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Third Report Contents

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Automated Vehicles Bill [HL]

9.This Bill was introduced in the House of Lords on 8 November. Its second reading took place on 28 November.

10.The purpose of the Bill is to set the legal framework for the safe deployment of self-driving vehicles in Great Britain. It implements recommendations from a 4-year review of regulation for self-driving vehicles carried out by the Law Commission and the Scottish Law Commission.3

11.The Bill contains 100 clauses and six Schedules. There are 35 delegated powers.

12.The Department for Transport has provided a delegated powers memorandum (“the Memorandum”) for the Bill.4

13.We draw the following powers to the attention of the House.

Clause 36(9) and paragraph 2(7) of Schedule 6—powers to determine maximum civil monetary penalties

14.The regulatory regime provided for in the Bill includes provision for civil sanctions including civil monetary penalties.

15.Clause 36(9) gives the Secretary of State power to determine, by regulations subject to the negative procedure, the maximum amounts payable by way of such penalties by—

• an “authorised self-driving entity”5 or a “licensed no-user-in-charge operator”6 for failure to meet regulatory requirements or to comply with an information notice,7 an interview notice,8 a compliance notice9 or a redress notice;10 and
• an authorised self-driving entity in respect of a traffic infraction.

16.The regulations must prescribe—

• the maximum sum that may be specified in a notice imposing a monetary penalty; and
• the maximum sum that may be added to that penalty for each day that the failure to which the penalty notice relates continues.

17.The Secretary of State also has power, exercisable by negative procedure regulations, to provide for the power in clause 36(9) to instead be exercisable by a traffic commissioner.11

18.Paragraph 2(7) of Schedule 6 gives an appropriate national authority12 power to determine, by negative procedure regulations, the maximum amounts payable by way of civil monetary penalties by a holder of a permit for the provision of automated passenger services for (a) an infringement of the permit scheme, or (b) failure to comply with a compliance notice.

19.Again, the regulations must prescribe—

• the maximum sum that may be specified in a notice imposing a monetary penalty; and
• the maximum sum that may be added to that penalty for each day that the failure to which the penalty notice relates continues.

20.The Memorandum cites two precedents for these powers: section 40A(3) of the Competition Act 1998 and section 111(4) and (6) of the Enterprise Act 2002.13 However, those powers are limited in a way that the powers in the Bill are not. They allow maximum amounts payable by way of civil penalties to be specified by negative procedure regulations but this is subject to an important limitation: the Acts that confer those powers both provide that any sum specified in the regulations cannot exceed ceiling amounts specified in the Acts themselves. The Memorandum does not mention this. No explanation is therefore provided for a key divergence from the two precedents to which the Memorandum itself refers.

21.We consider that—

• it is inappropriate for the maximum amounts payable by way of civil penalties to be left entirely to negative procedure regulations; and
• in the absence of provision in the Bill setting ceiling amounts above which any amount specified in the regulations cannot go, the powers in clause 36(9) and paragraph 2(7) of Schedule 6 to set maximum monetary penalties are inappropriate and should be removed from the Bill.

Clause 50—power to change or clarify existing traffic legislation

22.Part 2 of the Bill makes provision with respect to a “user-in-charge” of an automated vehicle. This concept relates to vehicles that are not fully automated but are capable of completing part of a journey in self-driving mode. For example, a vehicle may be capable of self-driving only on motorways. Such a vehicle would require a driver on roads other than motorways. The driver would become a “user-in-charge” when the vehicle is in self-driving mode.

23.Clause 46 provides that a person is the “user-in-charge” of a vehicle if—

• the vehicle is an authorised automated vehicle with an authorised user-in-charge feature;
• that feature is engaged; and
• the individual is in, and in position to exercise control of, the vehicle, but is not controlling it.

24.Clauses 47 to 49 provide that, subject to limited exceptions, the “user-in-charge” of a vehicle does not commit an offence arising from the way in which the vehicle is driven.

