E-scooters: Trials and tribulations

Recent Parliamentary discussions on e-scooters have described a “catastrophe waiting to happen,” with criticism of the Government for “not leading but lagging behind the rest of the world”.

The Labour MP, Ben Bradshaw, noted last week “we will soon reach the second anniversary of the e-scooter trials at a time when every other developed nation has either legalised and regulated them or has committed to doing so.”

Despite the current legal and regulatory quagmire around the legality of e-scooters in the UK, it appears unlikely to be resolved any time soon.  The decision of the Department of Transport to further extend the ongoing hire scheme trials to November 2022 was sensible; putting the brakes on the limited legal use of e-scooters without a full package of legislation and regulation available would clearly be a mistake.

However, this decision underscores the lack of clear approach for dealing with the use of the hundreds of thousands of privately-owned e-scooters on public roads and spaces. The number of accidents involving e-scooters is increasing, with no formal guidance on protective clothing. Warnings on legal use at point of sale appear to be having minimal impact.  The Government were keen to emphasise that offenders are being fined and penalties are being given out, but the status quo is insufficient.

So, what can we expect in the coming months?

Extension of approved trials

The approved hire schemes have been in place since 2020. Despite an original deadline of November 2021, the Department of Transport extended the trials to 30 November 2022. It should be noted that the approved hire schemes do not currently operate in Scotland. Therefore, to the extent of e-scooters falling outside the hire schemes in England and Wales, the only legal use of privately-owned e-scooters is on private land with the agreement of the landowner.

During the aforementioned Parliamentary discussions, the Government stated that the extension of the trials will enable data gaps to be filled. Changes can also be made to ensure the trials are as safe as possible and to establish best practice for shared micro mobility services.

The Government has stated it is working as quickly as possible to develop a legislative framework, which will be set out in primary legislation, in order for e-scooters to be ridden legally.

The Minister for Transport, Baroness Vere, stated that any new measures will be "designed to create a much clearer, fit-for-purpose and fully enforceable regime for e-scooters and other micro-mobility devices. This will include robust technical standards and new rules for private and rental e-scooters."

However, the debates highlighted that the recent changes to the Highway Code represented a missed opportunity including advice and guidance on the use of e-scooters. The consensus was clear; the UK Government is lagging with legislative developments in this area, not leading.

Where next?

The ever-increasing numbers and usage of privately owned e-scooters do not exist in a vacuum and cannot be ignored. The current position that enforcement of fine and penalties is a sufficient deterrent is not sustainable. Similarly, the reliance on traders to provide the necessary information to consumers advising that against uses in public spaces is not a substitute for regulation.

The Motor Insurers Bureau, for one, as the body responsible for dealing with uninsured e-scooter related injuries would welcome clarity. There also remain questions of the position of those riding privately-owned e-scooters who are injured by a third party whilst riding illegality. Do defendants have a defence to any such claims? 

Having now backed itself into a corner, the UK Government now needs to legislate at a pace consistent with the increasing presence of e-scooters on the roads. Of course, this then begs the question of; which direction is the Government likely to take?

The stated parameters of the hire schemes themselves may give a steer, specifically that hired e-scooters require a valid insurance policy and the user needs to have a valid full or provisional driving licence. Similarly, the restriction of use (in theory, as opposed to in practice it seems) to the road and not the pavement may inform future regulation.

Additional clues as to what the legislative changes may include can be found in the House of Commons research briefing published in September 2021. The guidance incorporates acknowledgement from the Department of Transport that the UK should draw on lessons from other countries in order to avoid potential negative impacts on pedestrians and disabled people. For example, countries such as Germany and France have introduced speed limits for the scooters (ranging from 12.5mph to 15.5mph), age restrictions in Germany, and several Australian states have made safety helmets mandatory.

Eventual success?

E-scooters do pose a risk to both their users, pedestrians and other road users when not used correctly. The Government’s intention to create a “a safe, proportionate and flexible regulatory regime” should be welcomed, as should the extension of the trial period. However, the longer the Government takes, the greater the risks become. It is obvious that as more privately-owned e-scooters take to the roads, the harder the challenge to enforce penalties. The new extension must be used to gather relevant data to inform the regulatory regime.  The Scottish Government indicated in January that whilst there are no trials ongoing in Scotland, it is engaging with the Department of Transport policy team and monitoring “trends as a matter of course in order to inform future policy.”

However, there is no doubt that there are benefits to increased use of e-scooters. Once clear policies are developed and the legal position is made clear, this modern transport method will carry economic benefits. Micro-mobility will help to alleviate road congestion and pollution in urban areas. The ready availability of e-scooters from shared providers in cities may also reduce the proliferation for privately-owned e-scooters.

Ultimately, what is clear is that the Government is under pressure not to allow the extension to go to waste. The reasonable expectation should be that draft legislation will begin to trickle through during 2022 in anticipation of a new regulatory regime for e-scooters.