Science and Technology Committee and we discussed automated vehicles. After our session, I met some industrialists—people making and selling cars—in the context of automated vehicles. One of the things it was suggested that the Secretary of State might consider—it would come under Clause 1, referred to earlier—is that people purchasing vehicles, particularly those that are partially or wholly automatic, should understand the properties of the vehicle. There were some examples this year or last year when someone had a blackout and the vehicle took over control and moved them. So it seems that already some of these level 3 properties are not well understood by the people buying the cars. For some people, as I understand it, once you have paid by credit card or hire purchase the car arrives at your front door and off you drive. Even Tesla makes you have 95 minutes of training before you buy and use one of its cars. This is an area covered by subsection (1)(b) that the Secretary of State should be considering very strongly.

[Lord Borwick (Con)]

My Lords, I should first make an unusual declaration of interest: namely, an investment that does not exist at this moment but which will almost certainly be made in the next few days. I will have an equity interest in the Penso group of companies and become its chairman. Penso is a manufacturer of very high-tech carbon fibre parts for the automotive, aerospace and rail industries, and produces the Vito London taxi for Mercedes in Coventry. The investment is likely to complete in the next few days, making the interest declarable as its product is very relevant to the lightweight future of electric cars. I should explain that none of my amendments seeks to confer exclusive benefits on the company and that I am moving them because I believe them all to be in the public interest.

Unfortunately, the grouping of the amendments in today’s debate is slightly unusual and many groups contain amendments that do not naturally fall together. Some of my later amendments overlap with, and propose different ways of achieving the same ends as, the amendments of the noble Baroness, Lady Randerson. I apologise if the Minister has to repeat the same points in different sections.

Although I support the noble Baroness’s Amendment 1, we may yet hear from the Bill team that Amendment 2 is just not the way in which they wish to go with this definition. I must say that I believe that that is a mistake, because, although the Society of Automotive Engineers standards may change and the Government normally like to be in complete control of the definition, the choice here is between a vague definition that could be interpreted in different ways by different lawyers and an international standard developed by the SAE and adopted worldwide. Chinese vehicle producers will adopt the SAE regulations, as will producers all over the world. There seems therefore to be a great deal of merit in sticking to the worldwide standard rather than inventing our own because we believe that our choice of English will be so elegant that we can achieve it.

There are other ways of achieving the definition from those used in the Bill, and I will come to them in my later amendments. However, were the Government to change their mind and support the noble Baroness’s Amendment 2, I would immediately support it as well.

[Lord Berkeley (Lab)]

My Lords, I support the first amendment of the noble Baroness, Lady Randerson. It is important that we keep the scope of the Bill as wide as possible. The noble Lord, Lord Borwick, mentioned manufacturing in China. I suspect that by the time many of these cars and technologies have come on to the market, a very large proportion of the equipment will come from China anyway. There has to be some world standard—I am not sure which; we will come to that later—otherwise we will be in dead trouble. I also share the noble Lord’s concern about Amendment 2.

I was interested in the comments from the noble Lord, Lord Lucas, about turning railways into roads. We heard this before, about 30 years ago.

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[Lord Maxton (Lab)]

My Lords, I too have some difficulty with this because I drive, I must confess, a Skoda. I am told that a brand new Skoda is built to my specifications when I order it, not before. It is not produced on a line but only when I order it and, therefore, each adaptation is my instruction to the manufacturer. Whether or not that is an adaptation I do not know, but we have to bear it in mind when considering this amendment.

[Lord Borwick]

My Lords, while I respect the opinions of the noble Baroness, Lady Randerson, the way that the automotive industry works is through a large number of companies of various sizes, some of which believe they have the only solution that makes a positive change to the industry. They may approach a big car company and try to persuade it that their creation of a level 4 vehicle software is better than that produced by Ford or General Motors. I do not think they will succeed, but they will want to try it out—and that process will involve adapting an existing vehicle. That would be much harder than it is at the present stage if the amendment suggested by the noble Baroness were accepted.

It is a reality of life that the world is filled with brilliant engineers who have their own suggestions. Some of them are nutters and some of them are geniuses, and it is only by trying out their suggestions that you can work out which one is which.

[Lord Maxton]

The noble Lord will remember that, when we were considering this issue in the Science and Technology Committee, it was suggested that one of the first uses of a fully automated vehicle would be in agriculture, with it going up and down a field. A story was told of a van suddenly appearing at the back of a field and the farmer going up to two men and asking, “What are you doing here?”. They said, “We are from Germany, and we are here because the big end on your combine harvester is about to go”.

[Lord Borwick]

The point is well made. It is an immensely complicated industry and, effectively, prohibiting adaptions would send it backwards.

On the issue of maintenance of these vehicles, there is a host of health and safety regulations which should cover many of the points raised. It is indeed extraordinarily dangerous to start dealing with high-voltage DC cables on the inside if you are not trained to do so. However, because of my interest in electrical vehicles in the past, I have gone through the training, the basic lesson of which is to stay as far away from it as you possibly can. It is extraordinarily dangerous, and I entirely support the training of people as proposed by the noble Lord, Lord Tunnicliffe.

