Contributory negligence etc

Automated and Electric Vehicles Bill – in a Public Bill Committee at 2:45 pm on 2nd November 2017.

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Photo of Karl Turner Karl Turner Shadow Minister (Transport) 2:45 pm, 2nd November 2017

I beg to move amendment 2, in clause 3, page 3, line 4, at end insert—

“(3) The Secretary of State may by regulations define when it is and is not appropriate for a person in charge of the vehicle to allow the vehicle to drive itself.”

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 is always a pleasure to serve under your chairmanship, Mr Bailey. I do not intend to keep the Committee terribly long on this issue. As the Bill is drafted, 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

“when it was not appropriate to do so.”

The Bill does not define when it is and is not “appropriate to do so”. Our amendment requires the Government to provide regulatory guidance on when it is and is not appropriate for a person to allow an automated vehicle to drive itself.

This goes to points made previously by members of the Committee, not least the right hon. Member for West Dorset. 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; or, for example, a software issue might arise such that using the automated function at that point would be absolutely inappropriate. It appears to me that the true intent of subsection 2 was to focus on bimodal vehicles, because it does not seem to apply to fully automated vehicles. Perhaps the Minister can clarify the position in his response.

One of the primary purposes of part 1 of the Bill 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 use of those vehicles would be inappropriate. I do not propose to press the amendment to a vote at this stage; I think the Minister has got the point I am making. It has been made and reiterated several times by members of the Committee. We are simply asking for regulations that better define those circumstances to be brought forward, because we cannot afford any confusion here. People must be absolutely clear where their obligations lie if we are to see the growth of the industry, which is something we all want. We do not want to leave these issues hanging over us.

Photo of Oliver Letwin Oliver Letwin Conservative, West Dorset

I will address the points the shadow Minister has raised in a moment. Before I do, I want to come back to a fundamental point about the drafting of clause 3(2)—if you will allow me to do so now, Mr Bailey, rather than in a stand part debate—because it is relevant to the rest of the question. My concern relates to the word “wholly” in subsection (2). We discussed this point earlier today. My right hon. Friend the Minister said to me and the Committee that clause 3(2) was meant to solve the problem that I am worried about, which is that there are circumstances under which strict liability for the insurer of the machine is inappropriate, because the driver may do something either immediately before or some while before handing over to the machine that means he or she should not have handed over to the machine. Those are the very circumstances that the shadow Minister is also concerned about.

The Minister directed my attention to clause 3(2) as the solution. I pointed out then—I will now expand on the point—that if subsection (2) is intended as a solution, it is in desperate need of redrafting. The word “wholly”, which I assume has been inserted mindfully by parliamentary counsel, has a very definite meaning: it means “wholly”. Courts know perfectly well what to do with that when they come across a statute that very unusually—this is not something that we normally find—says that a contributory agency is not contributory, but absolute, and the person in question is wholly responsible. The court will interpret that very strictly, and rightly so, otherwise what on earth are we doing drafting Bills and Acts of Parliament?

There could be a circumstance under which the driver was wholly the cause of the accident. Incidentally, I cannot quite think what that might be. It is a pretty remote circumstance, and I would be interested to know whether the Minister can think of an example, but I accept the possibility of such a thing. Most of the time, however, it will be jolly tricky to work out who is actually responsible.

Let me go back to my example of leaving the motorway, but this time the driver was awake and flicked a switch that specifically made the machine take over. Let us imagine that the technology allowed that—it might or might not, we heard conflicting evidence on that, but suppose that it did—and the driver thought that the circumstances were such that the machine could take over and the machine thought, and that is probably an appropriate word to use, given that it is artificial intelligence, that it was appropriate for the machine to take over. However, they were both wrong. The machine was not good at handling the circumstance and it crashed. The machine got it wrong because it should not have taken over, and the driver got it wrong because they should not have asked the machine to take over. Who has caused the accident? I do not know. I am absolutely sure that there are people who will make millions and millions of pounds, and they are the QCs who will argue such cases in court, along with the rafts of solicitors and the enormous apparatus that goes with that. They will all be arguing about who is responsible.

