Automated and Electric Vehicles Bill

Public Bill Committee, 2 November 2017.

(Morning)

Listing of automated vehicles by the Secretary of State

Karl Turner (Labour, Kingston upon Hull East)

I beg to move amendment 1, in clause 1, page 1, line 10, at end insert—

“(1A) The Secretary of State must consult on and publish the criteria that they will use to determine whether, in their opinion, a motor vehicle is designed or adapted to be capable, in at least some circumstances or situations, of safely driving itself without having to be monitored by an individual.

(1B) The Secretary of State may not change the criteria without consulting vehicle manufacturers, insurers and other such persons as the Secretary of State considers appropriate.”

This amendment requires the Government to consult on and publish criteria for the definition of “automated vehicles” that will be used by the Secretary of State.

Karl Turner (Labour, Kingston upon Hull East)

It is always an absolute pleasure to serve under your chairmanship, Sir Edward. I am grateful for the opportunity to speak to the Bill generally and to the amendments tabled in my name, to which I will come shortly.

This is an exciting opportunity for the Committee to speak about the potential to liberate many people currently excluded from access to rural transport. The Bill also provides opportunities to improve personal transport arrangements, as well as air quality, which is crucial given the dire state of the environment and its impact on health. I begin by thanking the Minister personally for his collegiate approach to the Bill, and for his co-operation and assistance in the preparation for this sitting. He even allowed my staff access to his officials. It is genuinely appreciated.

Amendment 1 would improve the Bill, and I know that the Minister is intent on improving it. It would require the Government to consult on and publish criteria for the definition of “automated vehicles” that the Secretary of State will use. As the Committee can see, clause 1 as currently drafted puts the onus on the Secretary of State to define, in his or her opinion, what constitutes an automated vehicle, without having to consult the sector. In my view, the Bill would be vastly improved by a requirement to consult on and publish the criteria by which “automated vehicles” will be defined.

Secondly, the amendment would prevent the Secretary of State from changing the criteria without consulting vehicle manufacturers, insurers and other such persons as the Secretary of State considers appropriate. We ask for that consultation and publication of the criteria because it is crucial that manufacturers, vehicle owners and insurers know them, whether they are making, buying, warning about or insuring an automated vehicle, and whether the scope of the legislation applies to their vehicle. In the evidence session, the insurance industry welcomed the Government taking on the responsibility of saying what is an automated vehicle, but we are still concerned that the Bill as drafted leaves the Secretary of State with total discretion on what is an automated vehicle. We therefore tabled the amendment to provide greater clarity and to help the Government by ensuring that the relevant persons and organisations will be sufficiently involved, to inform the Secretary of State’s list of automated vehicles.

The Opposition believe that the additional clarity provided by the amendment would help to create a more reassuring environment and to encourage the development and uptake of automated vehicles. As I said, the amendment would also prevent the Secretary of State from changing the criteria without further consultation, and guarantee that the criteria used will be up to date and as practical as possible in a very fast-moving sector. We have rehearsed these matters previously so I do not want keep the Committee on this point for too long.

Clive Efford (Labour, Eltham)

It is a pleasure to serve under your chairmanship once again, Sir Edward. I have had a number of informal chats with the Minister as we have bumped into each other while wandering around the House. I appreciate his approach to the Bill. My amendments are genuinely to try to probe the area, which I find fascinating, of the interaction between artificial intelligence and human behaviour. Nowhere more than in our transport systems will this become more prevalent over the coming years. My amendments are to probe the areas where I think that that comes into sharp focus.

When we boil it down, we are legislating for vehicles that are driven by computer software, as we heard in the evidence. We heard from the witnesses on Tuesday that we are legislating exclusively for tier 4 and tier 5 of the five tiers. The tiers start with driver-assisted systems such as braking, steering and parking, through to automated vehicles that can switch between being driven by a human and by software at tier 3, which overlaps into tier 4, and to tier 5, which is purely automated vehicles. The legislation really challenges us as legislators, because by simplifying the insurance system we are being asked to enable our roads to become laboratories to sharpen that technology. We heard clearly in the evidence that there were different attitudes to what is taking place. When asked about tier 5 technology, Mr Wong, from the Society of Motor Manufacturers and Traders, said:

“As to when those level 5 vehicles without steering wheels are capable of performing end-to-end journeys—from my house in the village to my office in the city—that is anybody’s guess. That will probably be some time in the 2030s. It is quite complex.”––[Official Report, Automated and Electric Vehicles Public Bill Committee, 31 October 2017; c. 43, Q98.]

However, we then heard from Mr Boland of Five AI, who told us that automated vehicles would be on our roads in 2019, albeit in an experimental fashion.

This is a big challenge for us. We need to consider the software in great detail, and the Secretary of State needs to be given the power to set and oversee certain standards. Mr Wong referred to the report written by the Ethics Commission on Automated Driving for the German Federal Ministry of Transport and Digital Infrastructure. I am a bit of an anorak, so I have started reading that report, although I have not got through all of it in the last 48 hours. It makes fascinating reading. The commission’s approach is that the technology is there to improve safety, whereas our attitude seems to be that it is a technological advance to help industry, and that improving safety and social inclusion will be a by-product a long way down the line.

The operation of the software raises some ethical issues. I asked the witnesses about how the software would perform and take decisions when an accident is imminent. For instance, imagine a four-year-old toddler walking in front of a vehicle that cannot stop to prevent a collision. To the left is oncoming traffic, with the risk of a head-on collision; to the right are perfectly innocent bystanders on the pavement or at the bus stop—those are the vehicle’s options. Mr Wong noted that this was the “classic trolley problem” referred to in the German ethics commission’s report. The commission’s conclusion was that it is simple to make a decision when the choice is between property damage and human injury, but when the choice is between different types of injury to different road users or innocent pedestrians who are not part of the scenario, we move into a completely new area of morals and ethics. We have to be prepared for that; these situations will take place on our streets, and we need to legislate for them. We should give ourselves the opportunity to oversee this software before it is allowed on the streets. Amendment 8 would give the Secretary of State power over the software’s approval, and new clause 11 would set out the approval criteria.

Greg Knight (Conservative, East Yorkshire)

Does not clause 1(1) already cover what amendment 8 seeks to achieve? Paragraph (b) requires that the Secretary of State be satisfied that vehicles are

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

In making that decision, surely the Secretary of State would take into account the nature of the software.

Clive Efford (Labour, Eltham)

We would hope so. In the general terms in which the Bill is drafted, that is quite possible. Amendment 8 is a probing amendment, and I will not press it to a vote, but this is an area that as legislators we need to scrutinise. The software is key. That is what will be making the decisions and that is what will be driving the vehicle.

We seem to have started this discussion in terms of this being a mechanical problem about how to develop a piece of technology that can read all the different scenarios on our roads and react accordingly, but looking at the research—vehicles’ different speeds, any delay in the transition between a driver and an automated vehicle—an awful lot of the issue around the software is not referred to in the Bill. I am attempting to draw attention to that and to put in the Bill that it is the crucial area of the technology and we should pay attention to it.

In particular, new clause 11 refers to the moral argument, which goes back to the point about the choice—the choice between property and injury is an easy moral question to answer, but then we might have to make a choice between two scenarios on the road. Mr Wong referred to a “minimal risk manoeuvre”, which sounds fine as an answer in Committee, but a minimal risk manoeuvre might be the result of a choice between injuring one party or another in a risk situation on the road, and that is a serious moral dilemma. How do we decide on the type of software, choices, algorithms, or whatever we want to call the calculations that will undeniably have to be made in the vehicles? It is not possible in all scenarios, as was described to us, for a vehicle simply to come to a safe stop. Some situations will be unavoidable.

At the experiment the Minister visited down in Greenwich, where automated vehicles are being tested, there was an incident in which someone pushed a plastic chair out in front of the vehicle. The vehicle did not stop and it hit the chair. That was not a scientific test, but it demonstrated that there are circumstances in which things will happen. The vehicles will have to make choices in such circumstances and we should be legislating for that. We should at least give ourselves the power to be able to react and respond in future as the technology develops.

I am not arguing against that technology—it is something that has arrived, and its time is here. As I was discussing with the Minister the other day, that capacity exists in air transport. We could fly passenger planes and they could take off and land perfectly safely without a pilot on board. In an emergency situation, they could be flown remotely by someone in air traffic control. If that capacity were tested in the market, however, all the evidence suggests that people would not buy a ticket, in spite of the fact that almost the entire flight of any flight that anyone undertakes today is done by a machine—by the technology—and some of that technology even shuts the pilot out now, because having the pilot interfere with it is not safe. We do not have that capacity in our air industry, however, because of public opinion.

The House of Commons Library tells me that the air industry would save £31 billion, so there is a big incentive for it to have that capacity, but it has not. We are legislating to have it on our roads, but we are not legislating to control the key bit of the technology, which is the software. That is why I tabled my amendments.

Oliver Letwin (Conservative, West Dorset)

Before I launch into the subject, Sir Edward, may I seek your guidance on a question of procedure? I want to make some points that I wish to bring to the Minister’s attention. They relate to the amendments, but more precisely to the clause. Shall I make those points in the stand part debate or now?

Oliver Letwin (Conservative, West Dorset)

Thank you, Sir Edward.

As the Minister knows, two specific issues in the Bill concern me and led me to seek to be part of the Committee. One relates to the question of the strict liability of insurers when the vehicle is operating automatically, which of course relates to the software and its safety—the subject of this group of amendments. I have suggested to the Minister two possible approaches to resolving that problem, which was exposed in our evidence sessions. One of those relates to clause 1(1) and would probably require a somewhat different amendment from those that have been tabled, albeit broadly of the same kind. Let me first explain the problem and then try to suggest the solution.

