Automated and Electric Vehicles Bill

Baroness Randerson Excerpts

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

Moved by

[Baroness Randerson]

1: Clause 1, page 1, line 6, at end insert “including vehicles manufactured and purchased outside Great Britain,”

[Baroness Randerson (LD)]

My Lords, I am very pleased to see that we have, after several weeks’ delay, reached the Committee stage of this Bill. As I said in the previous debate, I welcome it. I was reminded, however, of its very narrow scope when I tried to devise some amendments which seemed to me useful and straightforward but seemed to the clerks, quite rightly, to be out of the scope of the Bill.

I understand the Government’s desire to deal with insurance as the low-hanging fruit of automated vehicles first of all. As we are told, however, that these vehicles will be on our roads in two to three years—and indeed as they are widely being trialled across the world and in parts of Britain—the Government, I fear, are going to have to run very fast to catch up on this issue given the pace of development of technology. I know that the Law Commission is looking at other aspects beyond insurance, at such matters as criminal responsibility and the wider issue of pedestrian and driver behaviour, but there is a serious danger of being overtaken by events. In moving Amendment 1, I want to concentrate our minds on the issue of vehicles manufactured and purchased or simply manufactured outside Britain and the importance of their being properly and fully reflected on the Secretary of State’s list.

The amendment’s intention is to ensure that this list is fully robust. Up to now, our insurance system has coped with imported cars simply because a car is a car. Whether a car is manufactured abroad and imported here prior to sale or manufactured and sold abroad and then imported into this country for use, either temporarily or permanently, this list has to be clear and comprehensive. How do the Government intend to ensure that the list is truly comprehensive? The world is a very big place, and we have a large number of people living in this country with links to other countries who might choose to import cars from abroad. There are also many hundreds of thousands of cars—indeed, millions—being driven on our roads that were manufactured abroad.

Amendment 2 stresses the importance of the Secretary of State’s list being aligned with definitions used in other countries—indeed, that goes for the whole Bill. The insurance industry has produced what it calls the 10 commandments, or 10 points, that a vehicle needs to adhere to in order to be considered automated. The United Nations Economic Commission for Europe, or UNECE, deals with global transport issues in relation to safety and is currently discussing international definitions of automation. I am told that the Department for Transport is taking a leading role in this.

The Society of Motor Manufacturers and Traders is concerned that the Secretary of State’s list should follow the internationally accepted criteria as spelled by UNECE and should not be just a UK-specific definition. For this reason, it is keen that this legislation should use the internationally accepted levels used across the world within the industry. These standards were established by the Society of Automotive Engineers International and are apparently used everywhere across the world.

The Government intend the Bill to apply to levels 4 and 5, but, as written, it could apply to some vehicles at level 3. I want to draw attention to a recent court case in which a man was prosecuted for driving a Tesla S down the M1 near Hemel Hempstead while sitting in the passenger seat—there was no passenger in the driver’s seat. He was on autopilot. That is described by Tesla as a suite of driver assistance features including traffic-aware cruise control, which assists with acceleration and deceleration, and auto-steer. Although the reports I read did not specify it, I imagine that the vehicle also has automated emergency braking, because that is quite common in a range of cars. That is level 3, but it meets the definition in the Bill at Clause 1(1)(b), that vehicles are,

“capable, in at least some circumstances or situations, of safely driving themselves”.

Clearly, the argument here is whether that was safe, but I fear that the Government might find themselves involved in a great deal of protracted court procedure on the definition of “safe” After all, level 3 cars are certainly on our roads.

If I go into a little detail about the difference between the levels, the Committee will see how narrow that difference is and how the Government’s definition in the Bill could be misleading. In level 3, the vehicle controls all monitoring of the environment. The driver’s attention is still needed, but can disengage from safety-critical functions such as braking. Many level 3 cars currently available require no human attention to the road at lower speeds. At level 4, a vehicle tells its driver when it is safe to be automated and when not. The vehicle is capable of steering, braking, accelerating, monitoring other vehicles and the road, and responding to traffic. It can determine when to change lanes and signal but it cannot cope with traffic jams. That is sometimes referred to as the, “mind off” level. At level 5, a steering wheel is optional—there is no need for a steering wheel—no human intervention is required and you do not need brakes or pedals. It is a totally new design of car.