If we lose the word “wholly”, we eliminate that argument, which I assume is the point of putting it in, because, as clause 3(2) is drafted, it says, “If there is the slightest doubt about whether the machine was in any scintilla of a way responsible for the crash, the driver is not wholly responsible and therefore the machine is wholly responsible, so there is strict liability for the insurer of the machine.” It may be that that is what the Minister wants to do, but it is a very odd thing to do, because the costs of insuring these machines would go up compared with what they would otherwise be. Under circumstances in which the driver was a heavy contributor to the cause of the accident by handing over inappropriately, the insurer of the machine would nevertheless be strictly liable because the machine made one millionth of the contribution to the cause of the accident. That is the effect of clause 3(2) as drafted, and I do not believe that that can be the Minister’s intention. That needs looking at.

Turning to the point made by the shadow Minister on regulations and clarification, I agree that it should be perfectly possible to handle the question of when it is appropriate or not to hand over through secondary legislation. I suspect that it will not be the kind of secondary legislation that we have been used to in the main hitherto. It will be very complicated legislation, because it may have to specify processes rather than results. I do not believe that the technology is likely to develop in a way that will make it obvious to the driver in advance, by reading some kind of guide, when the driver is meant to hand over and when not. I suspect that will be interactive and dynamic, and I suspect that the Minister’s successors—the Secretaries of State who will do such things in regulation—will have to find some way of compelling the manufacturers to create an apparatus that tells the driver in a dynamic and interactive way, as they are driving along, whether, as a matter of fact, it is safe to hand over to the machine or not.

One way in which that could happen is the way we were presented with in the evidence sessions. The machine invites the driver to take over and then there is a simple double rule: only machines that invite drivers, as opposed to giving them instructions, are allowed on the road—and, while we are at it, only those certified by the Secretary of State as being safe when they offer the chance to take over are allowed—and, moreover, the driver is never allowed to hand over to the machine except when it does offer that. That is a possible configuration. That would be quite a complicated piece of secondary legislation, because it would have to be accompanied by a series of quite complicated technical codes that ensure that it is put into practice and that the cars manufactured fulfil all those requirements.

There are of course many other models, but it is terribly important to recognise that if the Minister wants to achieve clarity here—as I think he does, and rightly so—as well as getting the drafting of clause 3(2) right, so that it is clear under what circumstances there really is liability for the insurer of the machine when there is a mixture of causation, he needs to recognise that there will need to be either a quite large superstructure of regulation that gives us clarity about the circumstances under which handover is appropriate or, at least, processes that make it unnecessary to have such clarity in a set of rules. I hope that he will recognise in his closing remarks that even if the Bill does not give new powers to do that—because he believes he has somehow got them already—he will consider all those questions anon, as well as looking at the drafting of subsection (2).

Photo of John Hayes John Hayes Minister of State (Department for Transport)

My aim is to do that a lot more quickly than you might imagine, Mr Bailey. I accept entirely that there will be a need for a regulatory framework to ensure both the safe deployment and safe use of automated vehicles. The autonomous insurance measures in the Bill are part of that, but the subsequent regulations that ensue will be part, too. They will be—necessarily—dynamic and, I suspect, quite complex, because this is a complex and evolving field. The reason that it is better done in regulations is obvious: we cannot keep bringing primary legislation to the House in such a highly dynamic set of circumstances. It is therefore absolutely right that it is done in a regulatory framework down the line.

Let me try to deal with the “wholly” issue, because it is important that we do so. If the driver is partly negligent, clause 3(1) applies, and contributory negligence would therefore also apply. Clause 3(2) is there to pick up the limited circumstances in which the driver is wholly at fault—that is, contributory negligence does not apply because it is clear that fault lies with the driver. If we did not include “wholly”, there would be a gap in the scope of the clause, as subsection (1) covers only contributory negligence. That is why the word “wholly” is in the Bill.

Photo of Oliver Letwin Oliver Letwin Conservative, West Dorset

I am in a slightly odd position because it is the Minister’s Bill, so I would expect him to understand it better than I can, but I have to say that if that is his intent, the plain words of the text do not do the job. In clause 3(1)(b), it is perfectly clear on the face of it that the accident has to be, to some extent,

“caused by the injured party”.

That is not the circumstance we are talking about. We are talking about a circumstance in which the accident is wholly caused by some combination, but unknown, of driver—ex or to be—and machine, not by the injured party, so I do not see how clause 3(1) solves the problem of clause 3(2) having a hole in it.

Photo of John Hayes John Hayes Minister of State (Department for Transport) 3:00 pm, 2nd November 2017

My right hon. Friend will understand that the injured party might include the driver; an injured party does not mean an injured third party.

