Automated vehicles – Law Commissions drive forward regulatory reform
On 26 January 2022, the Law Commission of England and Wales and the Scottish Law Commission published its final report on automated vehicles.
As technology has progressed, a number of consultations and projects into automated vehicles have been commissioned at Government level and increasing levels of autonomy have been permitted in recent years. For example, in April 2021 the UK Government announced that it would allow Automated Lane Keeping Software type approved self-driving vehicles on the roads. However, the Law Commissions’ joint report goes further, considering the legal framework required for a future with fully automated (or driverless) vehicles. Such a fundamental shift in control requires traditional concepts such as “driver” to be reconsidered afresh and legal liabilities redrawn.
The Law Commissions have proposed that a new Automated Vehicles Act be enacted to regulate automated vehicles on UK roads. The joint report sets out detailed recommendations which address key areas of reform to the legal framework to facilitate the safe deployment and continued use of automated vehicles.
This article considers the following key areas of reform in contemplation:- legal accountability, safety standards, the proposed regulatory scheme, insurance and offences.
In a future with automated vehicles, one of the largest challenges to be addressed is the concept (and allocation) of legal accountability for the vehicle. Where an automated vehicle can drive itself, the question naturally arises – who is responsible, legally, for the safety of the vehicle? There are several possibilities, including the driver, manufacturer, and insurer.
Traditionally, most legal obligations are imposed on the driver of the vehicle. However, the boundaries of legal liability are more nuanced and complex where automated driving features are engaged and the vehicle is “driverless”. Matters are made more complex still by the numerous situations in which the vehicles will operate, with automated driving system (ADS) features engaged only some of the time.
The boundary of legal liability must be clear and unambiguous, with all actors clear in their obligations. Drivers must know when they are required to be alert and engaged in the driving task, and manufacturers must know their continuing obligations for the safety of the vehicle. In short, a complex new framework addressing legal accountability must be devised.
The Law Commissions proposed to address this issue by distinguishing between types of vehicles, and the introduction of new legal actors.
The Report recommended the following new legal actors be introduced in the Act:-
- User-in-charge: the individual in the driving seat;
- The NUIC operator: an individual who is remotely operating an automated vehicle which has been designed to have no user-in-charge; and
- The Authorised Self-Driving Entity (ASDE): the manufacturer or developer which presents the vehicle for authorisation (see further below).
Vehicles equipped with “user-in-charge” features
It is proposed that once a vehicle has been authorised as having a “self-driving” ADS features, and those features are engaged, the user-in-charge is not responsible for the dynamic driving task. However, the user-in-charge must be in a position to take over operation of the driving controls if required and would become responsible for driving in the event that the ADS feature issued a transition demand. Further, while ADS features are engaged, the user-in-charge would remain responsible for other driver responsibilities that do not involve active control of the vehicle (eg insuring the vehicle).
Where ADS features are engaged, it is proposed the user-in-charge will be immune from a wide range of driving offences. If the ADS feature rather than the user-in-charge caused the vehicle to commit a criminal offence, the report recommended that this be addressed between the in-use regulator and the ASDE.
Vehicles with no capacity for a driver to take control
Some vehicles may be fitted with ADS features authorised for use without a user-in-charge. In that circumstance, it is proposed that legal liability for the operation of these vehicle will be imposed on the NUIC operator, with persons in the vehicle are treated as passengers only. However, as above, if the ADS feature caused the vehicle to commit a criminal offence, this matter would be addressed between the in-use regulator and the ASDE.
Safety is a principal theme in the Report, and the Law Commissions are clear that automated vehicles should be safer than those driven by human drivers. However, the Report did not specify how high the safety standard should be. Instead, it recommended that the Secretary of State for Transport should publish safety standards against which the safety of automated vehicles is measured. These standards should not cause greater risks to road users, such as cyclists and wheelchair users, than conventional vehicles.
Further recommendations addressed in the Report include the requirement for marketing which clearly distinguishes between automated vehicles and driver-assist functions and for clear information to be provided to owners of automated vehicles which include details of the activities that a user-in-charge can undertake while an automated function is engaged.
Proposed regulatory scheme
The Report recommended the creation of two new regulatory schemes to ensure vehicle safety. The first will consider vehicles pre-deployment before they are authorised on the road, and the second will consider safety while the vehicles are in use.
The Report recommended that all automated vehicles must have an ASDE, which is legally responsible for the performance of the vehicle. A vehicle manufacturer or developer which puts a vehicle forward for authorisation as a self-driving vehicle would be an ASDE. The ASDE can be a partnership of a vehicle manufacturer and software developer, but the ASDE must show that it was closely involved in assessing the safety of the vehicle.
As noted below, the Law Commissions recommended that a new authorisation stage be created before an automated vehicle is authorised to be self-driving. The Law Commissions recommended a high test for a vehicle to be authorised as having self-driving features – commenting that it must be safe even if a human user is not monitoring the driving environment, the vehicle or the way it drives.
The Law Commissions also recommend that continuing duties be imposed on ASDEs for the life of automated vehicles on the road, with ASDEs also being required to work with the regulator. This is commented upon further below (Obligations on vehicle manufacturers).
With changes to road rules and the driving environment, and updates to software and technology, it is clear that there will be a need for continued regulatory oversight throughout the life of a vehicle.
The Report recommends that an in-use safety regulator is established, which will be responsible for:-
- evaluating the safety of automated vehicles against the published safety standards;
- investigation of road traffic offences involving self-driving vehicles; and
- ensuring that users of automated vehicles are provided with clear and effective information about the vehicle by the manufacturer or provider of the vehicle.
It is thought likely that the Driver and Vehicle Standards Agency (DVSA) will take on this role in addition to its current responsibilities.
