Electric Vehicles: Fixing the Legal Blindspots

Mar 28, 2019

Written By Kerry Holmes

Climate change and health risks from pollution have spurred a technological revolution in the automotive industry. As petrol and diesel make way for electricity, laws need to be introduced and updated to reflect changes in infrastructure and clarify liability in ‘driverless’ vehicles.

Electric vehicles have existed since the mid 19th century, but manufacturers have only recently begun to shift away from petrol and diesel as the preferred method of propulsion. Climate change and concern about the effects of pollution on health have brought legislation that has nudged the hand of innovation. This has ushered in a new era of motoring, with all-electric lithium-ion battery and hybrid-electric powered cars.

The first road-legal all-electric motor car powered by Lithium-ion batteries was the Tesla Roadster in 2008. Mitsubishi, Nissan, Peugeot, Citroen, Smart, Volvo and Ford all had models on the market by 2011 and were joined by BMW, Renault, Toyota, Chevrolet, Mercedes-Benz, Fiat and Volkswagen by 2013. Plug-in hybrid electric vehicles (PHEV’s) began to reach customers in early 2012 with the Toyota Prius, and since then hybrid-powered editions of many popular models have been produced.

In July 2017, Volvo announced that every car launched from 2019 “will have an electric motor… embracing fully electric cars, plug-in hybrid cars and mild hybrid cars”. Two months later Jaguar-Land Rover made a similar announcement. Many of the remaining major manufacturers, although not wholly committing to all-electric or PHEV, have committed to phasing out diesel motors over the next five years.

Noise, pollution and infrastructure

A safety concern particular to all-electric and PHEV vehicles in electric mode is their lack of noise. When driven at low speeds, typically during reversing and parking manoeuvres, they are barely audible and this has caused fatalities. In 2014, Regulation EU 540/2014 stated that an Acoustic Vehicle Alerting System (AVAS) must be fitted to all new models of quiet hybrid and electric vehicles by July 2019, and all new quiet and electric vehicles by July 2021.

According to the Society of Motor Manufacturers and Traders, at the end of 2017 only 2.9% of registered motor vehicles in the UK were all-electric, PHEV or FCEV (hydrogen fuel cell). This is despite the fact that grants of up to £4,500 were available towards purchase. The market is growing, however, with 182,000 cars and 10,000 vans registered by October 2018 compared to 3,500 vehicles in 2013. Identified barriers to purchasing electric cars are price, a limited secondhand market, lack of charging points and concerns about battery life. Replacement batteries can cost more than the vehicle. This means taking a risk if they are owned outright or facing a continuing charge under a leasing scheme that can be tricky to transfer. Hopefully, battery improvements and increased sales volume will result in a fall in price.

There’s also a clear steer away from PHEVs towards all-electric cars, reflected in the withdrawal of grant for this class of vehicle and retention of an albeit-reduced grant of £3,500 for all-electric cars. This should continue to incentivise battery research. If it becomes apparent that prices are artificially high, it’s possible the government could intervene.

So it’s legislation, rather than customer demand, which is growing the market. Petrol and diesel vehicles deplete fossil fuels and emit carbon dioxide (CO2), which contributes to global climate change. Their emissions also contain other pollutants, including nitrogen oxide (NO), carbon monoxide (CO) and sulphur dioxide SO2, which can damage health. The EU has set manufacturers an average car emissions target of 95g of CO2 per km to be met by 2020 (EC 333/2014). This figure is an average across all of the manufacturer’s EU registered vehicles. Firms can currently claim extra ‘credit’ for each car that produces less than 50g of CO2, which compensates for vehicles exceeding the limit, but this is being phased out.

The EU also sets limits and targets for pollutants damaging to health. It stipulates that “limit values” must not be exceeded and “targets” should be met wherever possible without “entailing disproportionate costs”. If a country doesn’t meet EU Directives it faces fines, at least in theory. Governments also face pressure from campaign groups. One organisation, ClientEarth, has won three cases against the UK government because policies are failing to keep air pollution below harmful levels. Speaking in February 2018, ClientEarth lawyer Anna Heslop said, “The problem was supposed to be cleaned up over eight years ago, and yet successive governments have failed to do enough.”

As part of his ruling on the case, Mr Justice Garnham said that “EU law requires domestic courts to fashion an effective remedy… this was the third unsuccessful attempt by the government to produce a compliant plan.” Responsibility for meeting national air-quality objectives is devolved to local authorities. The High Court ordered ministers to require them to identify measures to tackle illegal pollution levels. This may result in more local policies that favour electric vehicle ownership, such as congestion zones. After Brexit, it’s not yet clear whether the UK will continue to honour all EU agreed targets or what will happen if it does not.