[Lord Lucas]

My Lords, if we imagine a future with a lot of autonomous vehicles around, one of the things that such a vehicle needs to do is predict how other autonomous vehicles will react in particular circumstances—that is, if faced with a sudden unexpected obstacle, the priority will be to veer to the left, say. That knowledge can come only on the basis of a shared understanding of the software that each of them has and of the capabilities in terms of awareness of the local picture and the wider picture that are built into the vehicle. To allow those things to be tampered with by back-street garages and amateur electricians seems to me to go against the whole advantage of moving towards autonomy. Therefore I very much support what the noble Lord, Lord Tunnicliffe, is aiming at. I think we need really clear control of the quality of maintenance.

I can see what the noble Baroness, Lady Randerson, is aiming at in removing “or adapted”; we do not allow people to adapt Boeing 747s in a random sort of way. They might do it to trial things and have a bit of their own airspace to wander around in while they are doing it, but we should be really cautious in allowing widespread adaptation. Every adaptation introduces another complication that every other autonomous vehicle would have to be aware of. Adaptation should be confined to test areas and test tracks, and what appears on the public scene should be a well-understood, well-documented vehicle—and not too many different kinds, please.

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Moved by

[Lord Borwick]

4: Clause 1, page 1, line 9, leave out “, in at least some circumstances or situations,”

[Lord Borwick]

My Lords, we have here a portmanteau group of about three different subjects which have in common that they are all proposed by me, but that is about it. I will start with Amendments 4, 5, 6 and 7. These address the alternative to using the SAE definitions that the noble Baroness, Lady Randerson, and I think are probably the right solution to the problem.

The first amendment deals with the phrase,

“in at least some circumstances or situations”.

As has been mentioned, the Science and Technology Committee did a very good study on autonomous vehicles, let down, in my mind, only by the fact that we were not allowed to entitle it “Goodbye, Mr Toad”. This was supported by a large number of people because the phrase encapsulates one of the greatest advantages of autonomous vehicles: bypassing bad driving. In the future automated vehicles will drive better than human beings.

The phrase,

“in at least some circumstances or situations”,

will certainly open discussions as to whether some downright unusual vehicles such as agricultural autonomous vehicles will fall under that description. I fear that in the Secretary of State’s opinion, they will not, and somebody will undertake a judicial review as to whether the Secretary of State was right. The net result will be wealthier lawyers rather than a clear definition.

Similarly, the meaning of the word “safely” is very unclear. One man’s “safely” is another man’s “dangerously”. Putting such ambiguous words into legislation opens up the possibility of somebody’s saying, “That autonomous vehicle was involved in an accident; it therefore cannot have been driving safely. If it was not driving safely, it should not have been on the list, and is therefore not covered by the insurance that it was thought to be covered by”. I hesitate to say that putting in the word “safely” is dangerous, but it opens the possibility of a bunch of litigation which is unnecessary because the clause works without it.

I know that the word “safely” is part of the Government’s attempt to differentiate between what we would call level 3 and levels 4 and 5. It comes from the Government’s determination not to use those terms. If the Government were to change their mind on that, the need for subjective words such as “safely” would disappear.

Amendments 31, 32 and 34 deal with the meanings in Clause 7 of “being controlled” and “driving itself”. The Bill states that,

“a vehicle is ‘driving itself’ if it is operating in a mode in which it is not being controlled, and does not need to be monitored, by an individual”.

There is a lot of uncertainty as to what phrases such as “be monitored” mean. Amendment 34 tries to identify that more clearly. On Amendment 32, there is again some uncertainty as to what “an individual” means. Does it mean an individual who is licensed to drive that vehicle? Does it mean an individual who is capable of driving, with a driving licence, or one who is not drunk or fast asleep? There is a lot of uncertainty in these words. The Minister may say that the wording will be sorted out in the detailed regulations, but it could be changed to deal with such problems at the start.

On Amendment 35, “roads” has not been defined in the Bill and could easily be defined to tie up with the Road Traffic Act 1988 so that a creative lawyer does not come up with an alternative definition for their own benefit. I hope that all the amendments are helpful in clarifying the meaning of these phrases. I beg to move.

[Baroness Randerson]

My Lords, I went through the process of devising amendments with a lean approach to the wording. Once again, the amendments take a more comprehensive approach to the same issue I raised regarding the definitions. I understand the point made earlier by the noble Lord, Lord Borwick, about there being some overlap in the grouping of amendments. That is because this is a highly technical Bill and the aim of the amendments is not always obvious. In this case, the aim is clearly the same as the one I was approaching, and it underlines the point I made when speaking to my first group of amendments: that definitions will be central.

Many years ago, I was a justice of the peace. I sat through many motoring cases at a basic level in the magistrates’ court where clever lawyers spent ages examining the definitions of simple words. There were many cases where people avoided apparently obvious judicial process because of a definition. The Government need to look again at the definitions used in the Bill.

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[Lord Borwick]

My Lords, I thank my noble friend the Minister for her comments. Clearly, a lot of conversations should take place between now and Report, and they should include a wide variety of Peers who have expressed an interest in the Bill. I look forward to those discussions. In the meantime, I beg leave to withdraw the amendment.

Amendment 4 withdrawn.

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I will stop my comments there. I apologise that I cannot stay until the end of the debate this evening, but I will be here for the second day of Committee.

[Lord Borwick]

My Lords, I have been surprised by the Bill and the discussions on it because it is fairly unusual to find circumstances where there is the kind of debate that will happen on the next set of amendments about “must” and “may” regarding what the Government can do. Normally the Government suggest that the wording should be that they “may” do something while Back-Benchers push for it to be that they “must” do something. Here we have entirely the reverse of that problem. Similarly, when my noble friend Lord Lucas proposes that the Government should have the right to regulate on safety standards—I have a similar amendment coming much later—normally it is a matter of the Government wanting to have the powers to regulate and the Back-Benchers suggesting that they should not. Here again we have the reverse of that standard, but this is a new industry and perhaps we have new ways of legislating for it.

