Accident resulting from unauthorised software alterations or failure to update software

Automated and Electric Vehicles Bill – in a Public Bill Committee at 9:25 am on 14 November 2017.

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Photo of Alan Brown Alan Brown Shadow SNP Spokesperson (Transport), Shadow SNP Spokesperson (Infrastructure and Energy) 9:25, 14 November 2017

I beg to move amendment 11, in clause 4, page 3, line 13, at end insert—

‘, provided that the vehicle manufacturer has made all reasonable efforts to—

(a) notify the owner of a vehicle about the need for an update of the vehicle’s operating system

(b) provide the relevant update of the vehicle’s operating system to the owner or insured person, and

(c) arrange for the installation and update of the vehicle’s operating system.’

This amendment would ensure the manufacturer has made every possible effort to inform the owner of the vehicle that a software update is needed before liability is passed to the owner.

With this it will be convenient to discuss the following:

Amendment 12, in clause 4, page 3, line 36, at end insert

‘(7) The Secretary of State must by regulations establish a system by which an automated vehicle may only be approved for driving itself on public roads if all application software is up to date.’

This amendment would require the Government to introduce regulations to establish a system that requires automated vehicle software to be up to date in order for them to utilise automated functions on public roads.

New clause 9—Updates to software and operation of automated vehicles—

‘The Secretary of State must bring forward regulations to require that automated vehicles cannot operate in automated mode on public roads unless the application software relating to the vehicle’s automated function is up to date.’

This new clause would require the Government to introduce regulations that require automated vehicles to be up to date in order for them to utilise automated functions on public roads.

Photo of Alan Brown Alan Brown Shadow SNP Spokesperson (Transport), Shadow SNP Spokesperson (Infrastructure and Energy)

It is a pleasure to serve under your chairmanship again, Mr Bailey. I note that you wisely ducked out just before I spoke yesterday in Westminster Hall, right enough—no such luck this morning.

Clause 4 is all about liabilities associated with operational software for automated vehicles. Amendments 11 and 12 aim to strengthen the clause and amendment 11 aims to clarify the responsibilities of the vehicle manufacturer. In turn, that may even assist the vehicle manufacturer with regards to clause 4(1)(b), which refers to whether a person ought to reasonably know about safety-critical software updates being required. We are using the right terminology, and it is hoped that the law meets its intended purpose both of ensuring that people are insured and of clarifying where liabilities are limited for insurance companies.

If the Bill sets out how important it is that safety-critical software is updated, it follows that duties are placed on the manufacturers to take all reasonable steps to ensure that that happens. Therefore, as with smartphones, the manufacturer must notify the owner of the need for upgrades but, unlike smartphones, it needs to be much more than a simple notification. Steps need to be undertaken to ensure that the vehicle owner is aware of the need for upgrades and to make arrangements for them to happen. There could be a series of warnings through the software, or written letters and correspondence. Given the sophistication of the software, and its interactive nature, in that it tries to talk to software on other servers, perhaps even some form of remote immobilisation could be considered. If those steps are followed, any evidence of the deliberate overriding of adaptations undertaken by the owner will fall within the insurance liability limitations outlined in clause 4.

Amendment 12 follows on from that, requiring the Government to introduce regulations to establish a system that requires automated vehicle software to be up to date in order to utilise automated functions on public roads. It might be argued that the amendment is not required, that it simply dots the i’s and crosses the t’s, but given that that function of the software is the brain of the vehicle, it is absolutely incumbent on the Government to ensure that there is a system for explicitly determining that the software is safe, and able to be used.

I suggest that new clause 9 serves the same function as amendment 12. I am therefore supportive of it in principle, but there is a logic in amendments 11 and 12 being put in with clause 4, to tighten it up.