I have gone into that in some detail because I fear that the Government’s definition of automated vehicles as being,

“capable, in at least some circumstances or situations, of safely driving themselves”,

is oversimplified. They need instead to rely on internationally accepted definitions. The reason the Society of Motor Manufacturers and Traders is concerned is that the levels are so well established and widely used across the world and within the industry that even if technology advances further, as it probably will, all they will do is add a level 6. It is rather inconsistent of the Government. I understand that they want some all-embracing definition that is not subject to change, but in the second part of the Bill, for example, which relates to electric vehicles, the Government are happy to refer to “fast and rapid charging”. That is the same kind of technological term currently in use—the current jargon.

I believe, and the Society of Motor Manufacturers and Traders also suggests, that this could lead to a blurring of definitions. It could lead to legal challenge and the Government could spend a lot of time defining what is safe. Amendment 33, in the name of the noble Lord, Lord Tunnicliffe, also deals with the definition of safe driving. I welcome it especially because it touches on the crucial issue of hacking: I am sure we will come back to that in later debates. I beg to move.

[Lord Tunnicliffe (Lab)]

My Lords, I shall speak to my Amendment 33 and comment briefly on the amendment of the noble Baroness, Lady Randerson. The debate today will cover several areas, but one of them will be safety and I shall speak more about that later. My amendment covers safety, and lights particularly upon hacking. This is not a controversial Bill as I see it: virtually all the amendments are probing amendments and I hate to say it to the Minister but I think the speaking part on this occasion will be principally hers rather than mine.

Clause 7 sets out the terms for when a car is deemed to be driving itself, or in automated mode. However, it makes no mention of what happens if the vehicle is designed or manufactured faultily, or if it is hacked due to a failure by the manufacturer to install adequate software safeguards. While we all welcome the opportunities that this new technology will bring, we also have to recognise that it will bring new risks. A lot of these risks will be around the software used and therefore may be harder to pick up than in a conventional vehicle. This is a good opportunity to put in safeguards to give protection around this area now, rather than later down the line.

The amendment tightens up this area of the Bill by setting out when an automated vehicle is capable of driving itself safely. This would give the driver protection with regard to liability if it was proven that there was a manufacturer’s fault or the vehicle had been hacked. The purpose of the amendment is to get a general debate started in relation to this area, particularly on the hacking element.

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[Baroness Sugg]

I am afraid that we do not have a specific timetable. Obviously, technology is developing all the time, and we do not yet have the technology available for type 4 and type 5 vehicles. We are working closely, as I say, at United Nations level, and are also working as part of that with both vehicle and software manufacturers to be able to define those standards. Given that we do not yet have the technology, we are not yet able to define the standards, so I am afraid that it will slightly depend on how things progress. However, we play a leading role in this and, as soon as these international standards are set, we will then be able to use them for our type approval for standards within the UK and declare it legal and safe for those vehicles to be driven in the UK.

[Baroness Randerson]

I thank noble Lords and the Minister for her comments, and particularly thank the noble Lord, Lord Borwick, for his support on the need for a more precise definition.

In response to the noble Lord, Lord Lucas, I clarify that I have specified levels 4 and 5 because that is what the Government have said that the Bill applies to. If the Government want it to apply to level 3 as well, that is fine. The principle is the need for a clearer definition; the use of levels rather than the definition is what I am suggesting.

The noble Lord, Lord Berkeley, asked how long it would take to get used to automated vehicles. If you drive a minibus, it comes as a bit of a shock to find that you are sort of on top of the car in front of you, in comparison with driving a car, when you expect to have a bonnet in front of you. We are getting used to new ways of driving. As I have mentioned before to noble Lords, I have an electric car, and that is a totally different style of driving. We will get used to it more quickly than perhaps some people think.

