Automated and Electric Vehicles Bill (Fifth sitting)

Oliver Letwin Excerpts

Committee Debate: 5th sitting: House of Commons
Tuesday 14th November 2017 Public Bill Committees

[Karl Turner]

Clause 7 sets out when a car is deemed to be driving itself, or in automated mode, but there is no mention of what happens if the vehicle is designed or manufactured in a faulty way or is hacked due to a failure by the manufacturer to install adequate protective software.

How would our amendment improve the Bill? While we all welcome the opportunities that the new technology will bring, we also have to recognise that it will bring risk. A lot of those risks will be around the software used, and they therefore may be harder to pick up than in a conventional vehicle. We all know the risks of hacking in computer systems. We have had experience in this House relatively recently of a cyber-attack—a hacking event—on Members’ emails. That experience is commonplace in workplaces across the country. When hacking and cyber-crime can result in serious consequences, we need to be extremely cautious.

We have the opportunity to put safeguards into the Bill now to give protections in this area, rather than doing that later down the line. The Minister has repeated constantly that this is a modest Bill that is merely a skeleton and that regulation will have to come as technology improves. Indeed, given the uptake of these vehicles and the number of them being purchased, action will clearly be required where the technology changes, but there is a real risk in not legislating now, when we have the opportunity to ensure the safety of these things.

Our amendment would definitely tighten up this area of the Bill by setting out when an automated vehicle is capable of driving itself safely. That would give the driver protection with regards to liability, if it was proved that there was a manufacturer’s fault or if the vehicle had been hacked. I do not intend to press the amendment to a vote; its purpose is to start a discussion about this area, in particular the hacking element. The issue of cyber-security and vehicles being hacked has been discussed previously, in the predecessor to this Committee. I have read the Hansard report of those discussions and there was some very detailed debate, but it is important to look at it again now. I stand to be corrected, but the Minister previously said he would come back with potential changes in this area. However, I think he simply wrote to members of the previous Bill Committee.

New clause 18 would do exactly what we intend it to do. We now have the opportunity, and I hope that the Government will listen carefully.

[Sir Oliver Letwin (West Dorset) (Con)]

I want to talk about clause 7(1)(b), which deals with the interpretation of what it is for a vehicle to be insured. That takes us back to the discussion we had in the Committee’s previous sittings. I am grateful to the Minister for providing access to his officials in the interim. I am satisfied that the issues I was raising are handled in the Bill, but want to set out how I now understand that to be the case, so that the Minister can give us an assurance that I have got this right and we know for the future that that is how the Bill is meant to work. It is a little sad that we have to do quite a lot of interpretative work to understand how the Bill is working, but I understand that that is caused by the fact that it is trying to piggyback on the Road Traffic Act 1988.

It turns out that clause 7(1)(b) is critical to the whole structure, because it defines a vehicle as being insured if there is a policy in force in relation to the use of it. Whereas one might think, under clause 2(1)(b), that when the Bill says the vehicle is “insured” at the time of the accident, it means the vehicle is insured at the time of the accident—indeed, I fell into the trap of thinking that that is what clause 2(1)(b) meant, because that is what it says—in fact clause 2(1)(b) has to be read in the context of clause 7(1)(b). Therefore, it is not actually the vehicle that is insured; it is the person who is, or may be—but maybe isn’t—the driver whose policy is the relevant policy and is actually insured to drive that vehicle. That is what I now understand clause 2(1)(b), in the light of clause 7(1)(b), to mean.

What clause 2(1)(b) is actually trying to say is that, as long as there is a person in the vehicle who, one way or another, is insured to drive the vehicle, then the insurer of that person is liable for the accident, even if the vehicle is driving itself. It follows from that that even if the driver, who is not driving at the time when the vehicle is driving itself, is not the owner but is insured to drive the vehicle on a policy that gives him insurance to drive other cars, it is also the case that the insurer of that person, not of the owner or the vehicle but of the person who is the driver—or would have been, if he was driving—is the insurer who is liable for the crash caused by the vehicle when it is driving itself. If I have at last understood all that correctly, it follows that the problems that I and several Committee members foresaw, about things such as transition, disappear, given that it is always the same insurer who is liable both when the car is in automated mode and when the car is being driven, because it is the insurer of the driver—or crypto-driver—regardless of whether he is driving or the car is driving itself.