The points that my noble friend Lord Lucas and the noble Baroness, Lady Worthington, make are entirely right: we need standards. However, I think so many things are happening with this that the power to make regulations should be wider than just in respect of standards. That is why I have tabled Amendment 30, which will be dealt with towards the end of our debate today. I support my noble friend’s amendment as far as it goes. I think my amendment is slightly better than his but we can deal with that problem later.

[Baroness Sugg]

My Lords, I fully appreciate that we will see fast-moving technological developments in this area in future. With that in mind, I understand the intent behind noble Lords’ amendments on safety criteria and standards. It is going to be critical to ensure that automated vehicles are safe for effective deployment on UK roads. As the noble and gallant Lord, Lord Craig, rightly points out, their safety will also need to be maintained throughout the vehicle’s lifespan, as is the case for conventional vehicles today.

There is a long-established process in place for setting vehicle standards, which we have touched on before. The UNECE’s World Forum for Harmonization of Vehicle Regulations is tasked with creating a uniform system of regulations for vehicle design in order to deliver high levels of vehicle safety and environmental protection and facilitate international trade. These UN regulations, of which there are over 140 in number, contain the provisions for vehicles, their systems, their parts, their equipment related to safety and environmental aspects. So they provide the legal framework, allowing member countries such as the UK to establish harmonised international-level UNECE regulatory instruments concerning motor vehicles and motor vehicle equipment. They include performance-oriented test requirements as well as the administrative procedures. The latter address the type approval of vehicle systems, parts and equipment, the conformity of production and the mutual recognition of the type approvals granted by member countries.

The standards by which automated vehicles will be approved safe for sale and use are still being discussed internationally at this UNECE working group, where the UK plays a leading role. We expect them to follow the way in which conventional vehicles have been judged safe to use. I will certainly look carefully at the words of the noble Lord, Lord Tunnicliffe, to help inform our approach in those negotiations. We work with bodies such as the International Organization of Motor Vehicle Manufacturers, which participates in these discussions in a consultative capacity. We think that this is likely to form the basis of the type approval process which automated vehicles, like conventional vehicles today, must pass to be sold for safe use on UK roads.

Based on international standards and our evolving domestic regulatory programme, we expect it to be very clear which vehicles, including their software, can safely operate. The vehicles approved as safe by type approval will then go on to the list, so that our domestic insurance framework is clear which vehicles need which insurance products. The Clause 1 list of automated vehicles will not be the mechanism by which automated vehicles are regulated in relation to safety and security. That will be governed by future laws and technical standards, which we expect to be developed with the appropriate level of scrutiny and consultation, just as current road traffic laws and vehicle standards are developed.

On the important point raised by the noble Lord, Lord Tunnicliffe, about consultation, these changes to domestic legislation, including road traffic laws and vehicle requirements, will generally undergo public consultation and have impact assessments carried out. They are subject to parliamentary scrutiny when amending legislation is laid in the House. Throughout the development of our policy in this area, we have consulted closely with industry. Given the understandable interest in this new area, we fully expect there to be full consultation when we see the regulations appear for automated vehicles. So I agree with the intention of the noble Lord, Lord Tunnicliffe, to consult on the standards that will be set for automated vehicles. That is something that we plan to do, but I am again afraid that I cannot agree that this Bill, which relates to insurance provision only, is the right place for it.

I fully expect that future regulations for automated vehicles will cover many of the points in Amendment 10, including environmental issues, but we think that legislating in any way further, in the absence of the more detailed knowledge of the ultimate international design standards, risks us regulating ineffectively, potentially creating barriers to the use of this technology in the UK and therefore impeding innovation.

As the new technologies reach the point of market readiness, we will be able to set and define the standards, both internationally at a UNECE level and, depending on the outcome of the international discussions, domestically as part of our ongoing regulatory programme. As I have said, we fully expect this to be subject to full consultation.

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Moved by

[Lord Borwick]

9: Clause 1, page 1, line 17, leave out “must” and insert “may”

[Lord Borwick]

My Lords, as I mentioned a moment ago, in tabling these amendments, I felt that the legislation imposes an unnecessary and potentially damaging duty on the Secretary of State that he or she “must” produce a list. Governments hate being told that they must do something. It is normally a case of taxpayers “must” do something, but rarely Governments.

It seems ironic that Back-Benchers are offering amendments to say the Government “may” do something, but the Government themselves are insisting that they must. What if, through some administrative or IT failure, the Secretary of State did not produce a new list every time there was a single addition? I am assured by the Bill team that the mechanics of this list are such that there will be automatic updates with subsequent publication, and that the DVLA will act on behalf of the Secretary of State to ensure that it is not the imposition I suggest it might be. However, I still believe it important to note that, if lists are produced, they should include the vehicle registration. This is why I propose a detailed new clause in Amendment 12.

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[Baroness Sugg]

My Lords, I am sorry to disappoint my noble friend on further regulatory powers in the Bill. As I said, I would be interested to hear views from noble Lords from across the House on further regulatory powers later but, at this stage, we are just not ready to make further regulation. That is why we have not asked for the powers.

