Out-Law Analysis 5 min. read
21 Jul 2015, 12:17 pm
The code is a 'light touch' framework that encourages the testing of driverless vehicles in the UK almost immediately.
The code has no legal status, but non-compliance with its provisions could be held against those testing driverless vehicles in the event that accidents occur and liability is later considered. It is therefore imperative that vehicle manufacturers taking advantage of the new testing environment conduct detailed risk assessments and engage widely with local authorities, the public and other stakeholders to raise awareness and demonstrate the benefits that driverless technology could bring to the UK road network.
Testing driverless vehicles – the code
Plans to publish a code of practice on the testing of driverless vehicles in the UK were included in a government report published in February. The report concluded that the UK's legal and regulatory environment did not present a barrier to the testing of 'driverless' vehicles on public roads.
The code (14-page / 5MB PDF) has now been published by the Department for Transport (DfT). It addresses a number of issues relevant to the testing of driverless vehicles - from vehicle and test driver requirements, to insurance, data protection and cyber security issues.
Broadly, however, the message the code delivers is clear – you can test driverless vehicle technology in the UK now, provided a test driver is present and takes responsibility for the safe operation of the vehicle; and the vehicle can be used compatibly with road traffic law.
As a result, those wishing to test driverless vehicles in the UK should acquaint themselves with the relevant legal requirements.
Driverless vehicles will need to have successfully completed in-house testing on closed roads or test tracks prior to being tested on public roads or in other public places. This will ensure the technology is not untried or untested and help provide the public with a degree of comfort that the technology is safe and fit for purpose.
In addition to this, throughout the duration of any in-house and subsequent public trials, testers should keep a complete and accurate audit trail of their findings. In the event of a future collision or dispute, this could help demonstrate that the testing organisation has acted reasonably at all times.
What does the code say about insurance?
The code reiterates that testing driverless vehicles on public roads in the UK without insurance is generally prohibited under the law. The same "statutory requirements" on motor insurance that apply to vehicle drivers also apply in the context of driverless car testing, it says.
It is not clear whether specific insurance policies covering the testing of driverless vehicles will generally be made available, although it is likely that bespoke insurance products could be obtained from specialist providers.
Stakeholder engagement should form part of risk assessment exercises
The code requires those planning to test driverless vehicles to liaise with local highway authorities that have responsibility for the roads on which testing is to be conducted. Testers need to agree "specific infrastructure requirements" necessary for testing, such as traffic signing, with the individual road authorities.
However, testers should engage with a broader range of stakeholders too as part of a detailed risk assessment exercise prior to the testing of driverless vehicles commencing. This can help them to identify and overcome potential problems and reduce the likelihood of collisions or other disputes further down the line.
Indeed, the code does recommend that testers engage with the local emergency services and provide the registration numbers for the vehicles being tested to the police.
Develop a communications strategy
For driverless vehicles to take off in future, manufacturers need to build the public's confidence in the safety and benefits of the technology. This process should begin prior to and during the testing stage.
The code requires that testers of driverless vehicles develop a public relations and media communications strategy. The purpose of this is to extol the potential benefits of driverless and automated vehicles, explain the nature of the testing they will undertake, and outline the implications for other road users and what steps they can take to reduce any risks that arise from the testing. Communications should also aim to reassure and address the concerns that the public, particularly vulnerable road users, have about driverless car testing, according to the code.
The communications strategy is an important opportunity for driverless car testers to minimise the risk of collisions or other disputes. Engaging with road users and other affected parties will raise awareness that the tests are taking place and the benefits driverless technology can bring to the UK from both an economic and societal perspective.
The status of the code and the reasons for it
The code has non-statutory status and compliance with it is not legally binding. The government's stated ambition of establishing the UK as a centre of excellence for the development, testing and future commercialisation of driverless vehicle technology and the potential delay in developing a legally binding regulatory framework for the testing of driverless vehicles perhaps explain the approach it has taken.
In its regulatory review, the DfT confirmed that those wishing to test in the UK would not be required to obtain permits or provide surety bonds, as is the case in other jurisdictions such as the USA. It appears that the government is looking to use a light touch regime to attract testers from all over the world to come to the UK to test their technology and further develop the UK’s already thriving automotive sector.
This is because having an overly detailed, onerous and restrictive code could dissuade car manufacturers and other organisations from wanting to test in the UK.
Similarly, developing a legally binding regulatory framework for testing could take years and, at a time when other countries are considering their own approach to driverless vehicles, it is likely that the government did not want to risk losing potential testing organisations to overseas rivals.
However, the code comes with a warning message for testers. Despite not being legally binding, testers should note the part that states that a failure to follow the code when conducting driverless car testing could be taken into account by courts if accidents or other disputes arise.
Due to the relative infancy of the technology and the unpredictability of other road users, testers should be minded to follow the code in order to minimise the risk of them being found liable in the event of a collision or other dispute.
How might the code evolve?
We understand that the code will be reviewed on an on-going basis and could be subject to change. Initially there is likely to be input from early testers which will include the UK Autodrive, Venturer and Gateway consortiums. As a result, the code is likely to evolve over time to facilitate the carrying out of further tests while ensuring that the safety of other road users and the general public is adequately maintained.
Ben Gardner is an expert in driverless vehicle technology and regulation at Pinsent Masons, the law firm behind Out-Law.com.