Out-Law News | 25 Jan 2021 | 3:55 pm | 4 min. read
The UK government should set up a new national scheme for approving 'automated driving systems' (ADS) for use on roads in Great Britain without the need for human monitoring, the Law Commissions of England and Wales and Scotland have said.
In a detailed consultation paper that explores what changes are needed to UK regulation to anticipate the use of autonomous vehicles, the Law Commissions suggested the national ADS approval scheme could exist in parallel with an international approval scheme, providing manufacturers "with a free choice about how type approval is obtained".
"Either route would provide authorisation to put a vehicle incorporating an ADS onto roads in Great Britain," the Law Commissions said. "The difference is that national approval would allow the ADS to be used only in Great Britain, and not elsewhere."
The Law Commission said that the Road Traffic Act 1988 already provides UK ministers with the power to introduce new regulations for a new national ADS approval scheme. The approval system could work either by verifying that ADS's meet "a detailed list of specifications" set out in secondary legislation, or alternatively by validating that ADS's that do not meet the detailed list of specifications nevertheless meet equivalent standards on the basis of the "full safety case" they put forward, they said.
Now is the time to influence what the future regulatory system might look like
The Law Commissions are in the process of carrying out a detailed review of what laws need to change to support autonomous vehicles on UK roads. Their latest consultation is the third in a series of three papers exploring the need for regulatory reform. They are seeking feedback from industry and other stakeholders on its proposals up until 18 March 2021 and are expected to set out their final report and recommendations before the end of the year
Ben Gardner of Pinsent Masons, the law firm behind Out-Law, said it is vital that automotive manufacturers, technology companies and other businesses engaged in the future of mobility take the opportunity to shape the direction of regulation.
Gardner said: "In its third report the Law Commissions have started to get 'under the skin' of the existing regulatory landscape in the UK in particular building out existing concepts and developing detailed proposals in order to lay the foundations of what future driving laws might look like. They are starting to ask deeper and more practical questions, such as what constitutes 'safe', what does 'self-driving' really mean, and how should ADS be approved for use on UK roads? It will take time to formulate definitive answers to these questions and further collaboration will be required across government, industry, and beyond to move us towards the regulatory system that is needed for widespread roll out."
"With technology moving so quickly, the government cannot develop a future regulatory system fit for purpose and which meets the needs of transport users and transport providers by itself. It is therefore imperative that stakeholder feedback is obtained – that is a common theme throughout out each of the Law Commissions' consultations, with individuals and industry entitled to provide views, feedback and improvements to their proposals. Now is the time to influence what the future regulatory system might look like," he said.
The Law Commissions
Third consultation paper
Without a clear change to criminal liability, there is a risk that users may receive mixed messages and then be blamed for incidents they can do little about. The move to self-driving is therefore a leap rather than a step
In its earlier consultations, the Law Commissions proposed the creation of specialist agencies to investigate accidents involving automated vehicles as well as new legal concepts to try and deal with the allocation of liability for those accidents.
One idea they have developed is to require an 'Automated Driving System Entity' (ADSE) to be legally responsible for an automated vehicle. In its latest consultation, the Law Commissions elaborated further on the concept. It said the ADSE could be either the vehicle manufacturer, software developer or a partnership between the two. The ADSE "must show that it was closely involved in assessing the safety of the vehicle", however, and "must also have sufficient funds to respond to regulatory action and to organise a recall".
An ADSE would be liable for accidents and breaches of traffic rules, such as speeding, and responsible for recalls, updating software and continued compliance with type approval requirements. ADSE could also be legally obliged to ensure maps are kept up-to-date. ADSEs would be subject to regulatory sanctions for non-compliance, including improvement notices, fines or even withdrawal of approval in "serious cases". In addition, the Law Commissions have proposed new criminal offences where an ADSE misleads regulators, including an aggravated offence where this leads to a death or serious injury.
The Law Commissions have asked for feedback on where the "dividing line" should fall between ADS that can safely drive themselves without the need for human monitoring and those that cannot. Where the line is drawn is relevant to the liability regime for ADSEs and to the so-called 'user-in-charge', who the Law Commissions have defined as "a human who has access to the controls of an automated vehicle, and is either in the vehicle or in direct sight of it".
The consultation looks at the circumstances in which a user-in-charge may be asked to intervene to take control of "the dynamic driving task from the ADS", and sets out why defining when a vehicle is self-driving safely is important.
"The law needs to be clear about what is or is not self-driving," the Law Commissions said. "We do not think that a vehicle can be accepted as self-driving for some purposes (such as allowing the use of screens for non-driving related activities) but not for others (such as criminal liability). If a user is told that they may (for example) check their emails while the system is engaged, we do not think that they can be blamed for a collision caused by the ADS while they are distracted from the driving task. The AEV Act already makes the insurer civilly liable in these circumstances."
"Without a clear change to criminal liability, there is a risk that users may receive mixed messages and then be blamed for incidents they can do little about. The move to self-driving is therefore a leap rather than a step," they said.
18 Nov 2020