New laws give the green light to e-scooters

Answer

On 4 July 2020 new laws came into force which legalised the use of e-scooters across the UK. However, unlike their US counterparts, UK e-scooter enthusiasts pressed pause on planned celebrations, as they were left questioning why, despite the law change, they will be forced to leave their personal e-scooters at home.

Through analysing the previous legal framework and surrounding circumstances, this article explains how a combination of public confusion, ambition for a greener future and threat from an ongoing viral pandemic has led to a much-anticipated change to the law. And how that change, although delayed and cautious in approach, may be the very reason that the UK becomes the most successful country to integrate e-scooters into a post-lockdown society.

What was the law before the change?

Prior to the law change, all e-scooters could be bought but not ridden unless within the perimeters of private land.

Being powered by a battery motor, the Department for Transport (DfT) classifies ‘e-scooters’ alongside other futuristic modes of transport  (eg, hoverboards, go-peds and powered unicycles) as “powered transporters” (and not “personal light electric vehicles,” as commonly mis-cited) which, with the exceptions of electrically assisted pedal cycles (EAPCs) and mobility scooters, cannot be ridden on:

• bridleways or byways (s. 34, Road Traffic Act 1988);
• cycle lanes (s. 21(1), Road Traffic Act 1988);
• pavement (s. 72, Highway Act 1835); nor
• public footpaths (s. 34, Road Traffic Act 1988).

It can be observed from the list that public roads are not mentioned, and that’s because in theory e-scooters can actually be ridden on the roads. As powered transporters, the DfT regulates e-scooters in the same way it does  cars or motorcycles, meaning they must be registered, have passed an MOT and be taxed. Riders must also have a licence and vehicle insurance.

Here in lies the key issue – in order to pass a MOT, a vehicle must meet prescribed safety requirements, such as having indicators, a number plate and rear break light, among other things; all of which are not features of a typical e-scooter. Further, even if these requirements were met, the absence of a consumer market in e-scooter insurance serves as a conclusive barrier to their use on public roads.

Thus, while e-scooters are technically permitted to be ridden on public roads, the practical reality is that they can’t.

If practically illegal, why have and are so many e-scooters being ridden?

Despite the legal framework mentioned above, numerous illegal e-scooter sightings can be made daily. And while, some riders may actively be contravening the law, broader consensus indicates that these illegal sightings are the result of a plurality of confusion among the general public, which appears to be the case for three reasons.

The first concerns confusion with e-bicycles. Under the current legal framework, ‘e-bicycles’ have been re-classified from powered transporters to EAPCs. A distinct sub-category, which permits e-bicycles that meet certain requirements (ie, are limited to 15.5 mph) to be ridden on public roads without needing to meet the stricter requirements for powered transporters. Although a different mode of transport, evidence indicates that numerous e-scooter riders have simply assumed that the law applying to EAPCs also applied to e-scooters, so much so that Letitia Winter took the DPP to court in Winter v DPP.

The second concerns enforcement, or the lack thereof. Until relatively recently, the UK police force adopted a passive approach to e-scooters – resembling the Dutch approach to the regulation of marijuana. That being, while their use is illegal, provided there is no harm being caused little to no action would be taken. It wasn’t until 2 July 2019 and the unfortunate death of YouTuber Emily Hartridge that the approach drastically changed, with the police issuing riders with fines not exceeding £300 and up to six points on their licence. At present there is no reliable data on enforcement; however, one of the most notable incidents concerns a 15-year-old boy who was issued six points on his ‘future’ driving licence for riding his personal e-scooter at dangerously high speeds.

The third concerns the private land exception; some riders are in fact not breaking the law and are riding on private land. The most prominent example of this concerns the Queen Elizabeth Olympic Park in Stratford, where Bird has been operating a legal e-scooter rental business since 6 November 2018.