Photo of Oliver Letwin Oliver Letwin Conservative, West Dorset

It might, but it might not.

Photo of John Hayes John Hayes Minister of State (Department for Transport)

Yes, but clause 3(1)(a) says that

“an insurer or vehicle owner is liable under section 2 to a person (‘the injured party’) in respect of an accident”, so it covers both the driver or another party. That is repeated in paragraph (b). I do not understand what my right hon. Friend’s problem is.

Photo of Oliver Letwin Oliver Letwin Conservative, West Dorset

The Minister is being very patient. Perhaps I am misunderstanding, but I beg the other members of the Committee to read the text:

“Where…an insurer or vehicle owner is liable…to…an injured party…in respect of an accident”.

The injured party is someone who has been injured—that is the reason for the reference to an “injured party”—but if I am the driver and in this case I am not injured, the insurer is not liable to me. I have just handed over control of the vehicle and it has injured somebody else, so I am not an injured party, and the injured party has not contributed to the accident, so clause 3(1)(b)—

“the accident, or the damage resulting from it, was to any extent caused by the injured party”— does not apply. Clause 3(1) therefore does not apply in such circumstances, so it cannot solve a problem in clause 3(2) because it does not apply to the circumstances that we are talking about under clause 3(2)—or at least not to the circumstances that are worrying the Committee and that we have been talking about more or less all day, which is the question of what happens when I am handing over.

Order. That was meant to be intervention.

Photo of John Hayes John Hayes Minister of State (Department for Transport)

I am comfortable with the idea that the driver might be the injured party, and my right hon. Friend comfortable with that too. We are clear on the issue of whether the car was being driven by the driver or was in autonomous mode. Is my right hon. Friend concerned therefore about another party, unrelated to the vehicle, who might be affected by the accident? Is that what he is getting at? I do not understand.

Photo of Oliver Letwin Oliver Letwin Conservative, West Dorset

I hope that with your indulgence, Mr Bailey—

Make it short.

Photo of Oliver Letwin Oliver Letwin Conservative, West Dorset

I will try to make it as short as I can, but I am trying to advance the cause of understanding between us by answering the Minister’s question. We are envisaging circumstances in which a driver hands over to the vehicle and the vehicle takes over, but it turns out that it was arguably not safe or sensible for the driver to have done that. The driver was not injured and is not the injured party—the insurer is liable not to the driver, but to someone else who got damaged. That is the injured party. Clause 3(1) does not apply. That is the problem and that is the reason why clause 3(1) cannot solve the problem of clause 3(2).

Photo of John Hayes John Hayes Minister of State (Department for Transport)

I will reflect on that. It is clear to me when clause 3(1) and clause 3(2) do apply, but it is a reasonable question to ask where the clause does not apply—as my right hon. Friend has described—and what would apply in those circumstances. I am perfectly prepared to reflect and to come back with a clear answer. I am now certain to what he was referring, and that will help in the process of trying to satisfy him.

I was not able to be as short as I had hoped—I began this brief contribution by saying just how brief it would be. In respect of the shadow Minister, I think I have been clear that it is likely that the first autonomous vehicles will be used, as I said, in particular circumstances —earlier I talked about geofencing. It is likely that the global regulations that will be used to type approve autonomous vehicles will reflect those limited cases. It is therefore not yet clear that we will need to make matching regulatory changes in our domestic framework, as I have also said.

We do have the powers under the Road Traffic Act, as I said in response to an earlier intervention, to revise or create new road vehicle construction and use regulations. In that sense, the amendment would duplicate existing powers so really it is superfluous. Its intention is good, because it intends to do what I have just described, but I am not sure that for this purpose it is the right vehicle— I hesitate to use that term because, as so often in the debate so far, we are speaking about roads, journeys and vehicles. None the less, I am confident that we have enough powers and are taking enough powers, through the application of the regulations that I have said will ensue, to satisfy what the hon. Member for Kingston upon Hull East intends. On that basis, I hope that he will withdraw the amendment.

Photo of Karl Turner Karl Turner Shadow Minister (Transport)

I am happy to confirm that I beg to ask leave to withdraw the amendment.

Amendment, by leave, withdrawn.

Clause 3 ordered to stand part of the Bill.

Ordered, That further consideration be now adjourned. —(Andrew Stephenson.)

Adjourned till Tuesday 14 November at twenty-five past Nine o’clock.