e-scooters, urban mobility, law and risk – where next?

I spent 24 hours in Paris at the end of the summer and e-scooters seemed to be everywhere. With parts of the metro suspended for improvements I was tempted to use one – scan the QR code, get the app and go – but decided to leave that to the locals, at least for the time being.

How, if at all, to permit and effectively regulate the use of e-scooters in public spaces turns out to be a very topical question. Just this weekend the French authorities implemented new rules bringing e-scooters into the highway code. These include an age limit of at least 12, prohibition of use on footpaths, speed restrictions and insurance arrangements. The French government’s three page infographic about its new law is available here (in French).

Back in the UK, matters are evolving more slowly. At the beginning of August, the House of Commons Library produced a short paper E-scooters: Why are they not legal on UK roads? which sets out the existing regulatory barriers to their use on UK roads and pavements and hints at a possible government consultation later this year.

The Commons paper also referred to the experience in Paris, reporting that while “12 start-up companies provide e-scooters around the city, the mayor recently imposed restrictions on their use. These include fines for driving them on the pavement (€135) or parking them in doorways, crosswalks and other busy places (€35).” I saw multiple examples of those behaviours during my short trip, but no obvious signs of enforcement. While seeing couples riding together on scooters was also a common – certainly romantic, definitely risky – sight, it’s worth noting that the new French law prohibits carrying passengers.

Although government consultation in the UK remains merely a possibility – and something which could fall away given wider political developments – it is already underway in Ireland, with the relevant department (DDTAS) consulting on the issues raised and seeking responses by 1 November. Unsurprisingly, questions of scooter registration and licensing, rider age and competency, speed restrictions, road and pavement use and insurance are all raised in the consultation paper (which is available on the gov.ie hub here). The views submitted will inform the Irish government’s policy on these critical issues.

The DTTAS consultation follows a detailed report commissioned by the Irish Road Safety Authority (and prepared by TRL, the Transport Research Laboratory based in Berkshire) which this June recommended formally legalising their use, subject to necessary and appropriate restrictions and safeguards. The Irish Times has shrewdly pointed out that the consultation is “something of a catch-up exercise because, over the past few years, e-scooter use has grown dramatically in spite of official resistance and the department’s view that they are illegal under road safety legislation.”

The UK government appears to be of much the same view and confirmed that e-scooters should be treated like any other motor vehicle under the Road Traffic Act 1988, including being subject to all the licensing, registration and insurance requirements (although whether that position is entirely realistic seems very debatable) . Transport Minister Baroness Vere said in July, in perhaps something of an understatement, that “At present, it is difficult for electric scooters to meet these requirements. Therefore, it is illegal to use an electric scooter on public roads and pavements.”

As has been the case in Paris and Dublin, the existing law in the UK does do not appear to have hampered the growth of the use of e-scooters on roads in London and elsewhere: far from it, in fact. Their use is without doubt an attractive alternative to public transport and to conventional motor vehicles. But it also raises important regulatory issues. The TRL report puts the challenge for policymakers in responding to the growing use of e-scooters, despite formal legal prohibitions, in very clear terms: “In most countries there is increased uptake by users, regardless of the legal situation, and little enforcement of any regulations that exist and hence an outright ban would be both counterintuitive and impractical. Prohibition without justification is generally held to be unsustainable.”

While the drive for safety for all road users has to be the first strand in the debate on enabling e-scooter use, it would be naïve to ignore the real and unsettling prospect of serious accidents happening. There has already been a fatality in the UK involving an e-scooter rider: TV presenter Emily Hartridge died in a collision with a lorry in Battersea in June.

Such accidents will give rise to claims, raising new questions such as the standard of care to be expected of a reasonable e-scooter user or the relevance of the ex turpi causa defence given that their use is, at present, illegal? Other important factual elements will also bear on issues of blameworthiness, for example whether or not the rider was wearing a safety helmet, the rider’s blood alcohol level and even the visibility of the e-scooter to other road users due to lights and/or high visibility clothing (not that I saw any scooter riders in gilets jaunes in Paris, by the way).

Insurance issues will inevitably also be key considerations, such as the problems of risk-pricing in a completely new area and the need for viable distribution models. And a positive choice has to be made about whether the use of e-scooters should come within the scope of compulsory motor insurance, with Baroness Vere’s response suggesting that it should (as has just been introduced France). A technical question which looks likely to resurface is whether e-scooters ought, as is the case for electric bicycles, “not to be treated as motor vehicles” under road traffic legislation?

For all these reasons it will definitely be worth watching the extent to which the insurance industry and the legal sector take part in the consultation in Ireland, the results of which look very likely to inform a similar, if slightly later, debate in the UK.

Kinley_A-4_web Written by Alistair Kinley, director of policy and government affairs.

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