The purpose of the list in Clause 1 is to allow manufacturers, owners of vehicles and insurers to know if the extension of the compulsory motor insurance in this legislation applies to their vehicle. The aim is to provide certainty to the automotive and insurance industries, as well as clarity to the public. As I have said, the list itself is not a mechanism to approve which vehicles are safe to use. This will be determined by future regulation, most likely based on international standards. The list in Clause 1 is simply to inform the insurance industry which vehicles require automated vehicle insurance.

My noble friend Lord Borwick’s Amendment 9, which replaces “must” with “may”, would imply that preparing, updating or publishing this list might be at the Secretary of State’s discretion. We believe it is right that the Bill imposes a duty on the Secretary of State, who “must” ensure that the list, comprising any vehicle that may lawfully be used when driving itself on roads or other public places in Great Britain, is published and kept up to date. If the list is not updated, people may obtain the wrong type of insurance, leading to difficulties for victims in securing compensation quickly and easily. As I said, this aims to provide certainty.

In order for the Bill to deliver the insurance framework that it is intended to—this is after consultation with the insurance industry—it is important to maintain the list as a duty on the Secretary of State. Perhaps this is something we can discuss further before Report.

Amendment 12 concerns the duty of a manufacturer to notify the Secretary of State. I understand my noble friend’s intention but, at this stage, it is not appropriate to legislate in this regard. There are already existing processes in place when registering a vehicle or notifying changes regarding a status of the vehicle, and we are working with the DVLA on how to replicate these processes for automated vehicles. We have yet to complete that work, so we do not feel it is the right time to legislate in this regard. I hope that, given this explanation, my noble friend is able to withdraw his amendment.

[Lord Borwick]

My Lords, I beg leave to withdraw that amendment.

Amendment 9 withdrawn.

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Moved by

[Lord Borwick]

13: Clause 2, page 1, line 22, leave out paragraphs (a) and (b) and insert—
“(a) damage is caused by an automated vehicle when driving itself,(b) the vehicle that caused the damage is insured at the time of the accident, and”

[Lord Borwick]

My Lords, we have reached halfway through the list before us today. This is a discussion about the difference between accidents and damage. I feel that, sometimes, the legislation as drafted moves fluently between the words “accident” and “damage”. I fear that that is open to misinterpretation, as an opportunity, by lawyers in the future.

It is critical that “caused” be defined in this Bill. A lack of a test of cause of an accident or damage to a person or vehicle will lead to years on end of appeals in cases. The Bill therefore has the opportunity to provide for a measure against a reasonable standard. The focus should be on what or who caused the damage, rather than the accident causing the damage. By doing this, the Bill could be a world leader in clarifying such a test, as has never been done before. We must accept that the public are nervous about this new technology, and the Bill should clarify what happens before, during and after an accident. It will clearly demonstrate that we have the citizen at the forefront of our minds.

The problem of leaving “caused” undefined is that, in so many processes, the Ministry of Justice is trying to reduce the amount of litigation. As has been mentioned by the noble Baroness, Lady Randerson, the magistrates’ courts are filled with motoring cases of liability for damage caused by somebody’s unreasonable behaviour. If we are careful with the drafting, we could help reduce that litigation in future. Therefore, I beg to move these amendments.

[Baroness Randerson]

My Lords, I wish to speak to my Amendment 17. I am grateful for the support of the noble Lord, Lord Borwick, on this. The key issue is what sort of standards we can expect from automated vehicles. We are told, as has already been said, to expect far higher standards and few accidents. The estimate is an 80% reduction in the number of road traffic accidents once automated vehicles are fully established. After all, we know as humans that even very good drivers sometimes have a bad day, and we are not all very good drivers, but automated vehicles should always be on the ball. However, undoubtedly there will still be accidents, especially during the lengthy transition period, when some cars have drivers and others do not. There are even worrying tales of some pedestrians, in areas where automated vehicles are being trialled, playing chicken by testing how close you can get to the cars by stepping out in front of them, to see how quickly they will stop.

Legal advice we have received indicates that under the Bill as drafted, the insurer would be liable when an accident happens, even if damage is not caused or the damage caused is not the fault of the automated vehicle. My Amendment 17 would lower the standard by which the automated vehicle is judged to that of a reasonable driver. This, of course, removes the double standard the Bill would create—that an automatic vehicle is always safer than a manually driven car. It would therefore lower the burden on insurers.

I am not entirely sure about the term “reasonable” driver; I wondered whether “competent” might be a better word, but I was assured that “reasonable” is an accepted legal term and would be understood. I have tabled this simply as a probing amendment because we need clarity from the Government. After all, millions of insurance policies will rely on this Bill and the structure it creates. The Government have written the Bill expressly to prepare the insurance market for AVs, so it is vital that we have clarity on how the Government view the system they plan to create.

The amendments proposed by the noble Lord, Lord Borwick, in this group, replace “accident” with “damage”. This is an issue of technical legal terms, on which I would welcome clarification as well. I am very pleased to see that he has tabled his amendments.

[Lord Borwick]

I should perhaps earlier have declared my interest as chairman of the advisory board for the Gateway autonomous vehicle in Greenwich project, which has done a lot of work on the subject that the noble Baroness, Lady Randerson, mentioned—the habit of pedestrians testing autonomous vehicles. They found that in time, that habit reduces, not because the relevant pedestrians are squashed by the autonomous vehicle but because they get bored with the test. They might try it once, as a teenager, but they do not bother to try it again: it is a boring process. Boring a teenager is not something we should use as the basis of a safety standard, but it is a powerful factor in this matter. I very much support the amendments in the names of the noble Baroness, Lady Randerson, and myself.