Public consultation

Despite the confusion and rider’s unfettered resolve for a change to the law, the first steps taken towards a change were in fact driven by economic and environmental concerns. On 16 March 2020 in collaboration with the Department for Business, Energy and Industrial Strategy, the DfT held a public consultation as part of the Future of Transport regulatory review, focusing on making transport “cleaner, safer, healthier, greener, cheaper, more convenient, and more inclusive”. The consultation resulted in the curation of a 12-month long e-scooter trial scheme, which was planned to take place across four ‘future transport zones’ in 2021. These future transport zones were to be backed by a shared £92 million fund and include Portsmouth and Southampton; the West of England Combined Authority; Derby and Nottingham; and the West Midlands.

The trial “will ensure we understand the potential impacts of a wide range of new transport types such as e-scooters, helping to properly inform any decisions on legalisation.”

 –  Grant Shapps, transport secretary

However, following the outbreak of covid-19, plans quickly changed. Determined not to enter a post-lockdown society defined by individual car journeys, and in dire need of reducing capacity on public transport (to accommodate social distancing), introducing new e-scooter legislation rose to the top of the government’s agenda. And on 9 May 2020 the DfT announced that it would drastically accelerate the trial scheme to start in Summer 2020 and expand it across the UK.

Without hesitation, on 18 May 2020, the DfT launched a public consultation on “urgent legislation”, providing a forum for the construction of the new legal framework. Chief among the results of the consultation was its conclusion on a definition of ‘e-scooter’. It was agreed that the suggested 12.5mph maximum speed limit should be increased to 15.5mph – in line with e-bicycles (a move reminiscent of the approach taken in Germany) – and that the power limit should be increased from 350 to 500 watts to enable scooters to handle steep inclines.

A second and more controversial point of contention concerned the potential inclusion of personal e-scooters in the trial. E-scooter enthusiasts claimed that this would reduce the spread of infection of covid-19 and allow citizens based in rural areas to benefit from the trial, where it was unlikely that a rental scheme would be profitable. However, despite these arguments, on 30 June Transport Minister Rachel Maclean announced that from 4 July 2020 the law would change to allow e-scooters to be hired, in approved trial locations, through a rental scheme only and operated in accordance with published guidance for areas and rental operators. This guidance requires all participating riders to have a full or provisional driving licence and be aged 16 or over. Rachel explained that the decision not to include personal e-scooters was due to the need to avoid a “flood of poor-quality scooters onto the streets” (as experienced in other jurisdictions) and to ensure that participating e-scooters met the maximum 15.5mph limit.

With participation open to all areas of the UK (subject to an approved application), e-scooter companies anticipate a surge in demand as local authorities pursue potential partnerships; already discussions have been had with Bird, Lime, Voi and Tier.

 “We already have more than 1,000 [e-]scooters in our UK warehouse, ready to be deployed and we will be shipping more over very soon.”

– Roger Hassan, chief operating officer at Tier

At the time of writing, Middlesbrough is the first and only area to confirm its participation in the scheme. It has partnered with e-scooter company Ginger and an initial 100 e-scooters will be deployed across Teesside, Darlington and Hartlepool.

As the scheme rolls out, the DfT will carefully monitor and evaluate its success on the basis of, among other things, safety; public perception; nature of trips taken; and unexpected outcomes. This will inform the DfT of the next steps to be taken and any permanent legislative change in future.

Conclusion

Although to the disappointment of e-scooter enthusiasts, the UK’s decision to adopt a localised trial scheme based on rentals, appears to be well reasoned and directly in response to the lessons learned from early adopters, such as Mexico, France and Germany. The early adopters have experienced mass thefts, cases of erratic driving and pavement clogging – reminiscent of the London experience with dockless e-bicycles. Thus, by being late to the e-scooter legalisation party the UK has been able to learn from others’ mistakes, facilitating the curation of a more considered approach which is designed to achieve a sustainable integration of e-scooters into British society.

The exact challenges that the UK will face in this integration are yet to be determined; and while the new laws fall short of allowing e-scooter enthusiasts to ride their personal e-scooters, the change is certainly a scoot in the right direction.

Miles Harmsworth is a trainee solicitor at Taylor Wessing.