We established clearly from the insurance industry representatives we questioned that, as the Bill is currently drafted, strict liability will attach to the car rather than to an individual, which is an entirely new phenomenon in insurance law. Let us suppose that there is not a fundamental legal problem with strict liability attaching to the insurer of a car. I make that assumption, although I do not necessarily think that it is a safe one; that may be explored further in the other place by lawyers with much deeper acquaintance with insurance law than I claim to have.

Supposing that that is a feasible arrangement, we then face the question: at what point should that strict liability clock in? That would not be a material question if the machine was never driven by a human being but was driven only by the machine itself. As the hon. Member for Eltham pointed out, that was raised during the evidence session by the rather enterprising group that will create service operations on London’s streets out of what are, in effect, level 5 vehicles way ahead of the schedule that other witnesses suggested would apply. Such vehicles clearly will never have a human being driving them; they will be automated objects that human beings will get into. As it is currently drafted, the Bill will therefore create a strict liability for the insurers. On the happy assumption that that will work legally, insurers will insure those vehicles, they will discover whether that is a very expensive proposition and that will get built into the service price. I am not worried about that from a legislative point of view.

However, I think that the Minister would agree, as all our witnesses seemed to, that it is extremely likely that, in parallel with that rapid roll-out of highly automated level 5 items, for perhaps many millions of motorists there will be a gradual progression—not necessarily strictly demarcated as level 3, level 4 and so on—from vehicles that are largely driven by a driver but somewhat assisted by the machine, to vehicles that are driven by the machine under more and more circumstances but are sometimes driven by the driver.

I certainly do not think that we should legislate on the assumption that we know what the future will look like, but it is highly likely that there will be a stage at which there are vehicles that, for example, are well designed to operate on motorways on an automated basis. The nation may benefit hugely from them operating in that way, because it is safer and allows much shorter distances between vehicles and therefore much more intensive use of motorways, which diminishes capital investment in the motorway system, improves safety and prevents the environmental damage that building more motorways would occasion, so that may well in fact become compulsory at some point. However, those very same vehicles may be ill-designed to deal with country roads, city roads or other kinds of road, so they may well have a function that enables them to be switched back and forth between automated driving and being driven by the driver.

We heard rather different things from witnesses about that switchover. To tell the truth, I think that that is because nobody really knows how it is going to operate. The history of technology is littered with prophecies from experts about how future technologies will operate that have proved to be false, so the Committee would be wise to assume that we do not know, and will not know when legislating, how exactly the switchover between driver and automated vehicle will occur.

Mr Wong suggested in an evidence session that the vehicle itself will offer up to the driver the opportunity to switch over to automation in circumstances in which the vehicle is sufficiently intelligent to know that it is safe for it to take over the driving, and that it will never otherwise offer up that opportunity. It is perfectly sensible that if the vehicle offers itself to the driver to take over operation, and if the driver allows it to take over operation, the vehicle becomes the driver, and the strict liability of the insurer attaches to the vehicle and not any longer to the person. That would be fine.

However, if, as some other witnesses seemed to think was the case, it is the driver who will, at least in some circumstances, make the decision of whether to switch over to automated use, this becomes a highly material question: has the driver made that decision in a reasonable and sensible fashion? The reason is that if the driver has not made the decision in a sensible and reasonable fashion, and if the insurer of the vehicle is nevertheless bound to have strict liability for the vehicle taking over the action, insurers could be faced with enormous bills in circumstances in which what they were actually doing was facing a bad decision by a person whom they had never insured; they had insured the vehicle and not the person. That is the problem we need to address, which brings me to the question of clause 1(1).

John Hayes (Conservative, South Holland and The Deepings)

I am delighted that my right hon. Friend has looked into these matters with typical assiduity. I am also delighted to serve under your chairmanship, Sir Edward. I briefly say that, as I have risen for the first time. I know that your sagacity in the Chair will match the warmth of your friendship and the generosity of your home, which you have offered me just this week at a dinner party. Anyway, let us leave that to one side.

John Hayes (Conservative, South Holland and The Deepings)

I like dancing on the head of pins—I think it is an appealing thing to do—but we must be careful to avoid it in this Committee, because time does not permit it, many hon. Members want to contribute and there is a slight risk from doing so in this case. I will make this argument as quickly as I can. The key issue about an event that took place while the vehicle was in autonomous mode is not the point at which it went into autonomous mode, but the events at the point at which the incident occurred. If we can be very clear that the vehicle was being driven autonomously at the time of an incident or accident, that becomes the salient issue, rather than what might have happened five minutes or half an hour before, when the driver switched it to autonomous mode, because of course the circumstances of its being autonomous will then become absolutely clear, and at that point the liability is not in question.

I take the point that whether the vehicle should have been in autonomous mode may be material and I shall explore that more when I respond to the debate, but I think that it is what happens at the point of the accident that is of greatest concern. I just put that to my right hon. Friend the Member for West Dorset for further consideration.

Oliver Letwin (Conservative, West Dorset)

I have considered that and I think that is the assumption. My right hon. Friend has well exposed the logic that underlies the current drafting, and it is in error, in my view, because although of course the material moment is the moment of the hypothetical accident, the cause of the accident is the material question from the point of view of the operation of our insurance system, and if the cause of the accident was a bad decision by the person, there is an illogic that will eventually undo all the good we are trying to do if nevertheless the insurer of the vehicle has strict liability. The fact that it may have been five, 20 or 55 minutes before the accident that the person handed over control to the vehicle is irrelevant if the basis on which the person handed over control was wrong and the person made the wrong decision. It seems to me that the question we need to address is this: is it possible that the person should have made such a wrong decision, or have we eliminated that possibility? That is what I want to get on to, because that is where clause 1(1)(b) needs to have a (c).

Greg Knight (Conservative, East Yorkshire)

Is it not highly likely that this sophisticated vehicle will prevent the driver from seeking to put the vehicle in automated mode if it is unsafe to do so? It will reject the request.

Oliver Letwin (Conservative, West Dorset)

I am grateful to my right hon. Friend for asking that question because it leads me to exactly the point I want to raise in relation to 1(1)(a), (b), and, as I think it may need to be, (c).

It is indeed possible that the proposition that my right hon. Friend the Member for East Yorkshire has put, which is exactly the proposition put by Mr Wong in the evidence session, will happen and that vehicles that are capable of genuine automated driving will have sufficient intelligence built in so that they will offer to take over only if it is totally safe. If that is the proposition on which the Minister wishes to base the legislation, bearing in mind that we do not actually know at the moment whether the technology will go in that direction, it seems what is needed is an amendment or a new subsection—clause 1(1)(c), or thereabouts—that makes it clear, and this relates to the Opposition amendment, that the Secretary of State will have the power to approve a fully automated system only if the Secretary of State has have verified that that system will always safely determine its own capability to take over the car.

John Hayes (Conservative, South Holland and The Deepings)

rose—

Oliver Letwin (Conservative, West Dorset)

I will give way, of course, in a moment.

Such a course of action is fine and would solve the problem that I have advanced, because the Minister or Secretary of State, or an expert acting on his or her behalf, would have verified in advance that the machine was capable of taking over and would take over only under safe circumstances. Before I give way to the Minister, I want to point out that that is using the law to limit the technology, and the history of the approach to that in our country’s legislation has been very bad. I will not go into all the history, but I am happy to write the Minister a memorandum about it if he wants. I once wrote an article about this. There is a very long history of Parliament trying to prejudge the technology, legislating on the assumption that it will be only that technology, mandating therefore only that technology, and discovering that there is not any of it and that people elsewhere are manufacturing things that we do not get because they do not fit our legal system. It is not the route I recommend, and I will come back to that when we get to clause 2. It is a possible route, however, and one that the Minister should at least consider.

John Hayes (Conservative, South Holland and The Deepings)

I will speak more about my right hon. Friend’s last point when I respond to the debate as a whole, because of course it relates closely to the shadow Minister’s point about how far we define what we do now. The Bill is an attempt to thread a course between creating sufficient certainty to establish a framework to allow further development and, on the other hand, doing exactly what my right hon. Friend has mentioned in trying to predict a future that may not come to pass. He is right to raise that and I will deal with it in greater detail.

On the specifics of his point about liability, I draw his attention to clause 3(2), which we will debate later. You will not let me debate it now for that reason, Sir Edward, but clause 3(2) specifically talks about the subject that my right hon. Friend describes, because it draws attention to the possibility of an accident being

“wholly due to the person’s negligence in allowing the vehicle to begin driving itself when it was not appropriate to do so.”

That is very much what my right hon. Friend speaks about, and it is why we put it in the Bill. He makes a separate point—a good one—about technology that kicks in of its own accord because the technology, the software, determines that it is better at that point for the vehicle to be driven autonomously. We will explore that in greater detail as we consider the legislation. I simply draw his attention at this stage to clause 3(2).

Oliver Letwin (Conservative, West Dorset)

I recognise that I am treading on your indulgence, Sir Edward, but, as the Minister has mentioned clause 3(2), I will briefly point out, although no doubt we will discuss this later, why I do not think that it solves the problem. It is possible that it is susceptible to redrafting so that it will, but it is ill drafted if the intention is to solve the problem I have raised. In the first place, it says, “wholly”, in that it is

“wholly due to the person’s negligence”.

That is an almost impossible thing to establish. As currently drafted, it does almost no heavy lifting at all. I think I know why a parliamentary draftsman has nevertheless inserted the word “wholly”, because, like the Minister, I have had quite a long experience of dealing with parliamentary draftsmen on numerous Bills. I know that they think through carefully the question of what happens if we do not put in a word such as “wholly” under these circumstances.

Oliver Letwin (Conservative, West Dorset)

I am grateful, Chair. I will leave it at that so far as clause 3(2) is concerned, but I will no doubt come back to it.