[Baroness Sugg]

My Lords, my noble friend’s Amendments 13, 14, 15, 16, 18 and 24 seek to clarify the definitions of “damage” and “accident”, terms which are already in common use in road traffic legislation and case law. It may help if I set out how we have intended the provisions in this Bill to work. They are intended to mirror the existing conventional vehicle compulsory third-party insurance framework, found in the Road Traffic Act 1988, for automated vehicles. However, the Bill’s read-across with the Road Traffic Act has to be adjusted at times to allow for the lack of a driver when an automated vehicle operates in automated mode, which means that the Bill makes use of the word “accident” as a way of introducing the word “damage”, which in turn is defined in the Bill in a way that mirrors the meaning of “damage” in the Road Traffic Act 1988. Again, as I said, the aim of the Bill is to provide consistency with conventional vehicles in the 1988 Act.

“Damage” is defined within Clause 2 as,

“death or personal injury, and any damage to property other than … the automated vehicle … goods carried for hire or reward in or on that vehicle or in or on any trailer (whether or not coupled) drawn by it, or … property in the custody, or under the control, of … the insured person … or … the person in charge of the automated vehicle at the time of the accident”.

As I highlighted earlier, the policy intent of the Bill is that it mirror existing processes as closely as possible without making complex legislative changes to the existing framework. I appreciate the challenge from my noble friend in testing the Bill’s wording, but we believe that the task of mirroring the existing processes in the 1988 Act is best done by the wording as it currently stands.

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We absolutely do not want to add to the concern of the legal system and want to make sure that the Bill is as clear as possible, given that many thousands of insurance policies will be based on this framework, as the noble Baroness said. We believe that the language as it stands is the best way to replicate the conventional vehicle in the Road Traffic Act. I hope I have helped to clarify the situation but, again, this may be an issue to discuss further ahead of Report—the exact definitions and how we use them in this Bill. Based on that, I hope that my noble friend feels able to withdraw his amendment.

[Lord Borwick]

I beg leave to withdraw the amendment.

Amendment 13 withdrawn.

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Moved by

[Lord Borwick]

19: Clause 3, page 3, line 3, after “begin” insert “or continue”

[Lord Borwick]

My Lords, Amendment 19 addresses the problem at the back-end of subsection (2), where it says,

“allowing the vehicle to begin driving itself when it was not appropriate to do so”.

The problem may be that it might have been right for the vehicle to start off on a nice sunny day in London, and it then drives to Scotland, where it is snowing, and it is no longer appropriate. However, it was appropriate at the start of the journey, and it would certainly be right for the driver to allow the vehicle to begin driving itself at that time—but not right for him to allow it to continue to drive. That would be a simple change in the wording, which I have put in Amendment 19.

In Amendment 20, I address the question of what “not appropriate” means, when we could use the phrase “avoidable and unreasonable”, which I think is much more in keeping with legal custom than the word “appropriate”, because it can be argued as to what it means. Those are my two amendments in this group, and I leave to the noble Lord, Lord Tunnicliffe, Amendment 21. I beg to move.

[Lord Tunnicliffe]

My Lords, I will speak to my Amendment 21 in this group. The Bill as currently drafted means that the insurer or owner of an automated vehicle is not liable where the event was caused by a person allowing the vehicle to drive itself where it was not appropriate to do so. However, it does not define when it is or is not appropriate to do so. This amendment requires the Government to provide regulatory guidance for when it is and is not appropriate for a person to allow an automated vehicle to drive itself.

It would clearly not be appropriate in some circumstances for vehicles to drive themselves: for example, early automated vehicles might be deemed safe to use only on motorways and not on some urban roads. Another example would be that a software issue might arise so that using the automated function at that point would be inappropriate. Clause 3(2) is not clear enough in its intentions. Does it even apply to fully automated vehicles or bimodal vehicles? We need more clarity on this.

One of the primary purposes of Part 1 is to provide a framework to give insurers, manufacturers and potential users greater clarity, providing confidence and encouraging progress on automated vehicles. However, it is still not clear from the Bill what the Government have in mind about when their use would be appropriate. We are asking for regulations to be brought forward to better define those circumstances, because we cannot afford to have confusion here. People must be clear about where their obligations lie. If we are to see the growth in the industry we all wish for, we do not want to leave this issue hanging over it.

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[Lord Young of Cookham]

I understand that the Law Commission work on the issue that we are debating now is a three-year programme. I am not sighted on the level crossing review, but either I shall write to the noble Lord or, perhaps later on, during one of our debates, we can update the exact timescale of the Law Commission review of the existing legal framework for automated vehicles. Obviously, automated control is not in operation.

[Lord Borwick]

I thank my noble friend the Minister for his comments. I think it would be useful between this stage and Report to talk more about the nature of “continue”. There will still be a duty, either on the vehicle to monitor itself, or on the passenger to monitor it; that person will be aware of conditions changing, and there will undoubtedly be differences as a result of a snowstorm occurring. I think the drafting could use some improvement—I am not sure mine is exactly the right phrasing—but I look forward to discussing it with my noble friend. In the meantime, I beg leave to withdraw the amendment.

Amendment 19 withdrawn.