The government has committed to ensuring that manufacture of petrol and diesel vehicles ceases by 2040. Whether or not subsequent governments stick to that deadline, or perhaps bring it forward, the automotive industry has accepted the need to switch production. This means significant changes are required to the infrastructure of public fuelling points. The Automated and Electric Vehicles Act 2018, which came into force in July 2018, states that legislation may be imposed upon: access to public charging points; method of payment and performance; and maintenance and availability of connecting components. It also says that it may require operators to “co-operate with each other”, which could mean sharing facilities or information.

At the moment there are 18,685 public charging points in the UK according Zap Map. Many of these were funded by manufacturers and the government, making them free to the driver. As the number of electric cars on the road, and the impact on the electrical grid increases, more are charging a fee. It’s worth noting that most domestic vehicles are charged by owners overnight at home or during the day at work. However, infrastructure around public charge points and how the national grid will cope with the demand still need to be tackled.

The legal framework

The automotive industry has been brought closer to innovative technology companies, resulting in advances that go beyond simply replacing the way cars are fuelled. Experimental autonomous vehicles have existed since the late 1930s, but only since the 1970s has significant research been conducted on computer-controlled vehicles using cameras and other sensors to safely navigate along public roads. As these technologies emerge from the lab and move towards the market, six types of automation have been defined by The Society of Automotive Engineers (SAE) to help form a legal framework for their use.

Level 0: No automation—driver control entirely.

Level 1: Driver assistance—driver control with some assistive features (e.g. automatic braking, parallel parking and lane levelling).

Level 2: Partial automation—combined automated functions such as acceleration and steering, but the driver must remain engaged and monitor the environment

Level 3: Conditional automation—driver is not required to monitor the environment, but must be ready to take control of the vehicle at all times with notice

Level 4: High automation—the vehicle is capable of performing all driving under certain conditions and the driver may have the option to control the vehicle.

Level 5: Full automation—the vehicle is capable of performing all driving functions under all conditions. The driver may have the option to control the vehicle.

Audi are currently the only manufacturer with a Level 3 vehicle on the market. Its latest A8 has a ‘traffic jam pilot’—an artificial intelligence (AI) equipped computer system that can handle autonomously starting from standstill, accelerating, steering and braking at speeds under 37mph. It notifies the driver, allowing them to let go of the controls and prompts them to retake controls should conditions change beyond the parameters for automation. Since the arrival of the 2018 Act, which sets out legal liabilities, it’s been possible to bring this vehicle to the UK market.

According to the Act, a vehicle is “driving itself” if it’s “operating in a mode in which it is not being controlled, and does not need to be monitored, by an individual”. It states that the insurer is liable for injury caused to the insured party or any other person, when an insured automated vehicle causes an accident when driving itself. The driver is liable if the vehicle is uninsured. The person in charge of the vehicle, not the policy holder, is liable if the accident is caused by negligently allowing the vehicle to drive itself when not ‘appropriate’ to do so. There’s no definition, within the Act, of circumstances that would be inappropriate for a vehicle to be in driverless mode.

If an accident occurs as a result of unauthorised modifications to the approved manufacturer’s software, or if it’s reasonable to assume the insured party knew about critical software updates and failed to implement them, the insurer can recover any payout made from the policy holder. There’s no guidance on how manufacturers should communicate the need to update software or any action they should take to immobilise a vehicle that needs updates to make it safe. Nor does the Act mention threats from third parties accessing the software.

In 2016, a group of researchers from Keen Security Lab successfully hacked into a Tesla Model S, although only when the car was connected to a malicious Wi-Fi spot. They were able to adjust brakes, seats and locks along with many other features. There have also been similar hacks against other vehicles such as the Chrysler Jeep and Nissan Leaf. Although such action by hackers would be classed as criminal, manufacturers may also be compelled to ensure that driverless vehicles systems are secure enough to prevent this happening in use.

As well as the established automotive industry, big-name entrants such as Tesla and established tech companies including Apple, Amazon and Uber are vying for a share of the electric-car market, as it becomes ever more reliant on innovative technology. The primary focus so far has been on cars, followed by small vans. Less progress has been made in larger haulage vehicles, although Daimler has produced a limited number of all electric trucks and Tesla is also working on models. As the tech improves, the size of these vehicles will become less of a problem, but the need for a reliable infrastructure of charging points will become even more pressing.

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