Finally, if it were the intention of the Minister to add to clause 1(1), rather than to do something to clause 2 or clause 3, which we will come to later, it would be important to establish whether the view taken by Mr Wong—that these machines will always be designed in such a way that they decide on a safe basis whether to take over—is a consensual view across the industry in every country or a happenstance view of some particular technologist.

Clive Efford (Labour, Eltham)

Again, the right hon. Gentleman is touching on the area of ethics—it is covered in the excellent document written by the German Transport Ministry—which is about freedom of choice and the question of whether the individual driving the car should succumb to the superior knowledge of the software that has been put in the vehicle and have control of the vehicle taken away from them in certain circumstances. We have not discussed that issue, but it could arise as a consequence of the Bill. That is why I suggest we look carefully at the software. There is a major question about the freedom of choice of an individual driving their car if we allow the technology to take decisions away from the driver.

Oliver Letwin (Conservative, West Dorset)

Yes, I agree with the hon. Gentleman. Sharing his anorak tendencies, I too have been interested in the German case. In fact, I spent some while talking to German officials and motor manufacturers about the issue. Actually, I think there is a serious problem—this is the final point I want to raise—with clause 1(1)(b), which relates specifically to the questions of ethics that he raised. I want to draw the Minister’s attention to the word in clause 1(1)(b), “safely”. [Interruption.]

Oliver Letwin (Conservative, West Dorset)

Undoubtedly so—it is No. 10 calling the Minister to higher things, yet they may not be of such great significance to our future as the Bill.

In clause 1(1)(b), the Secretary of State is asked to opine on whether the vehicle that is being approved and put on the list is capable of “safely driving”. An awful lot will hang on that word “safely” in what will probably be a rich jurisprudence over many decades. The hon. Member for Eltham is rightly drawing our attention to the fact that “safely” in this context could mean something technical—is the machine technically sophisticated enough to deal with circumstances—or it could mean something much deeper. It could mean the ethics and applied intelligence built into the machine so as to produce views or choices that accord with the social preferences of Parliament about, in trying to minimise the effect of an accident, who is to be sacrificed under circumstances where two different groups of persons could be sacrificed. Alternatively, it could mean any other set of very complicated ethical choices.

I of course bow to the Department’s legal advisers, parliamentary counsel and any external counsel, but my own hunch is that there is not enough jurisprudence available to guide us on whether “safely” will bear that amount of weight. I wonder whether the Minister should consider at least giving the Secretary of State the duty in due course to consider not just whether the machinery is capable of driving “safely”, but whether it is capable of driving—I do not know quite what words parliamentary counsel would want to choose—ethically or properly or in a socially desirable way. That is an odd kind of question to ask about a machine, I grant, but these are odd machines we are considering.

The hon. Member for Eltham is on to a good thing with amendment 8, even if he does not press it to a vote, because he raises an issue we will have to address. What we all do not want to get to—I think the Committee is united in this—is a sort of red flag situation where machines have been authorised because they have a large amount of technological wizardry in them that makes them highly sophisticated, but they make choices that any sane Parliament or Government, or indeed public, would regard as wholly morally objectionable, socially undesirable or both.

We need to think very hard about ensuring that the legislation at least lets our successors—whoever may be Secretary of State at the time—consider that range of issues when approving something. Otherwise, the Secretary of State will say, “Oh well, this is technically okay, but I don’t like the look of what it is going to do by way of the kinds of decisions it is going to make,” and some adviser will tell that Secretary of State, “Sorry, Secretary of State, it is ultra vires for you to refuse this vehicle on the list just because it is going to mow down young people in preference to old people”—or something—“because you are only allowed to determine safety, not ethics.” It is quite important that we get that precise wording right. I am grateful to you for your tolerance, Sir Edward.

Matt Western (Labour, Warwick and Leamington)

I want to pick up the points made by the right hon. Gentleman. I was trying to think of parallels to try to understand this and imagine what it might be like in five or 10 years from now, and I guess I was likening it to the introduction of, say, cruise control and how that works with the insurance industry. If a driver instigates cruise control in an urban area and sets it at a speed that is in excess of the limit on that roadway, where would the responsibility and liability fall? The industry and technologies are improving at a pace. As was said in the Chamber on Second Reading, it is difficult to imagine where we will be, but I imagine that essentially the liability should be with the driver. If the driver has introduced the cruise control or automated driving system—in whatever form that may take—that is their choice just as it is their choice to manoeuvre from one lane to another today, which might ultimately result in an accident.

Perhaps I am not appreciating the fine nuance of the debate, but I would have assumed that, ultimately, the liability has to be with the driver. In the event of an accident, the telematics would be able to provide data to the insurance industry to prove things one way or another.

Iain Stewart (Conservative, Milton Keynes South)

I rise simply to ask for a point of clarification from the Minister when he responds to the debate. I anticipate the answer to my question will be yes, but I would like to have it on the record. I anticipate that, as well as motor cars, the list of vehicles that the Secretary of State will compile and update will include lorries, buses, emergency services vehicles and other vehicles for which the driver would require an HGV licence or a public service vehicle licence. I would like clarification on that. For instance, I anticipate that, with technology, HGVs could be driven normally for a large part of a journey but then form part of some road train on a motorway with other similarly equipped vehicles. As I said, I would like clarification that the list will include those vehicles as well as private motor cars.

John Hayes (Conservative, South Holland and The Deepings)

To paraphrase Bernard Shaw, I do not know whether I was born too early or born too late, but I do know that I was born to dare to dream of a future inspired—indeed shaped—by the past but not constrained by it; a future where we can achieve wonder. Part of that journey will be assisted by technological change. The technological change we are considering, as the Opposition spokesman said, could liberate many people who have not had easy access to private transport for a variety of reasons. That has extraordinary and wonderful prospects. As we consider the Bill, we should discuss it, as the shadow Minister did, in that context.

However, the Bill presents challenges, which are highlighted by clause 1 and the amendments, as well as by the contributions that we have heard from Committee members on both sides. In essence, the challenge, as I explained briefly when I intervened on my right hon. Friend the Member for West Dorset, is to provide a legislative framework sufficient to give certainty, or at least a degree of certainty, to an industry engaged in research and development and further investment. On the other hand, being too specific in a highly dynamic area would be doing what he warned us against—trying to predict technological change, in the way that he described Governments doing in the past with unfortunate consequences.

That is our mission, and I am determined to do so in as convivial a spirit as possible; I am grateful to the hon. Member for Kingston upon Hull East for his generous remarks. Frankly, whoever was in government would face these challenges, and would be bringing a Bill of this kind to the House. It is perfectly appropriate that we should discuss it in as consensual a way as possible.

The job of the Opposition is to scrutinise such measures; indeed, it is the job of my right hon. and hon. colleagues to do so too. Those who have served on few Standing Committees and had little experience of legislation—there are some, who are newer Members of the House—will not have encountered a Minister quite like me. I am one of those rare creatures who are happy to listen to debate, hear suggestions and take them on board, be guided by them and concede where we have got it wrong. I am all the more so on issues such as this, because we are charting a difficult course, as I described.

The last time that we debated these matters—this is directly relevant to the amendments, Sir Edward, just in case you were thinking it might not be—we could not proceed with that Bill, because the inconvenience of a general election stopped us doing so. We considered the issues that we are beginning to debate now. They involve the creation of a list of automated vehicles to provide the public and the industry with the kind of clarity that I have described, and the relationship between those vehicles and new insurance provisions. Essentially, inasmuch as the Bill deals with autonomous vehicles, it does so in order to create a secure insurance market to allow the further developments that I mentioned.

The Bill suggests that the Secretary of State will create such a list to give clarity about insurance by applying the definition in clause 1(1)(a) and (b). We state that automated vehicles are those

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

The answer to my hon. Friend the Member for Milton Keynes South is that that includes other vehicles. He mentioned HGVs; he will know that some R and D is being done on those kinds of vehicle. Given what we already know about the work being done in this area, private cars might not be the first vehicles to become automated. I am not making a prediction, but it could be vehicles of the kind that he described. The best example that I can think of is the shuttles at airports that one uses to get to the terminal. We do not think of them as vehicles in the same way that we think of a car that we might drive from our home, but they are vehicles. They travel on a pre-ordained route, rather like the vehicle that I saw when I went to Greenwich and that I mentioned in earlier consideration. That was a fully autonomous vehicle driving on a single road from two set points. That might be the kind of first steps that are taken as the technology develops.

I emphasise that the technology is in its early stages—not quite in its genesis; more in its infancy. The standards by which these vehicles will be approved for safe sale and use are still being discussed internationally, so another challenge for the Government is to ensure that we—as a nation, as a polity and as a Parliament—do not jump ahead of those international standards. That is another ball that we are juggling, if I may use those terms. The international standards are developing because the research and development of the kind that I have described are happening across the world. Many countries are engaged in it; indeed, many of the businesses are pan-national, so they work in a number of different countries. This will be discussed and is being planned for by the United Nations Economic Commission for Europe, in which the UK plays a leading role.

The standards are still being developed and will form the basis of the type approval process, which is well established in the motor industry. We already talk routinely about type approval; it has been a long-standing part of how the industry works. The critical thing is that for a vehicle to meet to that type approval process, rather like a non-automated vehicle now, to be sold for safe use on roads, it must meet those standards. The core requirement of safety is implicit in the development of those standards, which will be international.

Oliver Letwin (Conservative, West Dorset)

My right hon. Friend mentions the core requirement of safety. What does he understand “safety” or “safely” to mean in this context, and what advice has he received about whether it can bear the burden of distinguishing between an ethically proper set of choices by artificial intelligence and an ethically improper set of choices?

