The Law Commission of England & Wales and the Scottish Law Commission have released their joint report on automated vehicles following a detailed review of Britain’s driving laws which ran from November 2018 and involved three distinct consultation papers.
Running to 315 pages, this final report to Parliament makes multiple references to DAC Beachcroft’s consultation responses and includes direct quotes from our submissions as the basis for a number of specific recommendations. Our responses to each of the consultation papers can be accessed here (First Response, Second Response, Third Response). The joint report can be accessed here and an abridged 36 page summary is also available and can be accessed here.
These are the key recommendations and proposals:
Changes to the law
- A new Automated Vehicles Act to codify the rules around self-driving vehicles, drawing a clear distinction from driver assistance systems.
- The need for a new vocabulary of defined terms with specific meanings, to ensure consistency of description and regulation. This is part of bringing the application of existing legislation (such as the Road Traffic Act 1988) up to date. The distinction between ADS (automated driving system) and AV (automated vehicle) is a good example.
- New legal actors including:
- the ‘User-In-Charge’ (UIC), who remains responsible for non-dynamic driving tasks when a vehicle with manual controls is operating in AV mode;
- the ‘Automated Driving System Entity’ (ADSE), which may be a vehicle manufacturer or software developer and is responsible for the safety of the ADS; and
- the ‘licensed service operator’, who is responsible for monitoring the safe operation of a ‘Non-User-In-Charge’ (NUIC) vehicle without manual controls.
- A revision to the law against tampering with a vehicle to define a vehicle’s ‘mechanisms’ to include sensors and any software embedded within physical parts of vehicle, as well as an aggravated offence of interfering with an AV where it causes death or serious injury.
- A review of the law relating to taking a vehicle without consent, to include NUIC vehicles that do not have a driver’s seat.
- A review of the Automated and Electric Vehicles Act 2018 (AEVA) to replace the requirement for the Secretary of State for Transport to keep a list of AVs, with the Law Commission’s recommended two-stage approval and authorisation process for AVs (see below). In the context of AEVA, the report also advocates a general review of product liability laws and their interaction with automated systems, not limited to AVs.
Safety assurance – pre and post placement
- A two-stage approval and authorisation process for AVs which requires each individual feature of an ADS to be scrutinised by a regulator prior to deployment.
- A new scheme to provide regulatory oversight of AVs throughout the lifetime of the vehicle, to ensure ongoing safety and compliance with road rules.
Responsibilities of drivers/Users-in-Charge
- Although the ability of the UIC to engage in non-driving activities is a fundamental benefit of AVs, there are restrictions that need to be applied while the technology remains in its infancy. The Law Commission therefore advocates that users of vehicles with manual controls should not be permitted to sleep whilst the vehicle is operating in AV mode, nor should they be allowed to use hand-held devices. Furthermore, infotainment screens should cut out immediately if a transition demand is made.
- Whilst ten seconds is suggested as an appropriate timescale, the Law Commission does not make any specific recommendation regarding the handover period from human to machine when the ADS issues a transition demand, and it is for the ADSE to satisfy the regulator when presenting an ADS for approval and authorisation. The handover period should include haptic as well as audio and visual warnings.
- At the end of the transition period, the UIC becomes the driver for the purpose of criminal sanctions, but will have a defence if the ADS does something illegal (such as driving the wrong way along a one way road) and, in the immediate aftermath of a handover, the driver is unable to prevent a collision.
- The UIC remains legally responsible for non-dynamic driving tasks at all times, to include a duty to report accidents under s170 RTA, pay tolls, etc.
- A new offence is recommended of knowingly riding as a passenger in an AV with manual controls, without a qualified UIC in the driver’s seat.
Responsibilities of an Automated Driving System Entity
- The duties of an ADSE should include provision of ongoing safety updates to users.
- ADSEs should be legally required to provide data to:
- insurers to enable them to handle claims; and
- law enforcement agencies to enable them to investigate road traffic infringements.
- It should be a criminal offence to mis-market driver assistance systems in terms that may confuse consumers and undermine safety. A duty of candour should be imposed on ADSEs. There should be new offences to hold manufacturers criminally culpable for misrepresentation or non-disclosure of safety-critical information, the duty extending to senior managers. Subject to this duty of candour, it is not proposed that aggravated driving offences such as causing death by dangerous driving will extend to ADSEs, though a range of sanctions should be at the regulator’s disposal.
Data
- Data should be published comparing the safety of conventional vehicles with AVs, to demonstrate the safety of AVs relative to human drivers. This is important to obtain consumer confidence in AVs.
- Data from ADSs should be stored for 3 years and 3 months, to preserve evidence in circumstances where third party claims are notified immediately prior to expiry of the primary limitation period.
Next steps
This report is more than three years in the making and is a milestone on the journey to make AVs a safe, integral part of Britain’s motor fleet. There are many other recommendations contained within the report, and we will address these in greater detail in future publications.
The report has been laid before the relevant Parliaments; the recommendations do not extend to Northern Ireland, which is subject to the Protocol on Ireland/Northern Ireland and will require a different system of regulation. The UK, Scottish and Welsh governments will decide whether to accept the recommendations and introduce legislation to bring them into effect.
It will be interesting to see how quickly and in what manner these matters are taken forward by the respective governments and indeed whether a unified or consistent approach is adopted.
DAC Beachcroft’s automated vehicles group will continue to monitor developments closely, advise our clients on opportunities and threats and actively participate in policy formation.