Photo of Craig Tracey Craig Tracey Conservative, North Warwickshire

I want to make a brief contribution. I mentioned in a previous sitting that I chair the all-party parliamentary group on insurance and financial services. We have looked into this area in some detail and I think it is fair to say that across the industry there is a lot of support for the Bill, which is good news. The industry is appreciative of the fact that the Bill is moving forward at pace, and of the Minister’s approach to that. However, we think there is a definite opportunity to tighten the wording in clause 4(1)(b), as there seems to be scope for conflict between different parties in two areas.

First, regarding the phrase

“insured person knows, or ought reasonably to know, are safety-critical”, one of the consequences is that there might be a legitimate reason for software not being installed: a vehicle might be on a journey, there might be no signal or someone might have to use a vehicle in an emergency. The wording is open to interpretation and one of the consequences of that could be delays in paying out claims.

My second point is whether a safety-critical update was contributory either in whole or in part to an accident. Without tightening up the wording, there could be delays in the settling of claims, potential higher claims costs, and more data—data was raised quite a bit in the evidence sessions—being required to settle claims and to establish cause. Again, a knock-on effect is that the full potential of cost savings on insurance might not be fully recognised because of the cost involved in deciding on liability.

With those two points in mind it seems sensible to shift the onus from the insured person for the safety-critical update directly on to the manufacturer in all cases. We know the technology is there. It is available either to not enable the vehicle to start if a safety-critical update is not put in place or—this is probably more reasonable—to not enable a vehicle to access the automated mode unless all safety-critical software issues are up to date. Those are just a couple of points that I wanted to raise with the Minister which perhaps he will consider when he responds to the amendments.

Photo of Iain Stewart Iain Stewart Conservative, Milton Keynes South

Following on from the points that my hon. Friend just raised, will the Minister clarify a couple of points regarding the phrase in clause 4(1)(b), which states:

“the insured person knows, or ought reasonably to know”?

I am concerned that the phrase “ought reasonably to know” is a little woolly. I am not a lawyer or an expert in parliamentary drafting. It may be that the phrase is a well-used one that the courts can easily interpret, but in the context of the new software I am a little uncertain as to what “ought reasonably to know” actually means. I can envisage a number of scenarios in which the driver may have had an alert from the manufacturer that says, “We need to install version 1.whatever of the software.” He gets the update at a quarter to nine in the morning. He is rushing out of the house, late for a meeting, and says, “I’ll do that later on,” and then the car he is driving is unsafe at that point. I am simply not clear where the onus lies and when that person should install the software. Perhaps the Minister will clarify that point when he responds to this group of amendments, or he may wish to reflect on it and consider the matter further on Report. It is an area I have concerns about and we ought to get the drafting absolutely right.

Photo of Karl Turner Karl Turner Shadow Minister (Transport)

It is a pleasure to recommence the discussion of the Bill under your chairmanship, Mr Bailey.

New clause 9, tabled in my name, states:

“The Secretary of State must bring forward regulations to require that automated vehicles cannot operate in automated mode on public roads unless the application software relating to the vehicle’s automated function is up to date.”

The new clause would require the Government to introduce regulations that require automated vehicles to be up to date in order for them to utilise automated functions on public roads. Under the current drafting, people would be able to drive their automated vehicles on the roads without having the latest up-to-date software, which could lead to safety risks. The new clause would ensure that the Government introduce regulations that require automated vehicles to be up to date in order for the automated function to be used. If a vehicle had a serious mechanical fault that could endanger the driver and others, we would not allow it on our roads. An automated vehicle would similarly present an increased safety risk if its operating system was not updated. Most people with a smartphone or computer are likely to have software that prevents it from being used until it is updated. I am not struck by any reason why a similar mechanism could not be included in automated vehicles. By preventing an un-updated vehicle from being used, we would achieve safer roads and cheaper insurance.

Photo of Graham Jones Graham Jones Labour, Hyndburn

My hon. Friend is making a powerful point. This applies most critically to GPS, where there may be changes to roads or whatever. The automated vehicle would need to know where it is going and whether there had been some ad hoc intervention in the road layout that meant that the GPS was inaccurate. Clearly, there would need to be an update. Does he share my view that updates should be regular and frequent, because they are part of the safety process?