Automated and Electric Vehicles Bill

Lord Borwick Excerpts

Committee: 1st sitting (Hansard - continued): House of Lords
Wednesday 9th May 2018 Lords Chamber

Moved by

[Lord Borwick]

23: Clause 4, page 3, line 12, leave out paragraph (b) and insert—
“(b) the manufacturer of the automated vehicle (or owner or registered keeper retrofitting or modifying the vehicle to become an automated vehicle) failing to ensure that latest safety-critical software was automatically installed before that vehicle was moved from a parked and deactivated position.”

[Lord Borwick (Con)]

My Lords, as we go through this Bill, it is remarkable how many amendments overlap each other. It was not necessarily apparent at Second Reading, but we have all from our different directions come out with the same answers. One of them is in the update of safety-critical software.

This Bill seems to have taken some time to go through another place and then to arrive here. Since we first heard about it, it has changed its name on various occasions. It has had aviation included and then taken out. During this period—which I have variously heard has been two or five years—things have changed. The Bill is written as if it is the job of the insured person to update the software. That might have been true five years ago, but nowadays the software is updated automatically. We are, after all, talking about an automated vehicle—the software should be updated automatically.

I believe that the drafting, as we have it, of Clause 4(1)(b) should be changed to the wording in Amendment 23. It is perfectly easy to programme the software so that the vehicle will demand itself to be updated and will not move unless it is done. Given that this is safety-critical software, we ought to make certain that this vehicle itself has enough ability to know whether it is up to date. It can easily do that with modern software systems. So making certain that the vehicle updates itself before it moves from wherever it is in a parked and deactivated position will be perfectly easy. Nowadays, with the design of the Tesla vehicle, all the updating is done automatically—sometimes without the knowledge of the owner or driver. It is easy for the manufacturers to do and a much more modern way of looking at it than the drafted wording in this Bill. I beg to move.

[Lord Tunnicliffe (Lab)]

My Lords, I rise to move Amendment 25 in my name and—

--- Later in debate ---

[Lord Lucas (Con)]

My Lords, I entirely agree with my noble friend Lord Borwick that software updates should be the responsibility of the manufacturer. They are capable of updating it, and of making it automatic that it is updated. I agree with the noble Baroness, Lady Randerson, that systems need to be better than they are at the moment. I note that my iPhone issued by this House is automatically updated with software. About two weeks ago it deleted all my telephone contacts and it resists all efforts by all our excellent people in this House to restore it to normality, because Apple takes no responsibility for this, of course. It just produces the update and there is no recourse to make the thing work properly.

In the case of automated vehicles we absolutely need to have recourse to the manufacturers, and they need to know that that is where liability for these things rests. It is their responsibility to make sure that their fleet of vehicles on the roads is up to date and functioning as expected. This reflects back into other aspects of the Bill that we have already discussed, as to who should be allowed to make modifications and how the whole fleet of autonomous vehicles should communicate with each other.

I am also happy with Amendment 25; it is an excellent thing. I would only point out in the drafting of Amendment 28 that it refers to “public roads” whereas the Bill refers to “public spaces”. With reference to a conversation I had earlier with the noble Earl, Lord Lytton, that presumably includes the airspace above public spaces, so the Bill includes your future Amazon drone wandering along six feet above the pavement to drop your parcel over your gate. I see nothing in the Bill that excludes airborne vehicles—or indeed waterborne vehicles—so I presume that both are included in that definition of public spaces. I do not know which definition of public spaces is being referred to. The ones I can find in legislation are pretty vague and not really related to this subject, but I would assume that at the same time as thinking we are dealing with road vehicles, we are also dealing with ones that could be airborne—at least within reasonable reach of the ground.

[Lord Borwick]

My Lords, I think I rather agree with the noble Lord, Lord Berkeley, about Amendment 28, tabled by the noble Lord, Lord Tunnicliffe, being better than my Amendment 23. It is better because the point about manufacturers going bust had not occurred to me—so putting it into the passive is a much better way of doing it.

Amendment 25 seems to be approaching a sort of strict liability basis, with the automated vehicle’s insurer responsible even if that vehicle was not responsible in any way for the accident. I refer him to the accident that was reported a couple of days ago with a Waymo vehicle in which another car went into it. It was absolutely not the fault of the automated vehicle; it was hit by a manually controlled car. In that case it would seem to be particularly unfair that the insurer of the automated car had to pay out and then recover from somebody else. That was an entirely innocent case where the automated vehicle was totally not responsible for the accident.

A lot of this will come out in due course as we learn more. It is a problem at this stage that we have to legislate to get the insurance right in an industry that is developing.

[The Parliamentary Under-Secretary of State, Department for Transport (Baroness Sugg) (Con)]

My Lords, the provisions in the Bill will ensure that victims of an accident caused by an automated vehicle that is driving itself will be covered by the compulsory insurance in place on the vehicle. It is the intent that the victims of such accidents will get quick and appropriate compensation.

In Amendments 23 and 28 my noble friend Lord Borwick and the noble Lord, Lord Tunnicliffe, raise the important issue of safety-critical updates to vehicles. It is not the function of the Bill to provide software standards or requirements for automated vehicles. The Bill provides an insurance framework so that victims have quick access to compensation in line with existing practices, and is just one element of a wider regulatory programme to ensure that people and businesses in this country can benefit from the safe introduction of automated vehicles.

