MICRO-MOBILITY VEHICLES
There is a huge variety of micro-mobility vehicles (“MMVs”) available on the market, including e-scooters, e-bikes, wheeled ‘hoverboards’ and powered unicycles. It is legal to buy any of these vehicles and it is also legal to use them on private land (with permission from the occupier). The issues arise when it comes to their use on public land.
Attitudes towards MMVs are split. E-scooters focus the debate. As a recent House of Commons briefing paper (‘Regulating electric scooters (e-scooters)’, 1 September 2021) put it:
“Views differ on the potential benefits and problems presented by e-scooters. Some believe that they offer solutions to a wide range of transport policy goals (such as reducing pollution, congestion), while others believe that they are potentially dangerous and may undermine messaging about active travel and green transport.”
Whichever view we might hold, e-scooters are becoming ubiquitous. As the House of Commons library notes, their sale has not been deemed unlawful (we note that section 75 of the Road Traffic Act 1988 – “vehicles not to be sold in unroadworthy condition or altered so as not to be unroadworthy” – has not been deployed to prevent their sale). So they take their place – with the bicycle, the moped (a descendant of the Autoped, the precursor of the e-scooter), the motorbike and the car – among the vehicles used and feared in equal measure.
This article will consider the general position for MMVs, followed by the separate and specific rules for e-bikes and e-scooters. Then we draw some conclusions and make some predictions.
The General Position for MMVs
A ‘motor vehicle’ is defined under section 185, Road Traffic Act 1988 as:
“subject to section 20 of the Chronically Sick and Disabled Persons Act 1970 (which makes special provision about invalid carriages, within the meaning of that Act), a mechanically propelled vehicle intended or adapted for use on roads.”
(Section 20 of the 1970 exempts from the requirements of the 1988 Act a mechanically propelled ‘invalid carriage’, meaning “a vehicle, whether mechanically propelled or not, constructed or adapted for use for the carriage of one person, being a person suffering from some physical defect or disability”).
Apart from “invalid carriages” (in the dated language of the 1970 Act) and e-bikes (which are also under a special legal regime), it is apparent from case law that MMVs are legally categorised as motor vehicles (see DPP v Saddington [2000] EWHC Admin 409 for a go-ped scooter powered by an internal combustion engine, Winter v DPP [2002] EWHC 1524 (Admin), [2003] RTR 14 for a ‘City Bug’ electric tricycle and Coates v Crown Prosecution Service [2011] EWHC 2032 (Admin) for a Segway).
Lawful use in public places
Road Use: As a result of being classed as a ‘motor vehicle’, to be lawfully used on the road MMVs must comply with many statutory requirements. This includes acquiring third-party insurance, paying vehicle tax, registration and the use of relevant safety equipment. It could be theoretically possible for some MMVs to comply with these requirements. However, few are capable of fully complying in the current practical sense in which we understand vehicles to be registered: for example, unicycles are not capable of bearing a registration plate large enough to be read from a distance (whether by a person or a camera).
While it is practically possible (and even commonplace), it is not lawful to use ‘motor vehicle’ MMVs on the pavements or on cycle lanes.
Footpaths: All MMVs (including e-bikes and e-scooters) are forbidden from footpaths (section 34, Road Traffic Act 1988).
Cycle lanes: Apart from certain e-bikes and e-scooters, MMVs are prohibited from cycle tracks, cycle lanes on roads, or other spaces dedicated to pedal cycle use only (section 21(1), Road Traffic Act 1988).
Therefore, there is limited public space in which MMVs can be used lawfully. The only potential lawful place is on the roads, but the insurance and licencing requirements are likely to be virtually (or in some cases entirely) impossible to comply with – at least on our current practice for registration: by a visible plate on the vehicle which in turn (via databases) allows the identification of its user. Our system of compulsory third-party insurance rests, practically, upon that plate.
Criminal Law
It is an offence to use a motor vehicle on the road which does not comply with lawful vehicle requirements and doing so can lead to fines or licence points. It is also an offence under section 72, Highway Act 1835 to use an MMV on a footpath and doing so can result in a fine of up to £500.
Further, a driver of a MMV can also be found liable of many other fault-based driving offences such as dangerous driving, speeding, driving under the influence or ‘causing death by…’ type offences, which lead to more serious sentences (see the Road Traffic Act 1988).