[Mr Hayes]

That is the central and salient point. I think this is where the misunderstanding took place between us in the earlier sitting. That there is a single insurer, as my right hon. Friend now acknowledges, is one of the points covered in my letter, along with a couple of others, on which he will no doubt speak. He is right that that changes the assumption about the transition, as he describes it.

[Sir Oliver Letwin]

I am delighted to hear the Minister confirm that and that I have eventually managed to understand this. If it is a single insurer, those problems disappear, which is very good news.

[Clive Efford]

I understand that better myself now, but do I understand what the right hon. Gentleman is saying? The person in the vehicle is the one insured and, in the first instance, it is their insurance that would pay out. If the vehicle is found to be at fault, whether it is automated or under that person’s control, they would pay out in the first instance, and subsequently the discussion we had on the previous clause would apply, where there is a sorting out of who is actually responsible—the manufacturer, the software designer, the driver of the vehicle or of the other vehicle. That will be sorted out following the initial payment from the driver of the vehicle that is found at fault.

[Sir Oliver Letwin]

I was following the hon. Gentleman until the very last words he spoke, because I think he means payment from the insurer of the driver, rather than from the driver.

[Clive Efford]

Yes.

[Sir Oliver Letwin]

In that case, my answer is yes. As I understand it now, I think, the insurer who has insured the person who is sitting in the driving seat will pay the third party who has been damaged in the accident, regardless of whether the person sitting in the driving seat is driving the car or the car is driving itself. That is also regardless of whether the person sitting in the driving seat is the owner of the car, insured as the owner to drive that car, or is not the owner but is insured under some other policy to drive that car. In any of those cases—whether automated or not; whether the policy covers other cars or that car—the insurer of the person sitting in the driving seat at all times is liable to third parties, and then the insurer claims from whoever it wants to claim from, and is able to claim from in court, after the fact.

[Mr Hayes]

I am grateful to my right hon. Friend for his helpful dialogue because it also relates the issues raised by the hon. Member for Kingston upon Hull East. The short answer to the question posed to my right hon. Friend is yes. The complicated factor that my right hon. Friend is now dealing with is that there are policies—I do not have one myself and I do not suppose many here do—where fully comprehensive insurance cover allows other people to drive. That is not the named drivers policy that most of us will probably have, but a more permissive kind of policy, and that is exactly what my right hon. Friend is alluding to.

[Sir Oliver Letwin]

I am grateful again to the Minister. Yes, exactly: I had been worried about two cases, one in which the person sitting in the driving seat was the owner, and the other in which the person sitting in the driving seat was not the owner but was covered by a policy covering the driving of other cars. In both instances, I think it is clear.

The reason I am labouring these points and asking the Minister to confirm them is that I do not think that any ordinary human being reading the Bill would have the slightest clue that this is what it is trying to do. I think its architecture has been forced on it by the desire to piggyback on the Road Traffic Act; and I suspect that lawyers will understand, because they will be familiar with the Road Traffic Act and how its principles operate. Therefore, I am satisfied that probably this is the right way to structure the Bill. In any case, it is certainly structured in a way that, when everything is read together in the right way, does not create the gap that I was worried about, as the car moves between automated and non-automated mode. That was the critical issue.

[Graham P. Jones]

It is a pleasure to serve under your chairmanship, Mr Bailey. I seek clarity from the Minister—I know he has been reasonably descriptive up to a point—on the types of vehicles that will and will not be insured. It will probably be connected and automated vehicles, automation level 4 and 5; however, I am concerned about the size and shape of the vehicles and how the legislation will fit them in the future.

There has been an issue about insuring automated vehicles, not just on public but on private land. However, even on public land, are there situations where we might see a size of vehicle—my hon. Friend the Member for Kingston upon Hull East drives a very small electric vehicle, and there might be even smaller ones—on parts of the road network that had become accessible to new types of electric vehicle, and where we might suddenly need to reflect on the type of insurance? They may get down to the size of a bicycle, for example—I do not know—so are there circumstances or situations where the shape and size of the vehicle would have some effect? I suppose that relates to the definition of level 3 and 4 automation. I know that the Minister will produce a list in future guidance, but I would welcome a clarification from him on shape and size, how the Government see that changing and whether they will be responsive to that.