The purpose of Clause 4 is to deal with the relationship between the insurer and the insured person in certain circumstances. This addresses the point of the noble Baroness, Lady Randerson. It exists specifically to deal with the insurer’s freedom to exclude liability in the small number of potential situations where the owner needs to act to install a safety-critical software update and knowingly chooses not to install it, or the owner makes unauthorised software alterations, thus putting themselves and others in harm’s way. The clause is designed specifically to deal with that. It mirrors the situation for the compulsory insurance of conventional vehicles, where a driver would not be protected if they drove a vehicle that they knew was unsafe or not roadworthy.

--- Later in debate ---

On software updates, we believe that it is too soon to legislate in these areas, and we do not believe that this Bill is the right place for it. However, I reassure noble Lords that the conversation is ongoing at an international level, because we are all aware that we do not yet have a solution to it and we want to make sure that we set standards in the right place. On liability, we believe that the provisions in the Bill already provide for the policy intent behind Amendment 25. Based on that, I hope that my noble friend will be able to withdraw his amendment.

[Lord Borwick]

My Lords, I beg leave to withdraw the amendment.

Amendment 23 withdrawn.

--- Later in debate ---

[Lord Lucas]

My Lords, I beg to move Amendment 26, which has at its heart the flow of data between a driver and the insurer—but, more particularly, between an automated vehicle and the insurer. It suggests that the insurer should have the right to require data flows to be made in ways that are specified by them to support the contract for insurance. I am particularly thinking of data that might flow at the time of an accident so that the insurer can capture the full dataset at that point rather than risking it being destroyed, perhaps by a later fire or some other consequence of the accident. But we might also get a situation in which insurance flexes with the state and use of the vehicle. To go back to an aspect of my earlier Amendment 10, data flows are an important part of how we consider our relationship with automated vehicles.

[Lord Borwick]

My Lords, Amendment 27 is a probing amendment, triggered when I first read this Bill, which happened at about the same time as the very first fatal accident in America from a Tesla vehicle, when it was it was speculated in the press that Tesla would not release the data from the vehicle because it had proprietary value to Tesla. In fact, as I understand it, Tesla released the data in due course. However, I could imagine circumstances in which the owner or manufacturer of an automated vehicle believed that the less which was found out about this accident, the better for them.

One of the greatest advantages to the insurance industry of the automated vehicles is the enormous quantity of data that will be available from them. Not only will there be the product of six or more cameras facing every single direction but all the other information picked up about speeds can and will be stored in the vehicle as it goes by. Maybe the industry would be grateful if the Minister could confirm that to delete such data would be the offence of perverting the course of justice. However, in the meantime I wanted to propose the amendment.

Amendment 30, the next one in this group, is on the question of regulations, which has already been touched on in earlier debates about standards. However, I believe that the range of aspects of automated vehicles that we have discussed this evening is very great, and there is clearly a lack of knowledge on the part of noble Lords such as myself, not just about the sheer detail of this but about the industry and what is coming on. So many different things are happening, and each of them is an outstanding opportunity for the country. We need a legislative background that can cope with completely new circumstances, not only prohibiting things that are brand new and thoroughly bad but permitting things which are brand new and have not been invented yet.

On the suggestion that we can revert to new primary legislation, given the number of years it has taken to develop this legislation and the constant pressure on legislative time in both Houses, it would be wise for the Government to take regulatory powers to come up with new regulations to deal with new matters. Therefore, these limited new regulatory powers are proposed in Amendment 30.

[Baroness Randerson]

My Lords, I take this opportunity to ask the noble Lord, Lord Lucas, for a little more information about his intention with regard to this amendment on transmission of data. One can see advantages to that flow of data, and one knows that it would naturally take place, because technically it can take place. However, there are huge issues about privacy. I am not entirely sure that I would want—to grasp an example from the air—information to be in someone else’s hands about the fact that I go swimming every week, so that suddenly a department store starts trying to sell me swimsuits every day of the week. I do not want that unnecessary invasion of my privacy. There could be very much more sensitive issues. I could be visiting a hospital and wanting to keep my medical condition private—that kind of thing. There have to be rules about what this data is used for, how it is kept, and so on. Is it the Minister’s view that current legislation on data and privacy going through this House would cover that sort of issue, or will we need other legislation to cover it? Does the noble Lord, Lord Lucas, envisage a sort of situation akin to the black box that some drivers use now to reassure their insurance company that they are driving safely and within speed limits, and so on, which, in return, keeps their insurance premiums down? I am interested in that point.

Finally, I will make a comment about Amendment 30. I am not usually keen on giving the Government delegated powers but there are some sensible limits on this here. I understand that we are envisaging a future; we cannot predict every requirement accurately and we cannot wait around on every occasion for primary legislation—so, as far as that goes, it seems a sensible proposal to me.

Automated and Electric Vehicles Bill

Lord Borwick Excerpts

Committee: 2nd sitting (Hansard - continued): House of Lords
Thursday 17th May 2018 Lords Chamber

[Baroness Randerson]

This group of amendments relates once again to the provision of charging points. Amendment 53 relates specifically to a situation I came across in my local area. A developer had built a car park associated with a shopping centre and had probably received a grant to put in a charging point. About two years later, they decided that, to reconfigure the car park, they would take out the charging point. There will always be a group of people who find a way round these things. Amendment 53 is designed to ensure that we look ahead and work to alleviate the problems that such people might cause us.