Insurance of MMVs
Under section 143 of the Road Traffic Act 1988, users of motor vehicles must be insured:
“(1) Subject to the provisions of this Part of this Act—
(a) a person must not use a motor vehicle on a road or other public place unless there is in force in relation to the use of the vehicle by that person such a policy of insurance as complies with the requirements of this Part of this Act, and
(b) a person must not cause or permit any other person to use a motor vehicle on a road or other public place unless there is in force in relation to the use of the vehicle by that other person such a policy of insurance as complies with the requirements of this Part of this Act.
(2) If a person acts in contravention of subsection (1) above he is guilty of an offence.”
Whether or not an MMV is classified as a “motor vehicle” is influenced by that insurance rule. As the High Court in Winter v DPP (Michael Supperstone QC, as he then was) said in 2002 of the electric tricycle, to which cosmetic pedals had been added in a second attempt to avoid the “motor vehicle” classification, the “capability of propulsion” exemption (in regulation 4(b) of the Electrically Assisted Pedal Cycles Regulations 1983, as they then stood, under section 189 of the RTA 1988) should be applied purposively, in the interest of maintaining the compulsory third-party insurance requirement of section 143 of the Road Traffic Act 1988:
“Mr Bryant-Heron, appearing on behalf of the prosecutor, invites me to have regard to the policy behind s.143 of the Road Traffic Act 1988, namely to safeguard road users and pedestrians from uninsured injury from a mechanically powered vehicle, by providing for compulsory insurance. In my judgment Mr Bryant-Heron is correct in his submission that a purposive construction should be adopted to reg.4(b) to give effect to the intention of Parliament, which must be to require the pedals on an electrically assisted pedal cycle to be capable of propelling the vehicle in a safe manner in its normal day-to-day use. On this construction it is not necessary to read any additional words into reg.4(b) . However in the alternative I would read (as Mr Bryant-Heron submitted and the Crown Court accepted) the words “fitted with pedals by means of which it is capable of being propelled” as meaning that the vehicle is “reasonably capable of being propelled” by the pedals: see Burns v Currell [1963] 2 Q.B. 433 and Director of Public Prosecutions v Saddington [2001] R.T.R. 227. The critical finding of fact in the present case is that it would be impossible for anyone to use this machine safely on the roads if reliance was placed on the pedals alone.” (para.8).
Furthermore (as that example shows), questions of classification are underpinned not just by policy, but also by practicality.
E-bikes
There is special separate statutory category, which allows e-bikes that comply with certain requirements not to be classed as ‘motor vehicles’ (‘compliant e-bikes’) (section 140, Road Traffic Regulation Act 1984 and section 189, Road Traffic Act 1988).
The technical requirements necessary to count as a compliant e-bike are laid out in the two sets of regulations, being the Electrically Assisted Pedal Cycles Regulations 1983 SI 1983/1168 and the Electrically Assisted Pedal Cycles (Amendment) Regulations 2015 SI 2015/24. Some of the key requirements for e-bikes are that they must:
- be fitted with pedals capable of propelling it,
- not exceed a maximum continuous power of 250 watts,
- cut off electrical assistance when the vehicle reaches 15.5 mph,
- have white/red lights at the front/back.
There are no requirements for them to have only two wheels or for a weight limit.
Compliant e-bikes can lawfully be used on the roads and on cycleways in the same way as regular push bikes. They need not be registered, pay road tax or be insured. The rider does not require a licence, nor must they wear a crash helmet, although under section 32, Road Traffic Act 1988 they must be least 14 years old.
If an e-bike does not meet all the requirements, then it does not fall into the compliant e-bike exception and will remain classed as a motor vehicle and subject to the same rules as other MMVs. See, for example, Winter v DPP (above).
Criminal Law
Even compliant e-bike users are riding ‘mechanically propelled’ vehicles. Therefore, riders also remain potentially liable for certain driving offences which a push-cyclist cannot be convicted of, such as offences for careless or dangerous driving and certain ‘causing death by…’ offences. An e-bike rider can be convicted of driving while unfit through drink or drugs as this applies to mechanically propelled vehicles, but they are not subject to the prescribed drink driving limits which apply to motor vehicles (see sections 4, 5 and 5A, Road Traffic Act 1988).
