The Committee is calling for written evidence on:
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As a market-leading insurance practice law firm, we offer a complete coverage and litigation service for composite insurers, specialist insurers, syndicates, reinsurers, legacy acquirers, captives, brokers, TPAs, large corporates and self-insured organisations. In terms of motor insurance, we act for five of the top 10 motor insurers, as well as the Motor Insurers’ Bureau (‘MIB’), and a significant number of self-insureds, public bodies and corporates. We provide a genuine full service proposition, from first notification of loss and settlement of claims through to recovering costs. Our expertise covers small claims through to catastrophic injury, and we have dedicated teams dealing with fraud, credit hire, technical/cross-border issues and criminal/regulatory enquiries.
As legal and insurance experts, our response focusses on the questions about the law and in particular the system designed to ensure availability of compensation for third party victims.
Is the legislation for e-scooters up to date and appropriate?
Put simply, the legislation which applies to e-scooters, the Road Traffic Act 1988 (‘the RTA’) is neither up to date nor appropriate. It has not kept pace with changing methods of transport as evidenced by the ever increasing use of e-scooters now seen on UK roads and pavements.
The RTA at Section 185, defines a ‘motor vehicle’ as “…a mechanically propelled vehicle intended or adapted for use on roads”. We think that if tested in the courts it is inevitable that an e-scooter would be held to meet that definition.
In Chief Constable of North Yorkshire v Saddington  EWHC Admin 409, a ‘Go-ped’, which is a scooter with a small petrol engine, was held to meet the definition. Pill LJ observed that; “The temptation to use Go-peds on the roads is considerable, notwithstanding their limitations. They provide a ready means of getting through traffic on short journeys on busy urban roads and, for that matter, on less busy suburban roads”. In applying a test as to whether general use on the road is to be contemplated notwithstanding advice from the distributor that the vehicles should not be used on roads, he said this; “The distributors’ advice not to use the Go-ped on the roads will in practice be ignored to a considerable extent. Surrender to the temptation to use it on the roads will not be an isolated occurrence even though the vehicle may not be roadworthy in the sense used by the Justices”.
It seems there is no reason why the same could not be said of an e-scooter. More recently in Lewington v MIB  EWHC 2848, the High Court held that it was obliged to interpret the RTA so as to ensure compliance with the EU Motor Insurance Directive [2009/103 EC] (‘the Directive’). The Directive contains a much broader definition of ‘vehicle’ which would without doubt encompass an e-scooter.
An e-scooter would be held to be a ‘motor vehicle’ for the purposes of the RTA. In contrast, Electrically Assisted Pedal Cycles (‘EAPCs’), another type of mechanically propelled vehicle, have been specifically excluded from the remit of the RTA requirements by virtue of Section 189 of the RTA and some specific Regulations. It seems the legislation has been adapted for the use of EAPCs but not for the use of e-scooters.
The consequences of an e-scooter meeting the definition of a ‘motor vehicle’ in the RTA are that it cannot be legally used on a road or other public place without also meeting many requirements of the RTA such as type approval requirements including requirements for the likes of MOT testing, displaying lights etc., licencing of drivers and crucially, it cannot legally be used without the user having third party insurance.
The requirement to have third party insurance to use a motor vehicle on a road in the UK has been compulsory since 1930. The compulsory requirement backed up by effective enforcement means that compensation should be available to innocent victims of negligent users of motor vehicles. In addition, for the victims of uninsured drivers, the Motor Insurers’ Bureau (‘MIB’) pays compensation under agreements it has with the Secretary of State for Transport.
The MIB is funded by a levy it collects from motor insurers, i.e. those insurers who are taking premiums for compulsory motor insurance - that cost is therefore being passed to the motoring public via premiums. The MIB is obliged to pay claims in circumstances where compulsory insurance is required and therefore this would include victims of the negligent use of e-scooters. Where it pays a claim, MIB will then seek recovery of the costs from the uninsured vehicle user.
The current state of affairs is entirely unsatisfactory; as a matter of fact, many e-scooters are being used on UK roads and pavements; their use is illegal and we doubt very much that any are fully insured to the standard required by the RTA, and the cost of claims from victims is being funded by the motoring public.
Another way of looking at this is from the perspective of the e-scooter users themselves. By using these vehicles and running the risk of causing death, injury or damage to others, these users are leaving themselves personally exposed to what could be very severe financial consequences without the benefit of the protection afforded by an insurance policy. Negligent use causing death, injury or damage will make the user personally liable to compensate the victims, or reimburse the MIB as mentioned earlier.
Legislative reform is therefore required if the use of e-scooters on UK roads and public places is to be legalised. With the law as it stands, users of e-scooters cannot legally ride on roads or other public places because they cannot possibly comply with the various requirements in the RTA.
The RTA, or other legislation needs to be amended to set down requirements for the users of e-scooters to include compulsory third party motor insurance. The requirements need to be set in a way that strikes a balance between providing adequate protection to third party victims and proportionate and affordable cover for the e-scooter users. The UK cannot possibly embrace the use of e-scooters against the backdrop of the current legislative framework.
Government may consider exempting e-scooter users from the requirements to have third party insurance. However, following this course of action gives rise to a number of concerns:
Victims of e-scooter users would have a right to compensation under EU law. This is because firstly an e-scooter would meet the very broad definition of a ‘vehicle’ in the Motor Insurance Directive, and secondly, again under the Directive, where types of vehicles are excluded from the insurance requirements, victims must be treated in the same way as victims of other uninsured vehicles i.e. in the UK, be able to claim from MIB.