Photo of Karl Turner Karl Turner Shadow Minister (Transport)

My hon. Friend makes a valid point when he talks about GPS systems. Without the new clause, people would be able to take un-updated vehicles on our roads, without being absolutely sure that they are safe. A primary benefit of AVs is that they reduce the likelihood of human error. However, one of the few areas in which the scope for human error remains—the responsibility for ensuring that software is updated—would not be addressed, even though it would not be difficult to do so. I cannot find any reason why it is not possible to legislate for this. The new clause addresses that obvious issue and I trust that the Government will consider it carefully.

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

We continue with dedication our diligent perusal of these matters and our scrutiny of this Bill. I am grateful to the Committee for its continuing determination to get this right. When we first met, we said that this was an important and challenging piece of legislation because we debate it in rapidly altering circumstances. The technology is moving on apace and we are trying to tread a path between creating sufficient certainty to allow insurers to develop the products they will need as the technology comes on stream and predicting a future which, by its nature, is unpredictable. That is the path we tread. It is important to emphasise in that spirit, in relation to this clause and these amendments, that the Bill is a first step. It does not solve all the problems or answer all the questions. It is a modest Bill, though an important one, in those terms.

It is doubtless true that as this technology unfolds more work will need to be done. We are on the cusp of an important—indeed, one might say revolutionary—change in what we drive and how we drive it, but it is not for this Committee, Government or Minister to predict quite what that might look like in decades to come. The modest character of the Bill needs to inform all our scrutiny. We are not aiming to solve all the problems here. We are aiming to take a measured first step towards solving those problems and meeting those challenges.

However, it is right that we debate the issue of how motorists understand and update their systems so that they can use their automated vehicles safely, as the shadow Minister, the mover of the amendment, the hon. Member for Kilmarnock and Loudoun, and other contributors have said. A core part of that is to ensure that the regulatory framework is in place which compels manufacturers to bring to market systems that make this process as simple and effective as possible.

This is certainly not the place for that legislative process to occur. It is not the purpose of the Bill. The requirement for systems to update forms part of an international set of standards, which I mentioned earlier. Vehicle safety and technology are subject to international standards. Those standards are well established in respect of the vehicles we all typically drive, but they are emerging standards in respect of autonomous vehicles. Much work has been done by this Government and others to ensure that those standards are fit for purpose. They will form the basis of a new type of approval process. We are familiar with the existing means by which these things are assured. That will develop over time, as the type of approval process emerges as a result of the work that is being done. Until that type of approval process is fit for purpose, these vehicles will simply not be sold or driven on our roads. In addition to our domestic non-insurance regulatory programme, it is vital that we are mindful of those further developments.

Robust standards will be in place before the vehicles arrive to market. There is, therefore, a risk in acting unilaterally. I understand why people are suggesting that we might; it is a perfectly reasonable response to the debate and the Bill, and it is useful that we are airing these subjects here. However, we would not want to try to anticipate the development of those standards without a clear understanding of the ultimate design standards to which these vehicles will be held, as we would risk creating barriers to the use of this technology and inhibiting further research and development—indeed, possibly inhibiting the development of the insurers’ products that the Bill is all about. We are continuing to take part in the international negotiation shaping the standards, and developing domestic road traffic laws and guidance. We do not accept new clause 9 and the amendments to clause 4 that would compel us to act without a settled knowledge of how these systems will ultimately be configured.

Let me deal, however, with some specifics. A series of points have been made on these matters during our scrutiny. I have written to the Committee, as Members will know, dealing with some of the questions that were previously raised. I do not think that this is an appropriate point to go through those letters because they do not directly relate to the subject at hand, but there will be a chance—I think at clause 7—to revisit some of the issues that were dealt with when we looked at clause 1. I simply put that on the record, in case people were wondering why I was not immediately addressing some of the things that were raised by my right hon. Friend the Member for West Dorset and others in earlier parts of the scrutiny.