Going back to insurance on private land, this causes an enormous problem, quite apart from my earlier point about mapping. The legislation says that vehicles must be insured on public and private land—although there are some discrepancies around private land. How will this work with automated vehicles? If we multiply that by the fact that the shape and form of automated vehicles may change—they may be able to go down narrow footpaths, for example—where are the Government on the insurance system? How it will work with automated vehicles accessing private land? I am asking for clarity on this point. I do not know the answer; I am probing the Minister to see if he does. There seems to be a complex minefield of issues when it comes to insuring an automated vehicle—of whatever shape, form or function—that can wander off on to private land. There does not seem to be much clarity in the Bill on that. It seems to be hanging on the old legislation for traditional motor vehicles as we know them and how they are insured on the current road network.

Turning to automated vehicles, in particular on private land, and their shape and form, this will clearly be a challenge, so will the Minister clarify how the Government will respond? Again, I come back to the mapping issue. There will surely need to be tighter definitions of where automated vehicles go and what they are allowed to do. There seems to be no reference to that in the guidance or anywhere else. Will the Minister provide some clarity? People want to know. It is not just about the public highways, motorways, A roads and B roads. It is far bigger than that and the insurance system has to cope with insurance off-road, on private land.

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[Mr Hayes]

I will make the point more emphatically; I was perhaps being a bit too understated. Understatement is a problem I constantly struggle with, as my right hon. and hon. Friends know.

The simple fact of the matter is that if the autonomous vehicle is “responsible” for the accident, and its software is at fault, whether that fault be caused by malevolence or some failure, the consumer’s interest will be unaltered. In the Bill, the consumer is protected in the way I have described, regardless of why the vehicle was at fault. That will then be a matter to determine during the course of the events, but it will not affect the person or persons affected by the accident.

[Sir Oliver Letwin]

rose—

[Clive Efford]

I give way to the right hon. Member for West Dorset.

[Sir Oliver Letwin]

I think this is a conversation somewhat at cross-purposes. Use of the term “consumer” by the Minister is confusing the issue. Let us distinguish between the injured party and the insured party. The injured party is protected in the way my right hon. Friend the Minister and I have described, and the hon. Member for Eltham, my right hon. Friend and I are all in agreement that that is okay.

The hon. Gentleman is asking about the insured party. He is really asking whether anybody will be willing to buy an autonomous vehicle level 4 or 5 under circumstances in which, having taken out the insurance policy, the insurer then discovers that they are liable to some injured party. Then, having paid out to the injured party—tick—they come back to the insured party and say “Because the manufacturer had taken reasonable steps and because the hacking went on despite that, and because nobody including the manufacturer is responsible, and because your insurance policy excludes—you may not have noticed this—in the small print a hacked case, you, O insured party, are now responsible.” I hope I am correctly interpreting the hon. Gentleman.

[Clive Efford]

indicated assent.

[Sir Oliver Letwin]

Yes, good. He is raising a serious point. I do not know whether it is about the Bill, but it is certainly a serious point about what the Bill is trying to achieve, which is to get to a situation where people buy autonomous vehicles because they are able and willing to insure themselves to own them and drive them. They would not be if they thought this was a realistic possibility. Somehow, that problem needs to be solved, whether in the Bill or otherwise.

[Clive Efford]

Again, I am grateful to the right hon. Gentleman. I have a feeling of déjà vu because he is putting my points better than I can. I have little to add to that. There is an issue there that my hon. Friend the Member for Kingston upon Hull East has raised in his amendment that the Government should go away and consider.

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[Karl Turner]

I want to speak briefly to new clause 18. Before doing so, I want to put on record my thanks to the Minister’s officials for the work they have done with my office. They have been extremely helpful.

New clause 18 covers the issue of cyber-security and the hacking of automated vehicles. It would require the Secretary of State to consult with such persons as he considers appropriate within 12 months of the Bill receiving Royal Assent. I am not planning to push the new clause to a vote; its purpose is mainly to probe a little deeper to ensure that the Government properly and widely consult in this area. I would be grateful if the Minister indicated how that has already been done. I know that a great deal of work has gone on behind the scenes; will he assist the Committee by setting out who the Department has consulted with thus far?

[Sir Oliver Letwin]

I actually do not think that this matter can be dealt with in the Bill, but I agree with the shadow Minister that we should seek an assurance from the Government that they will spend the time that needs to be spent, once the Bill is out of this House, trying to deal with what is a very, very big problem.