Even after the transition period for the UK leaving the EU, this ‘directly effective’ right continues because the Court of Appeal have ruled on it and the way the European Union (Withdrawal) Act 2018 is drafted. So without further changes to the law there is a lasting effect of EU law in the UK.
Whilst MIB being obliged to pay victims does ensure they receive compensation, as explained earlier, it does not remove the personal liability of the e-scooter user. It also means that the cost of victims of e-scooter users will rest with the motoring public via their motor premiums.
We recognise that some e-scooter users may choose to insure themselves absent a compulsory requirement. However, that would create an unfair system where some injured victims would be compensated, and some not, depending on whether the e-scooter user happened to be insured.
There seems to be no logic for treating EAPCs and e-scooters differently with regard to the requirement for insurance. Both are powered vehicles being used on roads and cycle paths mixing with other road users. We think the Government should take the opportunity of reviewing the legislation for both and consider treating them consistently.
In addition, the RTA deals with various offences relating to the way vehicles are used for example, driving without due care and attention, or driving whilst under the influence of alcohol - Government needs to consider which of these are appropriate for users of e-scooters and make any necessary changes.
To what extent do e-scooters have positive benefits, for instance relating to congestion and promoting more sustainable forms of transport?
The EY report; Micromobility; moving cities into a sustainable future, contains some interesting information in this area. It concludes:
“Today’s cities are facing a challenge: reducing pollution and congestion while improving urban access and quality of life. To usher European cities into post-car centers, noise and pollution free zones will not only take smart policies and infrastructure, but a fundamental shift in mobility habits and behavior. This is where the sustainability potential of e-scooters lies: first tried out for fun but adopted for convenience, they exhibit tremendous uptake pointing to their potential to change the way we move in cities. By making alternative and public transit systems more accessible and convenient, e-scooters can serve as a catalyst toward shared and low-carbon mobility. “Shared mobility is part of the bigger plan of creating a livable, sustainable and accessible city with places that are pleasant to stay in. MaaS and micromobility are key in our plans,” say Eindhoven MaaS experts Astrid Zwegers and Jan Willem van der Pas.
To take advantage of e-scooters, cities and policy makers should embrace the trend and create environments conducive to private sector investment and sustainable practices that benefit the city, its citizens and the planet. Together, investment toward micromobility infrastructure, effective policies, innovation and responsible business practices can help cities reach their climate goals, reclaim space for citizens and improve their quality of life. While some challenges remain for the e-scooter sector, such as solving parking and improving safety, the unexpected rise of the e-scooter in Europe shows that the future of mobility that is people-centric and provides low-carbon transport may come faster than we thought. Data-driven smart policies are needed to support the shift rather than delay it.”
The full report is available online at: https://assets.ey.com/content/dam/ey-sites/ey-com/en_gl/topics/automotive-and-transportation/automotive-transportation-pdfs/ey-micromobility-moving-cities-into-a-sustainable-future.pdf
Where in the urban environment could e-scooters be used (e.g. road, pavement, cycle lanes), and how could this impact on other road users and pedestrians, including people who have visual impairments or use mobility aids?
If the use of e-scooters is to be allowed in public places, we consider that they should be allowed on both roads (not including motorways) and cycle lanes but not on pavements. Restricting their use to cycle lanes would be ideal, however this would just not be feasible for users to complete most journeys as the network of cycle lanes is not comprehensive enough. A sensible restriction for road use would be to permit them only on roads subject to a 30mph or lower speed limit.
With e-scooters travelling at between 12 and 15 mph to allow them to use the pavement and mix with pedestrians young and old as well as those with visual and other impairments would greatly increase the likelihood and severity of accidents. The risk is enhanced by the quiet nature of electric motors. Use on pavements should be prohibited and enforced by the authorities.
Should there be advice or compulsory requirements to use specific safety equipment when using an e-scooter?
There are many instances when the use of a cycle helmet would either prevent, or significantly reduce the severity of injury to the rider. As such we think it would be sensible to make the use of a cycle helmet compulsory.
These are powered vehicles which would be sharing the road with other vehicles travelling at much higher speeds, and the rider would be particularly vulnerable to serious head injuries. As a new legal regime is needed to legalise the use of e-scooters, it would seem entirely proportionate, sensible and reasonable to require the use of a cycle helmet.
Should there be safety and environmental regulation for the build of e-scooters, and what might this entail?
We are not expert in the build requirements but we do think, for the safety of the user and other road / cycle lane users that the speed should be restricted to 15.5mph as mentioned in the Future of Transport Regulatory Review (‘the Regulatory Review’). This would put the speed similar to many pedal cycles and EAPCs.
We also agree with the other factors mentioned in the Regulatory Review such as, braking requirements, lights and reflectors, maximum power output, minimum wheel size and a requirement for a handle bar. In addition, we think some form of audible warning device should be mandatory - a bell or horn for example.
Whilst not strictly related to the regulation for build requirements, it will be important to have some form of registration. Although this may not necessarily entail the displaying of a number plate as is in place for other motor vehicles, it is important to be able to enforce the compulsory insurance requirements. Some form of database should be used and accessed by the enforcement authorities in a similar way to the hugely successful use of the Motor Insurance Database for regular motor vehicles.
The experience of other countries where e-scooters are legal on the roads
The experience in other countries will no doubt be very helpful and others will be able to comment with authority here. However, some caution needs to be exercised because compared to many other EU countries, the UK has high levels of compensation and legal costs. Those costs ultimately fall on the premium paying public be they the e-scooter users themselves, or other road users.