25.However, the task of amending existing legislation that relates to the driving or use of a vehicle to set out how it applies to a “user-in-charge” is left to regulations. Clause 50 gives the Secretary of State power to make provision by regulations “for the purpose of changing or clarifying whether, how or in what circumstances” any primary or secondary legislation that “relates to the driving or use of a vehicle” applies to the user-in-charge of a vehicle.

26.The power in clause 50 is a Henry VIII power. Where it is used to amend primary legislation, the affirmative procedure applies. Where it is used to amend any other legislation, the negative procedure applies.

27.As the Memorandum explains,14 the need for a power of this kind was endorsed in the Law Commissions’ final report in recommendation 45:

“The new Act should include a regulation-making power to adapt the lists of dynamic and non-dynamic offences15 in the light of experience, including a power to allocate some or all roadworthiness responsibilities to the [company responsible for authorisation of the vehicle as self-driving]”.

28.However, the Law Commissions did not address the issue of the level of parliamentary scrutiny that should apply to regulations made under such a power. The Memorandum acknowledges that “the power may be used to amend a wide range of existing subordinate legislation”.16 This could include not only statutory instruments made under the negative procedure but also (a) statutory instruments made under the affirmative procedure, and (b) assimilated direct legislation (UK domestic legislation derived from EU legislation, including EU Regulations). The Memorandum doesn’t explain why all amendments to such legislation should be subject only to the negative procedure.

29.We recommend that—

• the House presses the Minister to identify—

(a) delegated legislation made under the affirmative procedure, and

(b) assimilated direct legislation,

that could be amended under this power, and to explain why all amendments to such legislation should be subject only to the negative procedure; and

• in the absence of a satisfactory explanation, the power in clause 50 is inappropriate.

Clause 91—power to amend type approval legislation

30.Clause 91 gives the Secretary of State power to amend “assimilated type approval legislation” listed in that clause to make it “more suitable” for automated vehicles. The legislation listed makes provision for types of vehicles to be approved for use subject to meeting specified regulatory, technical and safety requirements. It comprises (a) assimilated direct legislation (UK domestic legislation derived from EU Regulations), and (b) statutory instruments made to give effect to EU obligations. The power in clause 91 is subject to the negative procedure.

31.The legislation that can be amended under the power is unusual because, despite not being primary legislation, it includes provisions that create criminal offences and set maximum penalties for those offences. The reasons for this are historical and relate to the UK’s former membership of the European Union.

32.The power would therefore appear to allow—

• criminal offences to be amended and maximum penalties for those offences to be determined; and
• new criminal offences to be created and maximum penalties set for such offences,

by regulations subject only to the negative procedure.

33.The Memorandum makes no mention of this, despite the Committee’s Guidance for Departments on the role and requirements of the Committee stating as follows—17

“Where a bill creates a criminal offence with provision for the penalty to be set by delegated legislation, the Committee would expect, save in exceptional circumstances, the maximum penalty on conviction to be included on the face of the bill. Therefore, where this is not the case, the memorandum should explain why not, and at the very least the Committee would expect the instrument to be subject to the affirmative procedure. Similarly, where the ingredients of a criminal offence are to be set by delegated legislation, the Committee would expect a compelling justification”.

34.The legislation that can be amended under the power also provides for civil penalties and sets the maximum amounts payable by way of such penalties. The power would therefore also appear to allow those maximum amounts to be amended by regulations subject only to the negative procedure. Again, the Memorandum makes no mention of this.

35.We recommend that—

• the House presses the Minister to explain why it is considered appropriate for clause 91 to confer power that would appear to allow—

(a) a range of existing criminal offences to be amended,

(b) new criminal offences to be created,

(c) maximum penalties for criminal offences to be determined, and

(d) maximum amounts payable by way of civil penalties to be set,

by regulations subject only to the negative procedure; and

• in the absence of a satisfactory explanation, the power in clause 91 is inappropriate.

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