Amendment 71 is a further attempt to future-proof. That means that buildings built in the future will either need charging points to be built in or, as suggested by the similar Amendment 76, ducting should be put in even if you do not go the whole hog and put charging points there from the start. Nowadays, we expect all our houses—all our buildings, whatever they are—to have electricity and mains drainage. Very frequently, planning authorities require a property, whether it is for employment purposes or residential—to have car parking spaces. My amendment suggests that we should simply take that one step further and use the planning regulations to ensure that, in future, houses and any other kind of buildings are built with an anticipation that electric car drivers will live there, or use the building, and therefore need to be provided for. I beg to move.

[Lord Borwick (Con)]

My Lords, I shall put Amendment 54 into context by mentioning the reasons for this Bill. The first half is to get Great Britain into the front row of one of the most exciting brand-new industries in the world, although the department seems determined to make sure that the Bill addresses insurance only. However, this half, on charging points, is trying to help solve one of the serious problems of our cities: air pollution. People are dying out there. People are suffering with every breath of air they take, their damaged lungs strangling them.

I should declare that for 12 years, ending some time ago, I was a trustee of the British Lung Foundation, and I am presently a trustee of the Royal Brompton and Harefield Hospital charity. The hospital is doing great work treating patients crippled by air pollution. These patients are predominantly poor people—people who live beside roads and in dense cities—and their under-researched diseases need more attention. We know some of the causes, including the PM2.5 particles that go right into the lungs and probably even into the brains of sufferers. The consumers know the situation, as is shown in the graph distributed by the noble Baroness, Lady Worthington. I would have preferred to see the graph separate hybrids from electric vehicles, as there are a host of mild hybrids that are certainly better than nothing but not nearly as good as a pure electric vehicle.

The message is clear: in the last year consumers have stopped buying diesels and increased their purchase of petrol cars. Why not electric? Because of the absence of rapid charging points. We do not even have a rapid charging point on the Parliamentary Estate. We should be ashamed of that fact. I know we are working hard to correct it, but the complexity of the rules of heritage and the planning permission for the yellow lines all have to be dealt with. I would rather install it first and sort out the problems later, which is why I would be a rotten choice to be put in charge of it.

[Baroness Randerson]

To be fair to the Parliamentary Estate, there are two fast charging points in the underground car park at the other end of the Building. There is not one in the Lords, but there is one in the other place.

[Lord Borwick]

I thank the noble Baroness for that. I was told that there were two charging points at the other end but not rapid charging points.

[Baroness Randerson]

They are fast.

[Lord Borwick]

The distinction between rapid and fast may be in the eye of the tortoise but is terribly important. There is a lot of difference between charging points and rapid charging points. The table distributed by that doughty fighter for clean air, Stephanie Jarvis of TfL, shows that the number of rapid chargers installed on borough highways in London, “as part of TfL network”—whatever that means—is nil: absolutely none at all. To tease and adapt the witty words and tortured French accent of my excellent and noble friend Lord Young, I think that the score for the department is “nul points”.

--- Later in debate ---

[Lord Campbell-Savours]

My Lords, I think I heard everything that the noble Baroness, Lady Worthington, said when she set out the various levels of equipment and the capacity of each level to charge. I am sure she will know the answer to this but I do not, and I am sure that the public outside who might follow our debate do not know the answer. When commercial operators apply to fit this equipment, who is to determine the capacity of the equipment that they are going to fit? If it is left to the market, those in the market might say, “I’m not going to pay £40,000 for a rapid charger. I’m going to put in a slower charger that might take three hours. I can still make as much profit as I want out of that facility”. However, that might not serve the public interest. It might be that the public interest is served only when a rapid charger, or a series of rapid chargers, is put into a location. What is the framework within which these decisions will be taken? I wonder that because they cannot be taken by the market, and there must be some intervention by a public authority in taking them.

[Lord Borwick]

My Lords, I shall speak to Amendment 65. It was painfully obvious when dedicated spaces were introduced for disabled drivers that those spaces should be nearest to the supermarket. Yet, unfortunately, this had to be spelt out in regulation. Sometimes, things that are blindingly obvious to noble Lords escape the attention of other people.

I fear that the same may be true of electric rapid charging points, which is why I proposed my amendment. If the Minister can assure me that the department already has this power I will be happy to withdraw it, but if, as I fear, it does not, the Minister should accept the amendment. It is always possible that the noble Lord, Lord Campbell-Savours, is entirely correct and we shall see entire fields full of rapid charging spots, so the location does not matter so much. But until that stage—and particularly at the beginning—the location of rapid charging points relative to other amenities could be important.

[Lord Mawson (CB)]

Listening to the debate I find it really interesting, but I certainly would not claim to be an expert. I can easily imagine circumstances in which we end up with many diverse charging points across the country, and not enough people buying cars to use them. I have seen many examples in other areas of government doing things and pushing forward proposals, but with disconnects on the ground.

Having a 17 year-old, one thing that I have discovered recently is the cost of insurance for that age group. We need some joined-up thinking in that respect. We live in a rural area and my son has quite an old petrol car, but the insurance for him is £1,857—a great deal of money. If we are to get the next generation of young people buying electric cars and helping us to move this agenda forward, we may need some joined-up thinking between that amount of money being invested in insurance companies and the need to trigger more purchases of electric cars, with incentives to that generation to own a better, cleaner car, which would work for them and also begin to trigger the economy. I suspect that there are opportunities in all this, amid the problems that the younger generation face—but we need more joined-up thinking to ensure that we do not have lots of power points that are not used.