It is easy to imagine that this is just science fiction, but it is not. It is more than imaginable that, as part of the convergence of networks and as the transport system becomes automated, the single biggest security vulnerability of the UK—and, while we are at it, of any other advanced economy—will be the ability of state or non-state actors to intervene in a whole series of its convergent networks. Obviously, there may also be threats from exogenous things such as space weather, which may affect convergent networks, including electricity, transport, communications and so on, but state actors and some non-state actors are employing serious and highly developed methods to intervene in our cyber-security, as the Government are well aware.

The capacity to do damage to the UK by bringing the transport system to a grinding halt, amidst thousands or perhaps hundreds of thousands of simultaneous crashes, is a delicious prospect. I absolutely guarantee the Minister, although I am sure that he does not need my guarantee to believe it, that someone sitting somewhere—if not several people sitting in several places—is planning that kind of offensive cyber-activity at this very moment. Many of those people have access to many of the people who will be involved in developing the software that will be used in the very machines that we want to be used on our roads.

That is an irony of the globalised world. This is not like the 18th century, when people sat behind huge national barricades and we did not use their technologies but they tried to use them against us. We are now in a position where the people who may use our technologies against us supply some of those technologies to us. That creates a degree of risk out of all proportion to anything we have witnessed before. I am a believer in automated vehicles—I do not think that we can resist this trend—but we need to ensure that an immensely higher level of cyber-security is built in from the start than we might think necessary under other circumstances.

I want to make one further point. This is one of those cases where externalities will not be internalised. It is not in the interests of particular manufacturers to worry very much about this issue. If I am a specific manufacturer of a specific automated vehicle, my interest is in producing something that is good to drive, cheap and normally safe, because that is the way I will sell the maximum quantity of it. If somebody tells me that I could make it safer from hacking, which is unlikely to occur, in the sense that there is a one-in-1,000 or one-in-10,000 or whatever chance of it being hacked, by making it significantly more expensive, my natural and commercial response will be not to add that protection, because it would make me less competitive. I am not particularly worried that Britain may be brought to a halt, because I am not Britain; I am a manufacturer, and I am answerable to my shareholders, not to the electors of the UK.

There is a clear area of intrinsic market failure here, where, however pure a free marketeer one is, Adam Smith principles apply and it is for the state to ensure that the externalities are internalised by legislating or regulating, or by reaching agreement with manufacturers. As I say, I do not believe that the Bill can be the vehicle for creating a whole new structure of invigilation of the cyber-security standards of automated vehicles, but the Minister, in conjunction with Ministers in parallel positions in other jurisdictions, needs to get to work on that rapidly. If that is not done, the Bill will be useless, because it will provide a framework for something that no rational Government will ever allow to occur.

We cannot allow the UK’s transport system to be put in peril by being easily accessible to hackers in a way that could cause hundreds of thousands of accidents simultaneously. It is a necessary concomitant to the Bill that there should be a serious attempt to create that degree of universal cyber-security for level 4 and level 5 vehicles. I hope that the Minister will be able to tell us that he is at this very moment getting the plane tickets to go and talk to all the other relevant Ministers and set up the international systems required to do something similar to the protocols that govern the GSM standard, which make it not unhackable, but much less hackable than previous mobile systems.

[Mr Hayes]

Perhaps I should say a word now about my personal and professional relationship with my right hon. Friend, in as much as it relates to what he has just said. When we worked together in Downing Street, we discussed these kinds of issues many times. I was the Minister responsible for cyber-security at the Home Office, and I take what he and the shadow Minister said very seriously indeed. My right hon. Friend is absolutely right that cyber-security is a pressing, present and immensely great threat. It is vital that the work on this technology, like all the work we do across the House and across Departments, takes account of the scale and nature of that threat and that it does all we can to counter it. My right hon. Friend was involved in that at the Cabinet Office.

On a more personal note, I am not surprised that my right hon. Friend raised the issue. I am rather more surprised that he—with an absolute, but none the less surprising, frankness—emphasised the limits of the market and the constraints on commerce, because he has always been more inclined to a liberal perspective than I am. But then again, who is not? I know he is a great admirer of the power of the markets to shape our futures, so I am delighted—perhaps it is my influence or that of his dear late mother, who, I think it is fair to say, was more on my wavelength on these subjects—that he has been encouraged to take the view, which he has articulated so forcefully and persuasively today, that the industry will not do this alone. It is right that we should work in partnership with the industry. The Government must take their place and have their influence in that respect, and that brings me to new clause 18.