John Hayes (Conservative, South Holland and The Deepings)

That is a very big question indeed. It is the one that, in a sense, was first raised by the hon. Member for Eltham in the evidence session and on Second Reading, when he painted the picture of a scenario where a human being faces an ethical dilemma while driving. I will paraphrase the example for the sake of brevity: a child runs into the road and the driver has the choice of hitting the child or swerving and possibly causing a more catastrophic accident. That is a momentary judgment that any driver makes. In the end, it is a practical and ethical judgment, is it not? We could have a very long debate. My hon. Friend on my right, the Whip, may be my former Parliamentary Private Secretary, but he will not be entirely indulgent of me if I engaged in that very long debate, because of course one could extend it—

Clive Efford (Labour, Eltham)

rose—

John Hayes (Conservative, South Holland and The Deepings)

Ah! We are indeed going to extend it.

Clive Efford (Labour, Eltham)

Let me invite the Minister along that path a little. The right hon. Member for West Dorset raised an important question—I did not word it as succinctly as he did, but he has more experience of drafting legislation than I have, so that is no surprise. If morals or ethics are not specifically referred to in the legislation, a sharp-witted lawyer may later argue that the issue is not ethics or morals, but safety, and that it is therefore ultra vires to use the legislation to regulate that area of the technology. I urge the Minister to look at this issue again and consider amending the Bill to address it.

John Hayes (Conservative, South Holland and The Deepings)

Let me try to answer the hon. Gentleman and my right hon. Friend the Member for West Dorset in two ways. First, I draw attention to something that Mr Wong said in evidence on Tuesday:

“May I point something out? I mentioned autonomous emergency braking. It has been demonstrated that the technology is improving all the time. Previously, autonomous emergency braking worked perfectly at 30 mph, which is urban speed, but it is becoming increasingly sophisticated. AEB can work well even at 50 mph. It would not surprise me if the technology improved in years to come”.––[Official Report, Automated and Electric Vehicles Public Bill Committee, 31 October 2017; c. 44, Q103.]

The technology is improving so rapidly and dramatically that in the scenario painted by the hon. Member for Eltham, an automated vehicle is likely to change lanes and—as in Mr Wong’s example—brake to ensure safety.

The representatives of the insurance industry stated in their evidence that the industry believes there will be fewer accidents, because the judgment of an autonomous vehicle will outpace that of a human being. I use the word “judgment” for technology with caution, as my right hon. Friend the Member for West Dorset used the word “ethics” with caution, but the judgment of the software driving the automated vehicle will be more acute and, in the end, safer. These machines are likely to be less prone to error than human beings, so there will be fewer accidents; the vehicles will be safer and therefore easier and cheaper to insure. We heard that point repeatedly in the evidence session. We can be confident that that is the direction of travel—I apologise for using that rather hackneyed phrase in this context—but we cannot be sure how quickly we will get there or exactly what it will look like. I would be a very bold man if I made such a prediction.

Oliver Letwin (Conservative, West Dorset)

I, too, listened to Mr Wong and have re-read the part of his evidence that the Minister quotes from, but it is wholly irrelevant to our point. I thought it was extremely instructive that Mr Wong, who is clearly a very great technical expert, completely failed to understand the issue. The Germans have begun to understand it, but the Bill does not genuinely or seriously address it.

The Bill is drafted as if artificial intelligence were the same kind of thing as speed control. It is not, and that is a very important error underlying the Bill’s drafting. Speed control is a technical matter, and we could go much further with technical development and still be in the technical arena in which safety is the only question, because the ethical judgments are made exclusively by the human drivers. With artificial intelligence, as the hon. Member for Eltham rightly says, we are moving into a terrain in which the machine will make the kind of decisions that Parliaments and human beings make. These are questions not of safety, but of judgment about the right outcome under difficult circumstances.

I ask the Minister to go back to his Department and talk to its lawyers about whether jurisprudence will deliver to him or his successors the ability to refuse approval to a piece of artificial intelligence that, either directly or through its learning processes, will or could have the effect of producing totally dysfunctional anti-utilitarian results by making judgments that are technically perfectly safe but that just happen to take the view that, for example, wiping out a group of three-year-old schoolchildren is better than wiping out a 98-year-old crossing the road. That is a very difficult judgment for a human being to make, but it is the kind of judgment that Parliaments have to make, and I think that at the moment it is very clear in the Bill that it would not permit a Secretary of State to prevent type approval for a machine that was designed in such a way that there could be those very bizarre and undesirable results, and I am sure that that is not what the Department or the Minister wants to achieve.

John Hayes (Conservative, South Holland and The Deepings)

Let us not overestimate how far this Bill—I am being very particular about my words—intends to go. This Bill is about ensuring that victims of collisions caused by autonomous vehicles get quick, easy access to insurance compensation in line with conventional processes. What we heard in the evidence and what we debated when the Bill was in its earlier incarnation was that it was important for the insurance industry, and therefore for the further development of this technology, that we were clear about that—there would be no difference, from the perspective of the person who owned the vehicle, in how they went about making a claim.

There is a much bigger debate, which will clearly have to be dealt with in legislation, in regulations, in type approval—in a whole range of other things—about some of the other matters that the hon. Member for Eltham and my right hon. Friend the Member for West Dorset have raised. If they are both right that we will get to a point at which the machine makes what is in effect an ethical judgment—I am trying to use words very carefully; it is very obviously the machine making ethical judgments, but I do appreciate the strangeness of it—clearly that will have to be taken into account at a future point in the legislative process. I do not think this Bill is the place to do it; I just do not think it can do it, because we do not yet know enough.

We are back to my first point, about the line we are trying to tread between what we can do now with certainty and what we might do in the future in a world in which we can as yet only imagine what might occur. If my right hon. Friend will permit me to say so, perhaps the Hegelian synthesis, where we might meet between what appears to be my thesis and his antithesis, is that this Bill is a starting point—a first step along, as I have said, a long road.

Oliver Letwin (Conservative, West Dorset)

I am very grateful to my right hon. Friend for giving way. I entirely accept that this Bill is just the starting point, but I think he is missing the point that I am trying to make about what starting with this language—with just the word “safely” and no reference to wider considerations—will do to his successors.

There is no point in having the Secretary of State empowered to make a list unless Secretaries of State are actually going to make lists. There is no point in empowering them to make lists of automated vehicles unless those lists are going to relate to automated vehicles. Those automated vehicles will have artificial intelligence built into them; they cannot be automated otherwise. Therefore, the Secretary of State, who is making the list in the first place, which this Bill provides for—not some other Bill, but this Bill—will be constrained by the terms that the Bill sets for what basis they can use to make the list. That is why the shadow Minister has raised questions about the criteria, and why we are having this debate in the first place. Surely, therefore, we need to empower—I am not suggesting that we in any way oblige—later Secretaries of State to consider, inter alia, whether the machines that they are putting on the list are actually murderously safe or good and safe machines. At the moment, they can decide only whether it is a safe machine. If it happens to be safe in the sense in which Stalin could “safely” eliminate large sections of his population, the poor old Secretary of State would, as I construe it—the Minister has not given us any indication that he has had advice to the contrary—be prevented from—

Oliver Letwin (Conservative, West Dorset)

No, no, no.

John Hayes (Conservative, South Holland and The Deepings)

I am, as ever, guided by you, Sir Edward—having already cited your sagacity, I could hardly be anything other. I am delighted that we managed to get Stalin and Hegel into the same exchange. You will not get that in many Committees, Sir Edward. I am thinking about where we might end up, but I am prepared to live with that. It is important for safety, which in the end is a baseline factor, as I think my right hon. Friend will agree. However, there is a point about ethics. The advice I have received is that no vehicles that are not considered safe and ethical will be allowed on the market and therefore are not for consideration on the list.

Oliver Letwin (Conservative, West Dorset)

Safe and—

John Hayes (Conservative, South Holland and The Deepings)

Safe and ethical. I have received advice; I like taking advice and not taking it. Before I make that my definitive position, I want to reflect a bit. If we were to say no to the advice that was not safe and ethical, I want to be absolutely clear what ethical means. We know what safe means. We can draw on existing practice in respect of type approval. We know what measures of safety are about, but when we get to measures of ethics, we are in an altogether more challenging area. That is why I will reflect a bit on the characteristics. This is an incredibly interesting debate, by the way, and very useful.

Karl Turner (Labour, Kingston upon Hull East)

Will the right hon. Gentleman give way?

John Hayes (Conservative, South Holland and The Deepings)

I will give way briefly, but I must make progress or I will get into real trouble.

Karl Turner (Labour, Kingston upon Hull East)

I am obliged to the Minister for giving way. Will he concede that the right hon. Member for West Dorset and my hon. Friend the Member for Eltham are absolutely right that there is huge potential for legal argument about what is actually safe driving? There will be a debate around that that could end in litigation. No?

John Hayes (Conservative, South Holland and The Deepings)

Yes, I agree. I think that is precisely right. As I said a moment ago, that is the significance of the debate. We are now at one in that there needs to be a list and that needs to be qualified. We have made some changes, which I will deal with in a second, since we first debated these matters. In his first contribution to our consideration, which now seems a long time ago, the hon. Gentleman spoke of consultation. I do not want to constrain the identification process or be too precise about the criteria, for the very reason that we have all been discussing, but it is right that a consultation is an implicit part of the continuing consideration of this. I am happy to say that that has to be part of it. As the technology develops, given what I have said about dynamism, there would have to be ongoing communication about the change in character of the technology and what that meant.

The safe functioning criteria are more straightforward. This is about a marriage between software and the machine. The machinery certainly needs to be safe. We drive machines now with internal combustion engines that are not fundamentally different from their early ancestors. So we know that the machine needs to be safe. The existing provisions in the Bill are clear that the list can comprise at present only vehicles that can be legally used on the roads. Having reflected briefly, I will reflect more—I am in reflective mode, as the Committee can tell. Perhaps it is about what we do in regulations. There might be an opportunity to qualify or clarify through regulation how the list develops.

