The new licensing scheme was mooted in a consultation paper recently published by the bodies, which have been commissioned by a UK government agency to assess what legal reforms are necessary to regulate for the use of autonomous vehicles.
According to the paper, the Law Commissions envisage there being a three-fold legal classification of automated driving, with the first class being assisted driving, where the driver retains all the responsibilities of the driver, and the second class being highly automated driving with an overall user-in-charge. The third class is highly automated driving where the occupants of the vehicle may be mere passengers.
The Law Commissions said that the current regulatory framework in relation to highly automated road passenger services (HARPS) is "highly fragmented", as there are "separate systems for taxis, private hire vehicles and public service vehicles" where obligations on operators differ depending on "vehicle size, fare structure and how the vehicle is booked". The Commission said they do not believe the existing framework is suitable for regulating HARPS.
"We do not think that it will be possible to shoehorn HARPS into the current regulatory structure," the Commission said. "There would be too much scope for 'regulatory shopping', where operators choose which regulations to follow by adjusting the number of seats or fare structures. Instead we provisionally propose a single licensing system for all HARPS operators."
The new licensing regime would, among other things, contain obligations in relation to software updates, cybersecurity and remote control centres, it said.
"It is another positive sign for the UK's position as a global leader in automated vehicle technologies that this consultation has been published," said Ben Gardner, who specialises in the regulation of autonomous vehicles at Pinsent Masons, the law firm behind Out-Law. "For those looking to enter the HARPS market, the consultation provides a chance to influence what future regulations might look like."
"However, it should be noted that once an appropriate regulatory framework has been developed, passing and enacting the relevant legislation can be a lengthy process which does not translate well with rapidly moving technologies. There is a risk that during this process the technology moves on, rendering the legislation out of date, or that other countries steal a march on the UK by providing greater legal certainty to potential HARPS operators," he said.
Both the Law Commission of England and Wales and the Scottish Law Commission are engaged in a three-year long review into the laws and regulations needed to support the introduction of autonomous vehicles in the UK. Last November, the Commissions opened their first consultation as part of that review and posed questions on a wide-range of legal issues.
One of the ideas explored in the initial consultation paper was the concept of a new 'digital highway code'. In response, the Society of Motor Manufacturers and Traders (SMMT) warned that incumbents in the market may be disadvantaged in comparison to new entrants or latecomers by the likely "incremental" nature of the process for creating the code. The trade body said incumbents "have invested huge amounts over the years to develop a refined machine understanding and interpretation of road rules".
The UK has already legislated in the area of civil liability for when things go wrong with the way autonomous vehicles operate with the Automated and Electric Vehicle Act. In addition, the government last month announced that it is "developing an assurance system" for self-driving vehicles. The 'CAV PASS' scheme is designed to "ensure self-driving vehicles are safe and secure by design and minimise any defects ahead of their testing, sale and wider deployment on UK roads", it said at the time.
In their latest paper the Commissions said regulation of HARPS is necessary to ensure the safety of automated vehicles and deliver a transport system that "would sustain economic growth by providing accessible, reliable and affordable transport to take people where they want to go … without compromising safety, air quality or the earth’s climate". It would also help address potential congestion on Britain's roads, they said.
"The law should identify the person or organisation responsible for updating, insuring and maintaining the vehicles and for guarding against cyber-attacks," the Commissions said. "Regulation should then make sure that these responsibilities are carried out effectively. We also identified a need to keep traffic flowing. This suggests that HARPS vehicles will need to be supervised so that (for example) they do not stop for too long in inappropriate places and that broken-down vehicles are removed."
The Commissions' consultation is open until 16 January 2020.
The government's efforts on supporting the development and commercialisation of autonomous vehicles coincide with a broader regulatory review on the future of mobility.