Diversity and Inclusion - best laid plans
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Out-Law Analysis | 09 Aug 2015 | 9:00 am | 5 min. read
Traffic laws may need to be quickly modernised, or creatively interpreted and applied in the short term, if businesses are to choose the UK as the place to test emerging 'driverless' technology.
The rise of autonomous vehicles
Driverless cars is a term used to describe vehicles that rely on computer systems to deliver people and goods from place to place without the need for human intervention. There is growing consumer and business awareness of the developments in this space, owing to interest in this area from large car manufacturers and technology giants like Apple and Google and the media coverage this has created.
Testing of these types of autonomous vehicles on public roads is being encouraged by the UK government, which outlined a code of practice for testing driverless cars earlier this summer. 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.
The code, although non-binding, is intended to provide guidance on testing other autonomous vehicles too: those which do not comply with the requirements for road use or which are not intended for use on public roads, but on pavements and other pedestrianised areas instead.
Imagine autonomous vehicles delivering medicines to housebound patients, or retailers delivering goods to consumers via pavement-walking robots. The possibilities for intelligent mobility technology are endless, with one area where interest and investment is growing being in innovative transport systems.
Already, tests have started on the Meridian Shuttle, a driverless shuttle that it is proposed will transport people around the area of the O2 arena and the wider Greenwich peninsula. New driverless pods called LUTZ Pathfinders, which have been designed to transport people in pedestrianised areas, will also be tested in Milton Keynes.
However, whilst testing can be carried out relatively simply on test tracks and private land, the long term development of intelligent mobility technology is reliant on robust testing in public places, where a better assessment of health and safety, liability and privacy issues raised by the use of autonomous vehicles can be made in a 'real-life' environment.
Despite the UK government's new code and public support for the growth of the industry in the UK, current laws may present a barrier to non-road testing of autonomous vehicles.
The legal barriers to testing
The distinction between testing on public roads and in other public places is important. The code (14-page / 5.23MB PDF) makes clear that autonomous vehicle testers must "observe the road traffic laws that apply when vehicles are used in public places that are not public roads". It specifically cites traffic laws that "restrict where vehicles can be driven".
Under the Road Traffic Act of 1988 (RTA) it is an offence to drive a 'mechanically propelled vehicle' anywhere other than on a road or land that forms part of a road without having "lawful authority" to do so.
The concept of 'lawful authority' is not defined in the legislation and there are no examples of such authority being obtained previously.
However, testers may need a range of permissions from different stakeholders to carry out pavement testing, such as from local councils, residents, businesses and the police.
However, even if lawful authority to testing is obtained, testers could still be held to be committing an offence under other traffic laws.
Under the Highways Act of 1835, it is an offence to "wilfully ride upon any footpath or causeway by the side of any road made or set apart for the use or accommodation of foot passengers" or to wilfully lead or drive vehicles over such areas. Having 'lawful authority' to drive a mechanically propelled vehicle on a pavement under the RTA would not overcome the Highways Act restrictions.
The effect of this legislation is that it could place a significant barrier on the testing of new intelligent mobility technology that has the potential to revolutionise transport, health care, retail and other services.
The government has already acknowledged the restrictions facing testers as a result of existing legislation that was created before a world of potential new autonomous vehicles was envisaged. In its review of regulations for automated vehicle technologies (191-page / 81.2MB PDF), published in February, it said there was a need for flexible regulation.
The door to testing is not completely shut but speedy law reforms are needed
The government must accelerate efforts to update primary legislation to make it easier for such testing to take place. It wants the UK to become a centre of excellence for autonomous vehicles testing and future commercialisation of the technology, but legal barriers could encourage businesses to develop their propositions elsewhere.
However, law reforms in this area will be difficult to expedite, and so a more creative approach to support the emerging autonomous vehicles industry in testing may be required in the short term.
There are potential channels that could be explored by those wishing to test intelligent mobility technology on pavements, cycle paths or other non-road public areas in consultation with the Department for Transport.
One option would be for testers to request that certain pavements or other public areas be re-designated as roads. If re-designation happened then testers would be able to overcome the restrictions on non-road testing under the RTA and Highways Act of 1835. They would, however, need to ensure that their vehicle complies with other legal requirements for road testing, including on tax, insurance, licensing and vehicle construction standards.
Alternatively, there may be scope to utilise experimental orders as a short term way of allowing this technology to be tested in public places. However, how such an order would interact with the RTA and the Highways Act remains unclear. This ultimately leaves would-be testers in a position where they cannot be sure if their tests will be legal or not.
A further option open to the government is to create new exceptions that allow certain vehicles to be driven on the pavement. Existing exceptions permit the likes of mobility scooters, council lawnmowers and electrically assisted pedal cycles to be driven on non-road public areas.
It is to be hoped that the work of the Centre for Connected and Autonomous Vehicles (C-CAV), the joint policy unit set up by the Department for Transport and Department for Business, Innovation and Skills can help promote solutions that enable the UK to support businesses investing in autonomous vehicles and intelligent mobility.
As it stands, the government is making all of the right noises to attract organisations from around the globe to come to the UK to test their autonomous and intelligent mobility technology. However, in order to provide these organisations with comfort that they can carry out their tests lawfully, further strides need to be made to put in place an up to date and appropriate regulatory framework. We believe that this is one of the objectives which will be very high up on C-CAV's agenda.
Ben Gardner is an expert in autonomous vehicles technology and regulation at Pinsent Masons, the law firm behind Out-Law.com.
Diversity and Inclusion - best laid plans
Fintech meet up