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[Lord Lucas]

My Lords, can I argue against crisp definitions? We do not yet know what will happen. Maybe we can evolve a system where the ordinary car we use at home can switch into fully automated mode for, say, travelling around the railways, and then when it is not part of a railway, it will come off. Sometimes it is a car and at other times it is a rail vehicle. If we are to take a lead in this industry, we will need to continuously shape and reshape definitions. We do not want to be hamstrung by what we can think of now. I agree that we ought to share definitions around the world, but they ought to be based on technology as it evolves. It ought to be fast moving. We ought to equip ourselves with legislation which can move as the industry moves.

The noble Lord, Lord Berkeley, asked me whether there would be capacity constraints. No, there would not be; if you transfer to rubber wheels, you can manage much higher traffic densities because you do not have the braking distance problems, and you can fit with the current level of autonomous safety. I am not saying that one could manage high-speed lines, but Southern rail is all low-speed. The fast services on the London to Brighton line manage 45 miles per hour. If, with autonomous vehicles, you are managing to go 70 or 80 miles per hour, just by doing that you are doubling the capacity. Therefore there are no capacity constraints on using these routes for autonomous vehicles. It will probably be managed by Network Rail because you need the consistency, predictability and safety constraints that go with rail services. However, we are talking about much smaller vehicles and different technology—about providing a basis for the whole of autonomous vehicle technology to evolve. Under those circumstances, you have to move definitions to keep up with the technology.

Level 3, as I read the definition, seems to provide a pretty good base: there are times when the vehicle can be autonomous but then it gets to a point where it says: “Hang on, I can’t be autonomous here, I need the driver to take back control”. That seems to be the sort of technology you might well try to put on a rail service so that, without having to get to levels 4 and 5, you can provide room for individual vehicles to travel on the service and provide the connections that people want beyond a railway station. We do not know yet; we have not got there. We have to allow the Government the breadth of definition that will allow us to experiment and to lead the field.

[Baroness Randerson]

The noble Lord talks about looking at the future and says we have not got there. With all due respect, we have got there. I have been in a driverless car—technologically, they exist. They are being trialled in parts of this country and indeed across the world. However, the noble Lord is right that we are crystal ball gazing over exactly how they will be used. In what circumstances will we use them? Will we all own our own little pod or will we summon up a pod to collect us and take us to work, or whatever, whenever we wish it? There is a great deal of debate here; undoubtedly the initiative has already been taken by taxi companies, for example, in this area.

However, I return briefly to Amendment 1 and the points made about definitions. I am not slavishly devoted to levels 3, 4 and 5—or 4 and 5. If the Minister says this has been rejected, that is contrary to what I was told, but I am happy to go with what has now been accepted. The definition needs to be precise enough for this not to end up in a lot of court cases. I say that because the whole of this part of the Bill is about insurance; we all know that insurance is always mired in legal definitions, so the Government need to be on firm ground. Having said all that, I am happy to withdraw my amendment.

Amendment 1 withdrawn.

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Moved by

[Baroness Randerson]

3: Clause 1, page 1, line 8, leave out “or adapted”

[Baroness Randerson]

My Lords, removing the two words “or adapted” would mean that the Secretary of State’s list would not include vehicles manufactured for conventional driving and adapted for autonomous mode. Those involved in the motor industry regard the concept of adapting vehicles as extremely dangerous. The technology companies—the people who write and design the software for cars—also regard it as very dangerous. The point they make is that their software is specifically tailored to individual car design. The fact that their technology works safely in one car does not mean that it can be shoe-horned into another model, even a similar model.

The clause as written would include individual adaptations by enthusiasts, which would be a very uncertain path to go down. Indeed, if a car manufacturer decided to adapt a current level 3 model—for example, the Tesla S, to which I referred earlier—to a level 4 car, I am absolutely sure that Tesla, in line with standard motor industry practice, would call it the “Tesla S Elite” or something similar. It would be a different model and therefore it would not be an adaptation in the meaning set out in relation to the Secretary of State’s list. What I am really pointing out here is that the concept of “adapted” vehicles would narrowly include those adapted on a one-off basis by individual enthusiasts, and therefore it would not seem reasonable to expect the Secretary of State and the Department for Transport to have the expertise to know whether that was safe.