Matt Western (Labour, Warwick and Leamington)

Will the Minister give way?

John Hayes (Conservative, South Holland and The Deepings)

I will give way to the hon. Gentleman in one second. My right hon. Friend the Member for West Dorset made the point that if we are too narrow in what we put in this legislation, even though it is a first step on the road, it may make the second, third or fourth step more difficult. That is the essence of his point, which he came to in the end. Either he focused his argument more precisely at the end or I was not bright enough to grasp it at an earlier stage of the argument, but that seems to be the essence of what he was saying. That is the bit that I want to think more about. I think that we are all happy that this is not the end of this process, but we must make the beginning of the process fit for purpose. That is essentially where we are.

Let me try to get through some more of my pre-prepared notes rather than extemporising, as is necessary when we have proper dialogue and scrutiny.

John Hayes (Conservative, South Holland and The Deepings)

I will not go around in circles; I will come to a brief conclusion.

As I said, I am not sure that it would be appropriate to be too precise about the criteria. The only scope that the Secretary of State will have to list a vehicle is by determining whether it meets the safety definition. If it does, it will be included on the list; if it does not, it will not. There is no discretion to make a decision outside those parameters; the power is merely administrative and is not a discretionary legislative power. That is so we can be clear about why vehicles need to be on the list.

The defined vehicles will not be covered by our current insurance framework and will therefore need new, specific insurance products. That is the point I was making about the limits to what we are trying to do now and the essence of why they matter. This is about allowing the further development of appropriate insurance products that are not out there now, because if they are not out there in the future that will inevitably limit how far we go with the further development of vehicles.

I promised to give way to the hon. Member for Warwick and Leamington and I have not done so. That was very discourteous of me, so I do so now.

Matt Western (Labour, Warwick and Leamington)

I thank the Minister. It was not a discourtesy; I was waiting and listening. I want to pick up the regulatory framework and where that takes us. The interpretation of safety is all about the criteria and what is set by, say, the Transport Research Laboratory. Let us look, for example, at the standard for an acceptable braking system. It is what the Secretary of State, through the Department for Transport, ultimately determines to be the criterion for, say, acceptable responsiveness—whether that is a swerving action by a vehicle or a braking system—that gets measured and therefore determines whether a vehicle is acceptable for inclusion on the list. We are obviously at the first stage, but the next stage will be determining those criteria for deeming a vehicle acceptable for UK roads. I hope that that is helpful; I imagine that a very technical regulatory framework will need to be determined.

John Hayes (Conservative, South Holland and The Deepings)

Yes, I agree. That is precisely why we should develop criteria down the line in a regulatory way, as the hon. Gentleman suggests, and why we will need to do so mindful of the international standards that I described and the ongoing debate that is taking place internationally through well-recognised bodies. I agree. This is a highly dynamic and dramatic series of changes, if I might say so.

My final point is that the character of the amendments and of our debate is about the Secretary of State’s interpretive powers. We have to be careful about extending the interpretive scope of this part of the Secretary of State’s responsibilities. This is yet another line to walk and not to cross. The criteria for inclusion on the list need to be sufficiently clear as not to allow any doubt in the insurance market about precisely what kind of vehicle might be on the list and therefore what kind of vehicle might or might not be insured. I am therefore doubtful about extending the interpretive scope.

We need to be clear which vehicles and which software can safely be operated in automated mode. The Secretary of State will therefore be able to transpose approved vehicles on to the list to ensure that our domestic insurance framework is based on and clear about which vehicles need which insurance products. It would not be appropriate to legislate at this early stage, as amendment 8 and new clause 11 suggest, to set an approval procedure or safety criteria until we know what the international standards are. The hon. Member for Warwick and Leamington is right; we will almost certainly need to do that further down the line as those international standards become clearer. Whether that is in other legislation or more likely in regulation—that is how I would like to go—is no doubt something we will debate over the course of the coming days.

In essence, I return to my core argument: the Bill is a starting point to creating greater clarity. It is not by any means the end of what I hope—I return to my very early words—will be a wonderful story.

Karl Turner (Labour, Kingston upon Hull East)

I accept that the Bill is the mechanism for getting the ball rolling, but the more I listen to the debate, the more I am persuaded that we need something on the face of the Bill to ensure that there is consultation and criteria.

John Hayes (Conservative, South Holland and The Deepings)

I always try to avoid contumely—I think that is a well-known fact about me—but I have said I will reflect on what the hon. Gentleman and my right hon. Friend the Member for West Dorset said. I have said that consultation is an implicit part of this process. I implore the hon. Gentleman to avoid contumely and withdraw his amendment.

Karl Turner (Labour, Kingston upon Hull East)

I will not withdraw the amendment. With your leave, Sir Edward, I will press it to a Division.

Liability of insurers etc where accident caused by automated vehicle

Clive Efford (Labour, Eltham)

I beg to move amendment 9, in clause 2, page 1, line 22, at end insert—

“or by an automated vehicle when transitioning between driving itself and being driven by a person,”

This amendment would ensure that the liability for accidents caused by an automated vehicle that is transitioning between driving itself and being driven by a person would be the same as the liability for accidents caused by an automated vehicle when driving itself.

Clive Efford (Labour, Eltham)

I hope we will not take as long on these two amendments as we took on the previous group, although it was a fascinating discussion. The amendments follow on from that, because they relate to the transition period and the third of the five tiers that go from driver-assisted systems to full automation. Tier 3 is where the vehicle can transition from being fully automated to being driven by the driver, and vice versa.

Various pieces of research into the issue have come to different conclusions. In the evidence sessions, we heard that Audi had carried out some research at different speeds and come to the conclusion that there should be a minimum of 10 seconds in that transition period. The Venturer research came to slightly different conclusions, but all the research points to the fact that this is a problematic area in automated vehicle technology. It can take a deal of time for a driver to become alert. Mr Wong described to us various alarms that alert the driver to a vehicle request for the driver to take back control of the car; if those various alarms do not alert the driver, the vehicle will then slowly come to a halt. I am sure that we can all imagine the sort of disruption that could be caused if that happened on a motorway. He even described how the car prepared for an accident by tightening the driver’s seat belt just before the vehicle came to a halt, in case the driver had passed out or was so fast asleep that the alarms did not wake them up. There are various scenarios involving the transition that cause alarm.

Mr Gooding of the RAC Foundation felt that we should not even entertain tier 3 because it is unsafe and does not make any sense, and because the legislation is about moving straight to tiers 4 and 5. Clearly, if people giving us evidence are saying that, I suggest to the Minister that it should cause the Government some alarm, and that perhaps we should be legislating to say that we do not want to allow this on our roads. There are issues being raised about the clear dangers of tier 3 transition.

Oliver Letwin (Conservative, West Dorset)

I, too, note what was said about tier 3, but I hope that the hon. Gentleman is not underplaying his own point. What he referred to in the transition phase also applies to tier 4. It is only at tier 5 that it disappears.

Clive Efford (Labour, Eltham)

My understanding of tier 4, as Mr Wong said in his evidence, is that it is only at tier 4 that the human is removed from the equation; I think that those were his exact words. I must admit that that seems to be a contradiction. Tier 5, as I understand it, is a fully automated vehicle with no steering wheel, totally under the control of technology. One wonders what tier 4 is. If tier 3 is the transition between human and vehicle and tier 5 is a fully automated vehicle with no steering wheel whatever, what is tier 4? Is it a lesser tier 5 or a greater tier 3? I will give way to the Minister, who is going to enlighten us.

John Hayes (Conservative, South Holland and The Deepings)

I suggest that I drop a note to the Committee setting out what each tier means; otherwise, we will have this debate time and again. I can anticipate Members across the Committee querying it. I have asked my officials already.

Clive Efford (Labour, Eltham)

That would be helpful. I have looked at it, but as has been demonstrated in our exchanges, the difference between tier 5 and tier 4 is not entirely clear. From the descriptions of the people who gave evidence to us, in tier 4, the human is removed entirely from the equation.

We need to consider this issue. The evidence that I read said that the Venturer experiment at the Bristol testing centre discovered that drivers, when they first took over, tended to be over-cautious and drive at slower rates, which could increase congestion. There was also the potential for danger in vehicles suddenly slowing down, and Mr Gooding said in his answers to our questions that he felt that that issue was more important than congestion.

There are some important considerations raised by the issue of transition, particularly in tier 3. We asked witnesses, “When will the vehicle decide whether it is safe for the vehicle to drive or whether the vehicle should be handed back to the human driver?” They said that it depended on road conditions. That suggests that it will happen in the same locations on our roads: for instance, as vehicles leave motorways and enter more built-up areas, where there are more potential hazards and dangers for vehicles, it is likely that the vehicles will transition back to being driven by the driver. If that will happen regularly in the same location, it could create accident black spots. We could create a considerable new hazard on our roads.

Oliver Letwin (Conservative, West Dorset)

We eagerly await the Minister’s note, but due to the wonders of modern technology, one can look it up on the web. Level 4 is clearly described as fully autonomous and

“designed to perform all safety-critical driving functions and monitor roadway conditions for an entire trip.”

However,

“it’s important to note that this is limited to the ‘operational design domain’ of the vehicle—meaning it does not cover every driving scenario.”

I hope that the hon. Gentleman will agree that the transition question arises in relation to level 4 when vehicles move from one driving scenario to another.

Clive Efford (Labour, Eltham)

I accept that entirely and agree. It comes back to my point that it is likely to happen regularly in similar locations, and that patterns of behaviour will occur in particular spots where transition occurs because the technology requires it. We need to be aware of that. The testing is telling us that that is happening, but we are not taking it into consideration in the Bill, as we should.

