In this first in a series of articles, we examine the way in which the NS&I Act defines what an “Advanced Robot” is and apply this to some specific examples of advanced robotics in use today.
The NS&I Act allows for HM Government to scrutinise and intervene in certain acquisitions made by anyone, business or investors, that could harm the UK’s national security.
An acquirer is now legally required to inform HM Government about the acquisition of entities operating in 17 designated “sensitive areas” of the economy.
This note looks at the potential impact on businesses operating in the field of “advanced robotics” and how certain examples of what might constitute an advanced robot may be treated under the terms of the regulations.
Accurately interpreting the technical definitions used in the NS&I Act to define the 17 sensitive sectors, and being able to apply them in practice to live transactions, will be a critical step in determining when to notify, and when not to.
Why is this important?
An acquirer of a qualifying entity carrying out certain activities within the field of robotics would be obliged to notify the authorities if it was intending to make such an acquisition. The entity would have be involved in:
- The development of advanced robotics;
- The production of advanced robotics; and/or
- The development or the production of core components specifically designed or modified for use in advanced robotics.
“Core component” includes such things as sensors, locomotion devices, energy sources, hardware or software, including the use of AI and/or communications capabilities.
What is an “advanced robot” in this scenario?
Paragraph 3 of Schedule 2 of the NS&I Act states that “advanced robotics” means a machine that meets either or both of the descriptions in Paragraph 4 and is capable of carrying our multifunctional physical actions, including positioning or orientating materials, parts, tools, special devices or itself through variable movement in there-dimensional space.
Paragraph 4 explains that a machine must meet either of the following descriptions, or both, in order for it to be an “advanced robot”:
- having the characteristic of autonomy set out in Paragraph 5; and [/or]
- being capable of using its sensors to carry out sophisticated surveillance and data collection in respect of any aspects of its environment in order to collect, store or communicate to the operator, significant volumes of high-fidelity data.
So, what is “autonomy”?
Paragraph 5 sets out the characteristics of autonomy in this context and can be summarised as follows: An advanced robot has the characteristics of autonomy if it is capable of performing actions that are autonomous (works without human involvement) or are independent of human involvement but require tele-operation or manual control, are pre-programmed or are controlled via other robotic or software systems.
For any acquirer of an entity that operates in this field that wants to understand whether the entity’s activities fall within the ambit of the NS&I Act, it is probably better to start with the contents of Paragraph 5 and work backwards.
We have looked at three examples of “advanced robotic systems” that are in existence today and applied the terms of the NS&I Act to understand whether an acquirer of an entity performing such activities would be obliged to inform HM Government of its acquisition.
- Would an acquirer of an autonomous vehicle (AV) manufacturer be caught by the NS&I Act?
A category 5 AV which is designed to drive fully autonomously from its human passengers without their involvement would be independent of human control (5(1)) and would use “physical, sensory and cognitive capabilities in combination, to decide on and implement a course of action that will vary depending on [the environment or the behaviours, dynamics, properties or arrangement of objects in the environment which may include the ability to self –navigate…(5(2)]”
An AV would therefore satisfy Paragraph 4 in the sense that it has “autonomy” and therefore by virtue of Paragraph 3, is an “advanced robot”.
An acquirer of a company engaged in the production of AVs, or suppliers of parts for the same, would therefore have to notify the relevant authorities of the acquisition.
- Would an acquirer of the company that owns a robotic surgeon system like the da Vinci robotic prostatectomy system be caught by the NS&I Act?
This system is a teleoperated surgery system that is used primarily in prostate surgery. Would it satisfy the required level of autonomy under Paragraph 5?
It would not do so under the first limb of 5(1), as it would not be independent of human control but it could satisfy the second limb in 5(1)(b) in that it would be complemented by manual, tele-operation by a human.
This would mean, for the purposes of Paragraph 4, that the da Vinci system would fall within the description of an “advanced robot” because it satisfied 4(a) and had the relevant characteristic of autonomy set out in Paragraph 5. Further, under Paragraph 3, an “advanced robot” only has to meet one of 4(a) or (b) or both and be capable of carrying our multifunctional physical actions, including positioning or orientating materials, parts, tools, special devices or itself through variable movement in three-dimensional space.
This final element may be debatable depending on how the da Vinci system operates – but if it is capable of positioning or orientating materials, then it may well constitute an “advanced robot” for the purposes of Schedule 3.
- Would the acquisition of a manufacturer of a robotic lawnmower be caught by the NS&I Act?
Paragraph 5 – it would be a robot that would most likely be pre-programmed to perform certain tasks, avoid obstacles and re-charge itself (5.1(b)(ii)). It would use its sensors to implement a course of action (5(2)(a)) and it may or may not have the ability to adapt and learn – but it would almost certainly display the required characteristics of autonomy set out under Paragraph 5.
Paragraph 4 – As per the above, it would display the relevant characteristics of autonomy but it probably is not capable of using sensors to carry out sophisticated surveillance and data collection in order to collect, store or communicate to its operator, significant volumes of high-fidelity data.
However, Paragraph 3 makes it clear, in its description of what an “advanced robot” is, that the machine has to meet either or both of the descriptions in Paragraph 4 (which our robotic lawn mower would) and is capable of carrying our multifunctional physical actions, including positioning or orientating materials, parts, tools, special devices or itself through variable movement in there-dimensional space. It would therefore seem that our humble robotic mower meets these characteristics and could therefore be an advanced robot for the purposes of the NS&I Act.
However, guidance from HM Government (National Security and Investment Act: guidance on notifiable acquisitions updated 4/1/22) specifically excludes lawn mowing robots as they are seen as being “out of scope” of the Advanced Robotics part of the NS&I regulations. This is because it is a “widely available consumer good”.
It will be very interesting to see how these rules are interpreted in the future!
In our view, the drafting of these regulations does cause issues and none more so than Paragraph 4.
It would be more helpful, we would suggest, if a machine had to meet both of the descriptions in Paragraph 4 (as Paragraph 4’s actual drafting suggests) rather than either of the descriptions, (as the drafting of Paragraph 3 suggests).