I want to refer briefly to Amendment 29, which is in this group and stands in the name of the noble Lord, Lord Tunnicliffe. A big section of it is very similar to the amendment tabled by Labour in the Commons to the Vehicle Technology and Aviation Bill. I congratulate the noble Lord on having managed to get this amendment accepted. I could not think of a way of doing it, but he has done very well.

Amendment 29 addresses crucial issues associated with the proper repair and maintenance of automated vehicles. In particular, it goes into detail on the need to establish properly accredited training schemes for those who repair and maintain them. Rather like the repair of electric vehicles, the process is totally different from traditional vehicle repair. I spoke at Second Reading about the need for a process similar to the old CORGI gas safety scheme. That was a highly respected, universally acknowledged scheme and came about as a result of the Government working with the industry. We need the Government to work with industry in the same way on automated vehicles, and I am very grateful that the noble Lord has raised it in his amendment. I beg to move.

[Lord Tunnicliffe]

My Lords, I shall speak to Amendment 29 in my name. I accept the noble Baroness’s congratulations on behalf of my staff—which is one quarter of a very able lady—who managed to get this past the Public Bill Office. The proposed new clause would protect insurers against accidents caused by vehicles repaired by unauthorised technicians. It would also require the Government to establish a scheme for the authorised inspection, repair and maintenance of automated vehicles by licensed and accredited technicians.

The automotive industry already relies on hundreds of thousands of individuals who support work on and maintain vehicles. As the technology develops, so too must the skills of those working on them. We are already aware of an existing skills gap in the industry. As the technology develops, that gap may well worsen but, as it stands, the Bill does not address a worsening skills gap. If we do not start planning for this now, we will be left with a huge hole in the support structures for these new vehicles.

I am of the generation where I was privileged at the age of 17 to buy a car for seven pounds and 10 shillings. The car was seven years older than me. It tended to go only about 10 miles before having to have its plugs cleaned and so on—which made courting my wife a bit difficult at times. But we were of a generation when the skill of looking after automotive technology was very straightforward, and widely understood by a large section of the population. Now I drive a Prius, and I would not dare touch anything on it. Not only is it unduly complex, but it could be very dangerous, with the very high voltages involved and so on. There is nothing I could do to that car that would do anything other than worsen its performance.

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[Baroness Randerson]

My Lords, I accept that my Amendment 3 is a very simple and straightforward device. It was an attempt to approach one aspect of the safety issue. Amendment 29 is a much more complex and comprehensive approach. If Amendment 29 or something like it were adopted, there would be no need for Amendment 3.

I was trying to begin to talk about safety and to raise the issue that if you allow adaptations, the Secretary of State will have to devise a way to apply a wide and rigorous range of safety tests. Currently, if you build your own car in a garage you can test it pretty straightforwardly and take it on the road. You could be stopped by a policeman and you could take it to a garage and it would or would not get its MoT on a series of straightforward yes or no tests with no doubt about it. But, if we are talking about adaptations to autonomous vehicles, the danger in these adaptations will almost certainly be in the software, which it is very much more difficult to test. We have only to look back at the Volkswagen scandal. Volkswagen installed the so-called defeat device in the software of its diesel cars that kicked in only when it detected that it was being tested. It was therefore able to mask the true extent of emissions. That is a very complex operation. To test software we would have to go through very lengthy, all-situations style testing to make sure that a vehicle is truly safe. It is not just a case of putting your foot on the brake and saying that it stops quite quickly and it is fine.

[Lord Berkeley]

Would the noble Baroness be tempted to press the Minister to have a meeting on these issues before Report and come back with a much shorter text than Amendment 29 with the intention of covering these issues? I think that would give many noble Lords who have spoken in the debate quite a lot of comfort.

[Baroness Randerson]

The noble Lord, Lord Berkeley, puts forward a very good idea. I know that the Minister is always very generous in providing opportunities to discuss issues. We already have two issues that we need further information on. I am sure that there will be other amendments later where we will need a meeting or, at the very least, a fairly lengthy letter—but it would be better to discuss it.

I readily acknowledge that the approach taken by the noble Lord, Lord Tunnicliffe, is a more thorough approach to the issue of safety. With that, I beg leave to withdraw my amendment.

Amendment 3 withdrawn.

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[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, 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.