In respect of the issues raised by my hon. Friend the Member for Milton Keynes South, I am looking for the guidance that I might have received from another place—[Interruption.] Ah, here we are; it has winged its way to me. In the end, the courts will interpret the facts. If a person knew that they needed to update the software and failed to do so—that is, knowingly took a view that they did not need to update their software, rather as if someone knowingly drove a vehicle that was mechanically unsound—a judgment will of course be made about their responsibilities and whether they should have used the vehicle. If someone is negligent in respect of their vehicle’s fitness to be driven, clearly the courts will have to take a view about their responsibilities.

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

I can see that my hon. Friend is satisfied, but not entirely.

Photo of Iain Stewart Iain Stewart Conservative, Milton Keynes South

I agree that we cannot anticipate exactly what form the technology will take, or the form of the updates. My right hon. Friend mentioned that further regulations would be issued before these vehicles went on the road. Would those regulations include a clearer definition of the obligations on the driver regarding when they must install any updates to the software?

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

I will come back to that, because in a way it relates to the point made by my hon. Friend the Member for North Warwickshire. We anticipate that the majority of software updates will be delivered automatically over the air, as it were, so we would expect software to be updated over time in that way that my hon. Friend the Member for Milton Keynes South suggests. I am mindful of the work that my hon. Friend the Member for North Warwickshire has done on this—we have discussed it outside the Committee.

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

I will in a second.

In the end, the clause aims to protect insurers from a negligent person who intentionally fails to update their vehicle. For the sake of clarity, I offer the parallel of someone who fails to ensure that a vehicle they drive now is safe—who fails to take the proper precautions or make the proper arrangements to ensure that their vehicle can be safely driven when they go out in it. So it will be with autonomous vehicles and the software that relates to them. That is the purpose of the clause, but I am not entirely convinced by the advice that I have had on it yet. The civil servants in the room—I know I am not supposed to acknowledge them—will have a shiver going down their spine. I want to reflect more on it. I think we are right and I am sure what I have said is right, but I may have more to say on it. I am happy to reflect on it and come back to my hon. Friend the Member for North Warwickshire if there is more to be said.

Photo of Craig Tracey Craig Tracey Conservative, North Warwickshire

I appreciate that the Minister will look into it. He mentioned that the clause will protect the insurers, but the insurers of the insured person will still be footing the bill. By passing the onus for safety critical updates to the manufacturer, that could be taken away from the insurance industry.

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

With laser-like precision, my hon. Friend has focused on exactly the reason why I want to reflect on it. I thought that that was what he might say and that was what he meant when he first spoke. Although the response I offered him goes a fair way towards what he was seeking, I need to clarify that additional consideration for him. In the end, that will bring us back to the point close to the heart of all insurance considerations: how we discern liability and negligence. I want to be more precise about the second point that he raised, but I do not yet feel confident to do that. I will now give way to my old friend—the veteran of many Committees with me.

Photo of Graham Jones Graham Jones Labour, Hyndburn

I am grateful for the Minister’s warm words. To return to the issue of GPS mapping updates, people expect the road network to be updated on vehicles, but the scenario is completely different for manual operation compared with automated operation. I hope the Minister is aware that most of the operated maps sit in the private sector. That is not an issue if the car is manually operated because the driver always has discretion as he sees the road in front of him, but that is not the case in automated mode. We have to think about our highways workers or our police force who may be intervening in the road network.

When we talk about updates, serious consideration needs to be given to GPS maps in automated mode. Who is responsible for them? Who owns them? Who will update them? How will we ensure that we have road safety? Updates are vital, but GPS mapping is particularly vital. The Minister needs to take a good look at that and how it will be integrated into the insurance industry and into the Bill and the regulations to protect our people working on the roads.