I suggest to the Minister that we need to take that away and consider it. Safety must be the aspect most prevalent in our minds. There is also the moral or ethical issue of driver autonomy: will the driver be in charge of the vehicle, or will the technology be in charge of the driver? In the debate on previous amendments, he said that the technology is superior; he did not use that word, but he said that it is safer than a human in the event of an accident, even suggesting that a vehicle would make better or quicker choices than a human. That points us down a road, if Members will pardon the pun, of having roads operated in the way that our railways or underground service are controlled. Why not have fully automated vehicles of which drivers do not have control at all?

John Hayes (Conservative, South Holland and The Deepings)

Let me be clear about that. We will not have time to complete our consideration of this group of amendments, so I feel that intervening might be helpful. What I said was that I drew that conclusion from the evidence that we received. The insurance industry and other witnesses said that they thought that the vehicles would be safer, and that insurance premiums might decrease over time; they said so because they believe that autonomy will make vehicles safer. It is implicit that they gauge the autonomous driving mode to be safer.

Clive Efford (Labour, Eltham)

My experience has been that many people who come to give evidence to us as MPs assure us that a technological advance will deliver X, Y and Z, take us far forward and lead us to a promised land where things are safer and much improved, yet we find that due to the law of hidden consequences, we face a whole different set of scenarios. The one that I am pointing to here is that the transition between driver and technology is already throwing up potential hazards on our roads, even before we have let the vehicles on our roads. We know that the issue exists, because it has shown up in the testing. Therefore, we should legislate for it. I have asked the Minister to take on board those arguments, and I can see that the Whip is itching to get to his feet.

Oliver Letwin (Conservative, West Dorset)

My right hon. Friend the Minister rightly admonished me earlier in our proceedings for not making clear right from the beginning how the remarks I was making related to the structure of the Bill as it is and how it is trying to make progress without trying to solve all the problems.

In responding to the amendment of the hon. Member for Eltham, I want to ensure that I make clear why I am raising the point that I am raising about the Bill as drafted. I take it that the point of clause 2, which is one of the major points of the Bill, is precisely to ensure that the insurance industry has a clear and legally certain basis for proceeding. That is a restricted but very important ambition. The point that the hon. Gentleman raises in his amendment is very material from the point of view of realising the Minister’s ambition.

The way that the Bill is constructed, without the hon. Gentleman’s amendment or something like it, does not provide certainty for the insurance industry. The insurance industry has failed to recognise that the Bill does not provide that certainty. When the industry realises that it does not, it will blame us and the Minister for that and say, “Why on earth did you not give us certainty?” My whole intent is to ensure that the Minister can do what he is trying to do. I hope he will accept what I am saying in that light.

We had an interesting exchange in the course of the moving of the amendment about tier 3 and tier 4. To tell the truth, I do not have any faith in the tiers. They are a figment of a group of manufacturers’ imaginations. They are as good as we are going to get at the moment as a broad description of how things will go, but it is likely that all sorts of different things will be produced that are variously describable as tier 3-plus and tier 4-minus and God knows what else. I think the Minister has already agreed with what I think is certainly a true proposition: there will be at least a period in which people are experimenting with kinds of automation that involve significant opportunities for transition between the machine and the person. For that purpose, it does not matter whether we are talking tiers 3, 3-plus, 4-minus, 4 or, indeed, 4-plus.

There will possibly come a moment when drivers just fall out of the equation and there are not any drivers any more, just machines that take us to where we programme them to go. At that halcyon moment, probably decades from now, clause 2 would work fine, but the problem is that it will not work fine during what is likely to be the very long passage where there is a rather messy scene of vehicles that in varying circumstances are taken over by a driver or handed by the driver to the automation system. We were told in the evidence sessions with great certainty that it would take 10 seconds or less to hand over. We were also told that if a failure in the handover from the machine to the person occurred, all was well because the machine would find a way of stopping itself. I have learned, as I expect many members of the Committee have, always to take with a strong pinch of salt any assertion by assertive technologists that they know exactly how long it will take for something technological to happen in all circumstances. They do not know any such thing; they are speculating. They may prove to be entirely right—they certainly know a lot more about it than me—but it is perfectly possible that they will prove to be completely wrong.

The hon. Member for Eltham raised one circumstance in which the technologists could be very wrong. It may well be that the machines are so designed that they go to great lengths to wake up drivers who have gone to sleep when they have stopped driving and handed over to the machine. There may be rules enforced that say they must not go to sleep, but human beings are human beings, and they might go to sleep and it might take a lot longer than 10 seconds to wake them up. I happen to be married to someone who takes a lot longer than 10 seconds to wake up; I have no reason to suppose that every human being sitting next to the machine is going to be in full functioning order in 10 seconds. There could be quite long periods during which that transition is occurring.

The reason I say all that to my right hon. Friend the Minister is that we are not here talking about angels on pins; we are not talking about milliseconds that are just a figment of legal imagination. It is quite likely that, in real life, there will actually be some accidents that occur during periods of transition between machine and mankind. There is no reason we should be afraid of that; there are plenty of accidents on our roads now, and we are not entering into a new terrain in which there will be thousands more accidents—probably there will be thousands fewer. Nevertheless, some accidents might occur during transition. The Bill currently contains a binary choice. Either, as in clause 2(1),

“an accident is caused by an automated vehicle when driving itself”

or it is not. There is no allowance for the possibility of transition.

If a piece of legislation does not admit of a possibility, and that possibility comes about in real life and there is a court action about it, the court looks at the statute and it says to itself, “Blow me down! Once again, Parliament has been extremely stupid. There is nothing in the statute about this situation.” What does an English court do, thank goodness, under such circumstances? It invents the law. That is what it will do. It is not the case that there is a sort of legal black hole. Where there is statute and statutory construction does not lead to the answer to the case, the judge will invent the answer.

John Hayes (Conservative, South Holland and The Deepings)

I take it that my right hon. Friend is speaking about fault. In those circumstances, what would be at question is where fault lies and what caused the accident. If that is the case, I direct him, without wishing to engage in a long debate about it, to clause 3(1), which deals with partial responsibility and therefore fault.

Oliver Letwin (Conservative, West Dorset)

No, I am not raising the question of fault. I am raising the question of legal certainty about the circumstance. Clause 2 says that if the

“accident is caused by an automated vehicle when driving itself”

it is clear that

“the insurer is liable for that damage.”

It is equally clear, therefore, as a binary choice, that if the vehicle is not being driven by the vehicle itself, but by the driver, the driver is liable. Those two positions are perfectly clear. The insurer of the driver, who may or may not be a separate body from the insurer of the vehicle, takes on responsibility when the driver is driving. We are dealing here with the situation in which some combination of driver and vehicle has been the cause of the accident, during a transitional period from one to the other. The question arises, which of the two insurance policies is the relevant one? I do not believe that there is anything in clause 3 that solves that problem. If the Minister can point out something about the wording of clause 3, I hope you will allow him to do so, Mr Bailey, because it is definitely relevant to the point that the hon. Member for Eltham and I are raising.

My own view is that there is nothing in clause 3 that solves the problem, and therefore the courts will invent a solution. There is nothing wrong with that in general—the courts are very wise and may come up with a perfectly good solution—but the Minister’s purpose is not to say, “Let the courts invent a solution”. If that was his purpose, he would not need the Bill in the first place, because we have a common-law system. If there were no Bill, and if automated vehicles were to proceed and things were to go to court, the courts would find a solution. We would not need the Bill in the first place, if we were going to rely on the courts. The reason for having the Bill is to create legal certainty so that we are not simply trying to find out later, ex post, what the courts will make the law be. We are trying to make the law in advance, so that the insurance industry and the automated vehicle industry know how it will work. For that purpose to be realised, we have to be clear that the law covers all the possible circumstances—when there is a driver driving the vehicle, when the vehicle is driving the vehicle, and the circumstances between the two when somebody is handing over to the vehicle or the vehicle is handing over to the driver.

My point is that at the moment there is a gap; the Bill does not say what happens during that period. Incidentally, I do not think it matters terribly what the decision is; there just needs to be a decision, so that a case does not revolve around who the relevant insurer is under the circumstances of transition.

Clive Efford (Labour, Eltham)

I know we are not debating clause 3, but since the Minister referred to it, let me point out that clause 3(2) makes it the driver’s responsibility if a vehicle is unsafely allowed to be driven automatically. A driver could be at fault if they cause an accident at the moment of transition by failing to respond when the vehicle tells them to take over, so clause 3 could actually make things worse for the driver.

Oliver Letwin (Conservative, West Dorset)

Actually, I think the hon. Gentleman understates the problem with clause 3(2), which the Committee will consider in due course. During our consideration of clause 1 this morning, I made the point that unfortunately clause 3(2) contains the word “wholly”. It is therefore completely unclear what happens if an accident is not wholly due to the driver or to the vehicle, but is partly due to each, as it would be during the transition. That is a muddle, and the whole point of the Bill, which I applaud, is to avoid muddle. Muddle encourages courts to base decisions on common sense or common law, because the statutes do not tell them how to handle the circumstances. That is not what we are trying to achieve; we are trying to clarify and make certain.

We therefore need clause 2 to set out clearly the three possible situations. If the driver is driving, the driver’s insurer is liable. If the car is driving, the car’s insurer clearly has strict liability, novel though that concept is. But we need a decision—I do not really care what, so long as it is clear, definite and permanent—about what happens during periods of transition, however long they may be and under whatever circumstances they may arise. We cannot tell in advance how long the transition periods will be, and we should not take any advice from the industry that they will be only for 10 seconds and will always work perfectly—they will not.

John Hayes (Conservative, South Holland and The Deepings)

May I welcome you to the Chair, Mr Bailey? Our discussion this morning was lively, but productive and wholesome. I am keen to make progress, as I am sure other Committee members are. The amendments tabled by the hon. Member for Eltham relate to issues that we have already addressed, but with further consideration of the transition between autonomous and human driving. Clause 3(2) states:

“The insurer or owner of an automated vehicle is not liable…to the person in charge of the vehicle where the accident that it caused was wholly due to the person’s negligence in allowing the vehicle to begin driving itself when it was not appropriate to do so.”