Obligations on vehicle manufacturers
As part of pre-deployment safety, the Law Commissions recommended that an automated vehicle be required to receive an additional authorisation before it can be registered.
After the vehicle has been approved in the usual way, the Law Commissions recommended that a vehicle should undergo a new authorisation stage before it is authorised to be self-driving. The requirements at the authorisation stage would impose significant, and ongoing obligations on manufacturers.
Under this scheme, the Law Commissions proposed that the onus would be on the ASDE to show that the vehicle meets the tests for authorisation. As a minimum, the Law Commissions recommended that the ASDE should be expected to present evidence of approval, a safety case and an equality impact assessment. As part of this assessment, the authorisation authority would also consider whether the ASDE has sufficient skill and financial resources to keep the vehicle up-to-date and compliant with traffic laws in Great Britain and to deal with any problems that arise.
It is also recommended that there be other ongoing duties imposed on ASDEs in relation to safety and data as a condition of authorisation. These duties include an obligation to ensure that the vehicle continues to drive safely and in accordance with road rules, and to make relevant updates where necessary and/or mandated by the in-use regulator. With regard to data, the Law Commissions recommended that ASDEs be required to disclose data requested by regulators and co-operate with the road collision investigation unit, and also ensure that relevant vehicle data is accessible to insurers and users so that civil claims can be decided justly and fairly (see further below).
The law of insurance has been developing in this area in recent years in response to advancements in technology. In 2018, following the Department of Transport’s consultation paper, Pathway to Driverless Cars: proposals to support advanced driver assistance systems and automated vehicle technologies, the Automated and Electric Vehicles Act 2018 (2018 Act) was enacted to address the issue of liability in accidents involving automated vehicles.
The 2018 Act radically amended the position on civil liability – setting out a “no fault” liability provision. In essence, the insurer (rather than the driver) of the car is liable to a third party in the event of an accident. Whilst the insurer may bring a secondary claim against the individual or party responsible for the incident, the insurer is liable for the accident in the first instance. Clearly, these provisions have significant consequences for the insurance sector.
The Law Commissions recommend that the 2018 Act should continue to apply, albeit with the current listing procedure to be replaced with the pre-deployment authorisation procedure for automated vehicles (outlined above). However, perhaps in acknowledgement of the potential issues that may arise under this framework, the Law Commissions commented that they hoped that "…the UK Government will act quickly to review the legislation if disputes under the  Act are causing delays for claimants or preventing insurers from pricing policies."
The Report also contains recommendations concerning both the retention and sharing of data in respect of insurance claims. It was recommended that data be stored by ASDEs for 39 months to be available for insurers to assess claims. Further, where data is "necessary to decide claims fairly and accurately", the Report recommended that the new Act should impose a general duty on ASDEs controlling autonomous vehicle data to provide that data to insurers. If insurers and manufacturers cannot agree on how the relevant data should be shared, the Report recommended that the in-use regulator should issue a code of practice.
A further significant area of proposed reform is offences. In addition to recommending new driving offences (for example, allowing an automated vehicle to be operated without a user-in-charge), the Law Commissions also recommended the introduction of offences committed by ASDEs and NUIC operators, and offences by senior managers and other nominated persons.
It was recommended that a duty of candour should arise when an ASDE puts forward a vehicle for authorisation or where a NUIC operator applies for a licence, or where these bodies respond to requests for information from the regulator. The Law Commissions recommended that where these bodies are communicating with the regulator (for example, when applying for authorisation or responding to a request for information), it should be a criminal offence to:-
- Fail to provide information to the regulator; or
- Provide information to the regulator that is false or misleading.
It was also recommended that offences can be aggravated where the incident related to an increased risk of an adverse incident occurring, and that incident caused death or serious injury. These offences would apply where the material is relevant to the safety evaluation of the vehicle. It is proposed that there would be a defence of “due diligence”, where the ASDE or NUIC operator could demonstrate that it had taken reasonable precautions and exercised all due diligence to prevent any misrepresentation or non-disclosure.
The Law Commissions also made proposals in respect of offences committed by individuals with involvement in the safety process. It was recommended that senior managers should face prosecution for breach of the duty of candour, and that the “nominated person” who signs the safety case for the new vehicle should be required to take active steps to ensure that the information submitted to the regulator is correct and complete.
The underlying rationale for all of these offences is to create a culture of transparency with the regulator, which will promote safety and public confidence and acceptance of automated vehicles. However, if implemented, the duties would impose a high level of accountability (and ongoing obligations) on these parties.
The Law Commissions have proposed wide-ranging regulatory reform in response to rapid developments in the technology supporting automated vehicles. The new Act is designed to address key areas of reform to the legal framework to facilitate the safe deployment and continued use of automated vehicles.
If enacted, the new Act would contain a complex new framework addressing legal accountability for a future with “driverless” cars. It is clear that the recommendations would involve considerable reform and increased obligations on certain actors across a range of sectors and industries.
If the recommendations of the Law Commissions are implemented, manufacturers and operators of automated vehicles would require to consider carefully the new obligations imposed upon them under the novel system of legal accountability – from pre-deployment safety standards and requirements for authorisation, through to the continued safe operation for the life of the vehicle.
The recommendations of the Law Commissions will now be considered by the UK, Scottish and Welsh governments, with legislative reform at a UK-wide level anticipated in the future.
Beyond the issues considered by the Law Commissions, the following policy areas of automated vehicle law reform are being led directly by the UK government and were excluded from the Law Commissions’ terms of reference:
(1) data protection and privacy;
(2) theft, cybersecurity and hacking; and
(3) land use policy.
Until the UK government reports on these areas, it remains to be seen how these key areas will be addressed under the new regulatory regime to govern automated vehicles.