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

As I say, the hon. Gentleman is a veteran of many Committees. We have rarely crossed swords, but we have certainly waved swords at each other from time to time. He makes a sound point which is precisely why we would need to address a range of those issues in further regulation. At this juncture, I do not think we can think about adding that to the Bill. I know he did not say we should, but he did say that we should think about those matters and look at how they relate to this Bill subsequently. He is absolutely right.

At the risk of opening up a new avenue for discussion—I hesitate to do that because I know we want to make reasonably rapid progress today—the hon. Gentleman might also have raised the issue of the interface between the driver and the road, and the technology on the road. As we move towards smarter roads, there will be an increasingly close relationship between the information received in the car from outside, as well as the information that is at hand within the vehicle. That is another area where there will be a connection to automated vehicles. We are already seeing the regular use of gantries across roads that provide information. The interaction between that information, the car, and the information that is available locally will, over time, become an increasing feature of driving.

This is another area in which regulation will—in exactly the way the hon. Gentleman described—need to address how that works for automated vehicles. The assurance I give him and others is that we recognise these challenges, we anticipate further work, we know that work is ongoing and it will be set out, both in the formation of international standards for a type-approval process that I mentioned, and in the regulation we will introduce that matches that development.

Photo of Clive Efford Clive Efford Labour, Eltham

I would like to take the Minister back to his comment that this Bill was designed to protect insurers against drivers who fail, or refuse, to upgrade the software on their vehicles. I think that what he really meant to say was that the Bill is here to protect the consumer, and that unless the consumer is acting wilfully and refuses to upgrade the car, they cannot be held responsible, and the insurers cannot use this Bill to wiggle out of their responsibilities and paying whatever they are responsible for. The Minister is aware is that his comments, which go on record in this Committee, could be used to interpret an intent behind the legislation, so how we describe things is important.

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

The hon. Gentlemen implies that those things are mutual exclusive. Of course, if someone intentionally—deliberately—goes about the business of not updating their vehicle, that creates a responsibility and a liability. That has ramifications of the kind that I described for insurers, but it also has the wider ramifications that he described. I do not think we are in different places on that.

Let me turn briefly to the comments made by the shadow Minister. Again, I can see why he makes that point, but as he knows, we will shortly discuss clause 5, which gives the right of recovery against the person actually responsible for the incident, whoever that responsible person is. We can probably deal with the matter he raises when we debate clause 5, rather than adding to this clause in the way he suggests. His intent is entirely understandable but I do not think this is the best place to make the amendment that he proposes. With that, and my commitment to take further the point that my hon. Friend the Member for North Warwickshire raised, and the more general commitment I have made, reflecting my original remarks about the ambitions of the Bill, the limits on those ambitions, and the development of further regulation, I do hope that the hon. Member for Kilmarnock and Loudoun and others will see fit not to press their amendments.

Photo of Alan Brown Alan Brown Shadow SNP Spokesperson (Transport), Shadow SNP Spokesperson (Infrastructure and Energy)

I have listened to the Minister and to the comments that have been made. Amendment 11 is still about putting additional responsibilities on the manufacturer, which seems to accord with some of the comments made by the hon. Member for North Warwickshire. The Minister agreed to take on board those comments, but I felt he was a little dismissive of amendment 11. I would like to press amendment 11 to a vote, but I will not press amendment 12.

Question put, That the amendment be made.

The Committee divided:

Ayes 8, Noes 9.

Division number 2 Seasonal Working — Accident resulting from unauthorised software alterations or failure to update software

Aye: 8 MPs

No: 9 MPs

Aye: A-Z by last name

No: A-Z by last name

Question accordingly negatived.

Photo of Karl Turner Karl Turner Shadow Minister (Transport)

Mr Bailey, when can we vote on new clause 9?

That is voted on separately at the end.

Clause 4 ordered to stand part of the Bill.

Clause 5