E-scooters
An exception has not yet been created for e-scooters in a manner akin to e-bikes, but a legislative change seems likely to come soon.
Trials
At present, trials are underway which allows ‘trial scooters’ to be rented to the public by agreed operators. The House of Commons note explains the purpose of the trial:
“The trials will be used will to inform future government policy and possible legislative change. Trials have been launched in 32 trial areas across a mixture of towns, cities, local authorities and combined mayoral authority areas. The Transport Committee welcomed the Government’s e-scooter trials ahead of work to examine the legal status of e-scooters, which they said should draw on lessons from other countries so as to avoid potential negative impacts on pedestrians and disabled people.”
These rented scooters can then be used lawfully on public road, including cycle lanes, within stipulated zones. The legislative basis for this trial is the Electric Scooter Trials and Traffic Signs (Coronavirus) Regulations and General Directions 2020 (SI 2020/663). The trial end date has been extended until March 2022.
There are various manufacturing requirements for e-scooters in the trials, for example they must:
- have a max continuous power rating of 500W,
- be without pedals capable of propelling the vehicle,
- be for solo use,
- have a maximum speed of 15.5 mph,
- have two wheels,
- have a mass of 55kg or under, and
- have handlebars (which means that unicycles are not capable of coming under this trial).
The trial e-scooters can have some form of seating on them. Use of helmets is advised but it is not mandatory.
Additionally, the trial e-scooters must be covered by some motor vehicle insurance policy (which the rental operators will have in place to cover users) and any users must be over 16 with at least a provisional driving licence.
All scooters not on the trial are subject to the usual MMV rules and so cannot be lawfully used on the roads. It remains to be seen whether legal private e-scooter usage will be extended to the general public following the conclusion of this trial.
Conclusion
In general, MMVs, like ‘traditional’ motor vehicles, are subject to the many legal requirements applied to the use of motor vehicles, including compulsory third-party motor insurance under the Road Traffic Act 1988, unless they fall within one of the exceptions (such as “invalid carriages” and E-bikes).
Whether those exceptions are established for new types of MMVs remains to be seen. Innovation in MMVs seems likely to continue, so issues of MMV classification are likely to come before the courts again.
The motor insurance industry (and, at its core, the Motor Insurers’ Bureau) watches the debate closely. Historically, the introduction of compulsory third-party motor insurance (in the Road Traffic Act 1930) was an especially risky step from the insurers’ perspective. It was not extended to all road-users capable of causing injury. Cyclists, for example, are not required to be insured, though many have insurance as a matter of choice.
The exclusivity of compulsory motor insurance – to “motor vehicles” – is not necessarily just. As with the absence of compulsory insurance for cyclists, behind the legality of the use of MMVs are practical questions of enforceability of rules. Many of those questions rest upon identification of the user of the vehicle.
E-scooters remain in the motor vehicle category for now, if used (illegally) outside the permitted trial rental schemes. But, after the trial, Parliament will need to decide whether the public use of privately-owned e-scooters must remain unlawful, or whether this is a form of useful transport which must be accommodated within our existing regime – including, chiefly, third-party motor insurance. The fact that the first statute regulating automated (AKA autonomous) cars is an Act bringing those cars into the compulsory third-party motor insurance scheme might be a sign of the way ahead. That Act (the Automated and Electric Vehicles Act 2018) pointedly does so by making the vehicle – not the user – the subject of the liability: a radical step in insurance law.
The decision on e-scooter regulation should focus intensely upon practicalities – upon both the potential benefits and the potential harms of MMVs. The law must adapt. A small but important part of the solution might lie in this question: will the registration plate of the future remain a large piece of plastic, or might it be a smaller electronic device on or within the vehicle?
That brings us into another debate, about tracking of personal transport, and thereby of the person. Whether such tracking is permissible in the interests of public safety, or an impermissible invasion of individual privacy, remains to be adjudicated – in all likelihood in a variety of situations and legal contexts. The use and monetisation of data will, as ever, inform that debate.
It will not be a swift legal journey. It might start with, but go far beyond, the e-scooter itself.