I am conscious that much of the debate on these amendments relates to clause 3, so I must be careful not to stray into premature consideration of a clause that the Committee has not yet reached. Nevertheless, in resisting the amendments, it is pertinent for me to refer the hon. Gentleman and my right hon. Friend the Member for West Dorset to the Road Traffic Act 1988. If the driver has some role in the accident—if the vehicle is not self-driving, either during or before the transition—the current framework, which is set out in the Act, will apply.

It is also worth saying that if a driver negligently decides to hand over control of the vehicle, clause 3 will apply, which is why I said we would end up debating clause 3 if we were not careful. If it is partly the driver’s fault, subsection (1) will apply; if it is wholly their fault, subsection (2) will apply. For example, if the driver of a vehicle designed only for self-driving on a motorway is injured after putting it into self-driving mode on a rural road, the insurer’s liability will be reduced under the contributory negligence principle. If a court finds the driver to be wholly at fault, the insurer will pay only the third parties involved in the accident. Partial responsibility is therefore addressed in the Bill and the transition, to which my right hon. Friend the Member for West Dorset paid particular attention, is dealt with in as much as we have an existing framework that of course insurers have built their current products around, which is drawn from the Road Traffic Act 1988 and other national and international regulations.

Alan Brown (Scottish National Party, Kilmarnock and Loudoun)

I apologise for not understanding, but will the Minister explain further how the Road Traffic Act 1988 covers the specific example of an automated vehicle transitioning from automatic to driver mode, or vice versa?

John Hayes (Conservative, South Holland and The Deepings)

I will be happy to do that when further inspiration reaches me. In the interim, while I wait for that inspiration, I will say that we recognise the need to ensure that the transition controls are safe. It is of value to emphasise that research, including some being carried out in the UK, will help to determine a safe transition process to inform international safety standards of the kind I mentioned earlier. In essence, therefore, the field is a developing one in which those international standards are being built on. Research is taking place here and elsewhere.

The research that we spoke briefly about in the witness sessions is such that it includes the development of software to take account of endless eventualities that might occur while a vehicle is being driven or driving itself. The work being done is to simulate a range of road conditions and circumstances in which any car might find itself at any point in time on any kind of road. That is of course as numerous as might be imagined, but the aim is to have software that is clever enough to deal with all kinds of driving circumstances. The work is not complete but ongoing, and is being done on London roads as we speak—trials on London roads in real time.

I am therefore confident that the further work will lead to an outcome where the software that in the end allows us to see the further development of automated vehicles will be able to replicate circumstances that drivers find themselves in. That, by the way, relates to a debate we had earlier about the judgments that might be made by a human being replicated by the software given all kinds of different challenges.

Oliver Letwin (Conservative, West Dorset)

Will the Minister focus his mind on a specific example? We are in a case in which the car has been driving itself on a motorway. It is programmed to turn off the motorway, but it is not judged by the Secretary of State to be a car of a kind that would be safe to drive off a motorway. It has therefore been programmed to hand over to the driver when it leaves the motorway—this is one of the situations on which the amendment of the hon. Member for Eltham is focused—and the driver is profoundly asleep, having been asleep all the way from London to Bristol on the motorway. The machine tries to hand over to the driver.

I am sure the Minister is right, that the software will be highly developed and it will try to hand over quickly, as far as it can, and that if it does not hand over quickly it will take all sorts of other sensible evasive action to prevent an accident occurring in such circumstances. If we could be absolutely certain that the software was perfect, we could all relax. The Minister would not need the Bill because there is no need to insure things that are absolutely perfect; they never have any accidents so there are no risks and no need for the law.

In introducing the Bill, however, the Minister rightly envisages that the software will not be perfect because things invented by human beings never are, unlike things invented by the Almighty that the Minister believes in. There will be circumstances in which the software goes wrong, such as if it tries to take evasive action having tried to hand over to a driver who was asleep and who it has failed to wake up. We have a prolonged transition period during which this magnificent software is trying and failing to get the driver to wake up and somehow does not do everything perfectly, and then there is an accident. Under clause 2(1)(a), is the vehicle driving itself in those circumstances or not? I do not know and a court will not know. It is trying not to drive itself—it is programmed not to be—but it has failed not to be driving itself. Somehow or other, that circumstance needs to be covered here. If the Minister can explain how the Road Traffic Act, which I looked at when it came up in the oral evidence sessions—

Oliver Letwin (Conservative, West Dorset)

I do apologise. If the Minister can explain how the Road Traffic Act solves that problem, I am all ears.

John Hayes (Conservative, South Holland and The Deepings)

I had forgotten for a moment that it was an intervention. Those who seek perfection on earth are invariably either extreme zealots or delusional, or both. Perfection exists only in heaven, as my right hon. Friend knows. The insurance industry does not claim that there would be no accidents in any circumstances as a result of automated vehicles, but it told us in the oral evidence sessions that it thought there would be fewer. It said that that would have an effect on the insurance marketplace because of the effect on safety—that is the exchange we enjoyed earlier—that comes about because the fallibility of men and women as drivers means that 95% of accidents, or a figure close to that, are caused by human error of one kind or another. We are clear about that.

We can also be clear that the Bill is welcomed by the industry because we were told so by Mr Howarth in the oral evidence sessions. He said:

“I think it is very clear that the legislation and broadly the development of automated driving are something that insurers are genuinely enthusiastic about.”––[Official Report, Automated and Electric Vehicles Public Bill Committee, 31 October 2017; c. 7, Q11.]

The insurance industry thinks that the Bill is an important first step, of the kind I described earlier, in establishing a framework, but it is a framework and further changes will be necessary as technology develops. Those changes will have to be dealt with in a regulation or subsequent measures.

Karl Turner (Labour, Kingston upon Hull East)

Will the right hon. Gentleman give way?

John Hayes (Conservative, South Holland and The Deepings)

I will, but I want to finish this bit otherwise I will get mixed up in my responses.

In respect of the intervention by the hon. Member for Kilmarnock and Loudoun, to be clear, the Bill covers only cars in autonomous mode, because there is an existing insurance framework born of the Road Traffic Act that triggers insurance when the driver is at least partly at fault and establishes liability. I dealt with this issue earlier. Insurers look at what the causation is, the causation is linked to establishing fault and insurance kicks in accordingly. That is why the Road Traffic Act is relevant because that is where we are already. If we did not have a framework, we would not have a series of insurance products—they would be based on nothing. They are based on the existing law.

Karl Turner (Labour, Kingston upon Hull East)

Is not the right hon. Member for West Dorset making a point about interpretation? The Bill as currently drafted could be a lawyers’ charter. Lawyers will be scrapping in court, arguing about various definitions, because the Bill simply is not clear enough on those points.

John Hayes (Conservative, South Holland and The Deepings)

That is a good point. As the hon. Gentleman is a lawyer, I would not want to second-guess him.

Karl Turner (Labour, Kingston upon Hull East)

I have never been that type of lawyer.

John Hayes (Conservative, South Holland and The Deepings)

A former lawyer, I should say. Of course Governments always look during scrutiny at the wording of Bills and at what can be tightened, changed or improved. That is part of the business that we are engaged in today. That is why we are having these debates; that is why we believe in the parliamentary process; that is why I started by saying that my intention was not to blindly drive the Bill through unaltered, but to listen, consider and reflect. That is the approach that I adopt.

The risk in this particular case, and with this kind of Bill, lies in trying to do too much. My right hon. Friend the Member for West Dorset will say, “Yes, but it has to be sufficient,” and of course he is right. The point that he made at the beginning of his remarks was that if we are seeking clarity—and the case that we are making for the Bill is clarity—we cannot end up with something that is not clear. Otherwise, ipso facto, we are not fulfilling our ambitions. This debate is about that clarity.

Let me put this on record and see if it helps. It is likely that the first automated vehicles to reach the market will be usable in automated mode only in specific situations or use cases; we talked about that previously. They will probably be used, in the first instance, on motorways, for obvious reasons. In those terms, to put it in a way that most of us should find easy to grasp—I certainly find it easy to grasp, and if I find it easy, that is fair enough—it is a bit like a combination of what we have now. We have cruise control, which we might use on a motorway, but we probably would not use on a small side road in a rural area. We might use other driver-assist mechanisms currently available that are not automated, but have been developed over time to make driving more straightforward. We use assisted parking only when we are parking or reversing. There is a relationship between developing technology and actual use. That, I think, is how it will be at the beginning of the process—the journey, the road, the mountain; I do not mind which simile I use—that we are embarking on.

Alan Brown (Scottish National Party, Kilmarnock and Loudoun)

Will the Minister give way?

John Hayes (Conservative, South Holland and The Deepings)

I will give way in a moment; I just want to complete this thought. Manufacturers have spoken about creating geofenced vehicles that would operate in defined parts of the city; others have spoken about systems that would operate on motorways and other high-speed roads. It is likely that the relevant global regulations that will be used to type-approve automated vehicles will reflect such limited-use cases. It is also possible that the regulations will contain requirements that the vehicle be able to detect where it is so that the system cannot be used in other situations.

Therefore, it is not clear that we need to make matching regulatory changes in our domestic framework. If necessary, we can use existing powers—this relates to what I said earlier—in the Road Traffic Act 1988 to revise existing or create new road vehicle construction and use regulations to reinforce the global regulations. That is exactly the point that I would make to my right hon. Friend the Member for West Dorset. If that legal power exists, and as long as the Bill does not counter it—it is a useful addition, but it does not negate any of that—it seems to me entirely possible to deal with those technological changes.