If anything, I regard new clause 18 as an understatement of how significant the issue is. If it were accepted—although I am grateful that the shadow Minister has said he will not press it to a vote—it would impose a requirement to consult on security risk. I do not regard that as a requirement; I regard it is as an obligation. It is absolutely essential that we do that. The work that we are already doing, which he asked me to briefly summarise, is advanced but ongoing. We are working with UK security agencies, the Centre for the Protection of National Infrastructure and the new National Cyber Security Centre—which was set up while I was the Minister responsible, by the way. This issue is a real challenge for Government and for Parliament. It stretches well beyond any particular Government or political party, as has been made clear by what has been said. We will need to engage directly with industry and raise awareness.

We are already discussing the issue with industry. As part of that, we have consulted, developed and published a document, “The key principles of vehicle cyber security for connected and automated vehicles”. It is a guidance document for the automotive industry on good cyber-security and the connected and automated vehicle ecosystem. I do not know whether the Committee has access to that, but I will happily make it available in hard copy form. It is available electronically, if Members wish to take a look. We have also set up the automotive information exchange to promote the sharing of intelligence and best practice for effective cyber-security across the industry.

This issue has been identified as a top priority by the new National Cyber Security Centre. The work will continue and our understanding of how we can counter the risks will grow; but more than that, I would say—as a result of the contributions from my right hon. Friend the Member for West Dorset and the hon. Member for Kingston upon Hull East—that we should consider seeking additional powers over time. I do not think that this Committee is the right place to debate that, or indeed that the Bill is the right vehicle to bring those powers forward, but a commitment to considering additional powers, should they become necessary, is an important one to make. Furthermore, I think my right hon. Friend is right: we need to ensure good cross-governmental work on this. I will take that away, because a further dialogue across Government is necessary. It is happening, but we can always do more, and when it happens at ministerial level, as he will know from the meetings we have had over time, a great deal can be achieved rather more quickly.

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[Mr Hayes]

I charged my right hon. Friend the Member for West Dorset earlier with being the hon. Gentleman’s spokesman and interpreter, but now the hon. Gentleman has put the boot on the other foot. He added further sophistication to my right hon. Friend’s argument in his last contribution. He is right that the Bill begins to address this issue; the point I was making is that, given the ongoing work I described through the agencies I mentioned, it would not be right to set that out in further detail in the Bill. I am arguing against an addition to the Bill, rather than what is in the Bill already.

There is another aspect to this that I want to add. It is very important that we work internationally. Of course, many of the manufacturers are, by their nature, multinational organisations that therefore work across national boundaries. We talked earlier about the development of standards, and how that is happening at UN level and as a result of international dialogue. There is an international dialogue as well on cyber-security, and it is important that we marry our conversations on vehicle standards with our conversations on cyber-security, to ensure a synergous approach to the two.

With those commitments, that absolute assurance of the Government’s understanding of the significance of this matter and my heartfelt support for the strength of the argument made by the shadow Minister and my right hon. Friend, I am delighted that the hon. Member for Kingston upon Hull East will not push his amendment to a vote. We will report back further as time goes on. I will commission the work across Government and, as I have said, I will make available to the Committee some of the documents we have already published.

[Sir Oliver Letwin]

Before my right hon. Friend sits down, and at some risk of adding to the antiphonal relationship with the hon. Member for Eltham, I wonder whether he will also consider clause 1(1)(b). At the moment, it gives the Secretary of State the power to list vehicles capable of “safely driving themselves”. It might be appropriate to consider changing that to “safely and securely driving themselves”, or making some such other amendment, to ensure that he has the power already in the Bill when making the list to include on the list those vehicles that conform with whatever set of standards for cyber-security he eventually develops as a result of the work he is talking about.

[Mr Hayes]

Every member of the Committee should cherish the moment they are about to enjoy, because I accept that proposal and I will consult with my officials on making a minor and technical amendment to that effect, barring any absolute reason why it cannot be done. If we are advised by parliamentary draftsmen that it cannot be done for any reason, we will not, but barring that exception, I will do exactly what my right hon. Friend has described.