Oliver Letwin (Conservative, West Dorset)

indicated dissent.

John Hayes (Conservative, South Holland and The Deepings)

My right hon. Friend looks thoroughly unconvinced, so I will happily give way.

Oliver Letwin (Conservative, West Dorset)

I do not think that anybody could possibly be convinced by that, because it does not address the issue. The issue is when the insurer of the vehicle will be liable. It does not matter what regulations are made; they will have no impact on that question if the primary legislation says what it says now and no more. It will remain unclear what will happen in circumstances where it is not clear whether the automated vehicle is driving itself according to the terms of clause 2(1)(a), because it is in transition but failing to transition. That is a problem that the Minister cannot address through regulation; he must address it in the primary legislation if he wants the court to be clear about who is liable.

John Hayes (Conservative, South Holland and The Deepings)

If it is helpful to explain to the Committee in greater detail and in more technical detail, if I can put it that way, the relationship between the Road Traffic Act and the Bill, I am happy to do so, and to do so in particular relation to the point that my right hon. Friend has just made about responsibility and liability, because he is right that if such a contradiction occurred, the purpose of the Bill would not be fulfilled. So, I am happy to reflect and write on that, and given what the hon. Member for Kilmarnock and Loudoun has said, perhaps that will be beneficial in dealing with his query, too.

Alan Brown (Scottish National Party, Kilmarnock and Loudoun)

Further explanation might help, but the Minister also said that he could use the Road Traffic Act to create regulations that could deal with this issue, because he said that the Bill is to do with fully autonomous vehicles. However, it still seems logical that, if this is a new Bill to deal with autonomous vehicles, we should deal with the scenario that we know exists—it is a scenario that we have already heard evidence about. There is already what is called the tier 3 or level 3 mode of operation, whereby a vehicle already makes that transition from driving to automated, so it seems logical that we deal with this issue while we are considering the Bill.

John Hayes (Conservative, South Holland and The Deepings)

No, I do not think that I agree with that. We are all, to a lesser or greater extent, experienced legislators, or most of us are, and therefore we know that when a Bill is introduced and then becomes an Act, it certainly needs to be synergistic and compatible with the other, pre-existing measures to which it relates. I am not sure that it always needs to replace them; if that was the case, every Bill would have to be immensely ambitious in its scope.

So I do not think it is impossible to reach a position where, if we can accommodate the requirements of my right hon. Friend the Member for West Dorset, we can end up with an Act that is compatible with existing regulation and that fits—knits, if you like—with it, in as much as the insurance industry can rely on the existing legal framework for the products that it already sells and that the public enjoy—or endure, depending on which way people look at it—and there can be a new set of products that relate to the new technology and that build on the framework that this Bill, which hopefully will ultimately become an Act, delivers. So I am not sure that I agree with the hon. Gentleman.

Alan Brown (Scottish National Party, Kilmarnock and Loudoun)

The amendment provides clarity, though.

John Hayes (Conservative, South Holland and The Deepings)

The hon. Gentleman intervenes from a sedentary position. Yes, but what I described does not suggest a lack of clarity. It simply says that the existing legislation is obviously clear, because it has given rise to an insurance marketplace that works; the new legislation needs to be clear, as my right hon. Friend the Member for West Dorset; and then the relationship between the two needs to be clear. We have achieved one objective, which has been achieved since 1988 at least; of course, there was legislation before that, but we do not need to deal with that legislation now.

So, I am not sure that those things cannot be squared; in fact, I am certain they can be squared and it is my job to do so. Because it is my job to do so, I am not sure that I can accept the amendment—although it is entirely understandable, well-argued and designed to help; I know that—not least because it is too detailed for the level of development of the technology and could constrain more appropriate subsequent regulation of the kind that I have described.

Also, ultimately the amendment would not help with the process of determining and apportioning liability in the event of an incident, which will remain the same as it is now, with the courts making judgments based on the facts. I am not sure that the amendment really helps with that, and for that reason I invite—not just invite but recommend—the hon. Member for Eltham to withdraw it.

Clive Efford (Labour, Eltham)

Welcome back to the Chair, Mr Bailey. Do you intend to have a stand part debate? Should I forego my response and just contribute to that debate, or make my response now?

Clive Efford (Labour, Eltham)

I will make my points now and then we can move on.

We need to go back to what we are attempting to do with the Bill. Why have it at all? Why not just let the insurance industry decide which vehicles they want to insure and make it up as they go along? We are not doing that; we are actually trying to create a framework to protect the public when these new types of vehicles go on to our roads. We have accepted in principle that we have to legislate to accommodate those vehicles, which are different from the vehicles that we currently have on our roads. The Bill must not allow insurance companies to determine what types of vehicles go on our roads. That is for us; that is why we are here. If the Bill offers the insurance industry too wide a scope, we may end up with vehicles on the roads about which people ask us, “Why did you allow this to happen?”

We heard conflicting comments from witnesses. Mr Wong told us that in an Audi, after a minimum of 10 seconds alarm bells would go off and, if the driver did not respond, the vehicle would eventually bring itself to a halt. That was a description of tier 3. Mr Gooding told us that we should not accept tier 3—we should not have it at all. Mr Boland told us that the service vehicles that he would test on city roads would be fully autonomous but, in the experimental stage, would have a steering wheel and a driver, who would take over immediately with no transitional period whatever, which research tells us is not possible. Even the pointy-headed technocrats who came to talk to us told us conflicting things about transition and how the technology works.

We have to be clear about the vehicles we enable to go on to our roads and the dangers that they may create. The transition issue is important, because the evidence is that it creates dangerous situations.

John Hayes (Conservative, South Holland and The Deepings)

I think—to sound like a script from “Dad’s Army”—that the hon. Gentleman is going into the realms of fantasy a bit. His first point was that we need the Bill because the existing Road Traffic Act is not fit. I did not say that the existing Road Traffic Act was fit for the future, because it does not mention autonomous vehicles. The whole point is that it is fit for what it does but we need the Bill because autonomous vehicles are a growing reality and are likely to become so, as a result of research, at some speed in the coming years.

Secondly, of course it is true that the insurance industry has been involved in the work that led to the Bill; its representatives told us so in the evidence sessions. They not only welcomed the Bill; they have been involved through extensive consultations on what is necessary to build the framework to put the products in place. I think we can be clear about the fact that we need the Bill and that the insurance industry has helped create it, and likes it.

Clive Efford (Labour, Eltham)

I accept that the insurance industry is a necessary part of our transport system—we have to have properly insured vehicles—but what the Minister has said alarms me a bit. We have the poachers, not the gamekeepers, in charge of the legislation. Of course the insurance industry would not like to be tied up in knots and would want to be as free as possible to insure the vehicles that they choose to put on our roads, but I would argue that we should have more say.

The issue of transition is important. The right hon. Member for West Dorset put it well—I am in danger of saying that someone put a case for my amendment more eloquently than I am doing myself, but his point is important. At the point of transition, when the driver does not respond to all the warnings that Mr Wong talked about in his evidence, does it then come to the point when the people insuring the technology will say that the technology worked perfectly, but there was an accident, therefore it must be the driver’s fault? That scenario is not improbable and could come about. We would be wrong if we did not recognise that in the legislation.

The Minister also spoke about human error. It is quite right that everyone said that more than 90% of accidents are caused by human error, but it is an obvious point. As all vehicles are currently driven by humans, it is highly likely that when accidents occur, they are caused by humans. Some 5% are down to mechanical error. Although I accept that the safety aspect may reduce the number of accidents, when asked, the witnesses could not defend the suggestion that the proportion of accidents caused by mechanical failure—the failure of technology—will increase, and that 5% will go up. They were silent. We are dealing with an area of safety on our roads that is going to grow as a proportion of the accidents that occur.

The Chair may call me to order, but we have not dealt with the issue of platooning and connected vehicles. Which vehicle is going to take responsibility if an accident is caused by a vehicle in a platoon of vehicles going down a motorway and the vehicle that is behind them is insured by another company? We were told in the evidence that it is the lead vehicle that guides the other vehicles. There is a whole area to do with connected vehicles and vehicles transitioning between human control and computer control that will need regulating. The Bill is silent on that, which is a flaw. I do not intend to press my amendments to a vote, but I am sure that on Report—

John Hayes (Conservative, South Holland and The Deepings)

Given what the hon. Gentleman has just said, it would perhaps be helpful to repeat what I said in response to him and to my right hon. Friend the Member for West Dorset. I am happy to clarify the issue of transition.

Moreover, at its very heart the Bill will not put vehicles on to the road that are not safe and appropriate, because that is part of what the regulatory environment guarantees. Furthermore, of course, the Bill obliges the Secretary of State to draw up a list of vehicles. The hon. Gentleman, in withdrawing his amendment, can be assured that a good deal of what worries him—and I understand those worries—will be dealt with in the way I have set out.

Clive Efford (Labour, Eltham)

I am grateful to the Minister. I am not convinced, but I will wait for further information from him. I will not push my amendment to a vote today, but these are subjects that we can return to on Report and possibly at even greater length in the other place, as is the tradition of this place. I beg to ask leave to withdraw the amendment.

Contributory negligence etc

Karl Turner (Labour, Kingston upon Hull East)

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.

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).

John Hayes (Conservative, South Holland and The Deepings)

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.

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.

John Hayes (Conservative, South Holland and The Deepings)

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

Oliver Letwin (Conservative, West Dorset)

It might, but it might not.

John Hayes (Conservative, South Holland and The Deepings)

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.

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.

John Hayes (Conservative, South Holland and The Deepings)

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.

Oliver Letwin (Conservative, West Dorset)

I hope that with your indulgence, Mr Bailey—

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).

John Hayes (Conservative, South Holland and The Deepings)

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.

Karl Turner (Labour, Kingston upon Hull East)

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

Written evidence reported to the House