In light of the increasing prevalence of automated “self-driving” vehicles, the Law Commissions of England and Wales and Scotland published a joint report on automated vehicles at the beginning of last year, which is currently before the UK Parliament for consideration. The report recommends the introduction of a new Automated Vehicles Act specifically to regulate automated vehicles and recalibrate legal accountability for their use.
The project began in 2018 when the Centre for Connected and Autonomous Vehicles asked the Law Commission of England and Wales and the Scottish Law Commission to undertake a comprehensive review of driving legislation to enable the safe and responsible introduction of automated vehicles in Great Britain. This initiative coincided with implementation of the UK Government’s Future of Transport Programme and Regulatory Review, which aims to stimulate innovation in the transport sector and address areas of transport regulation that are outdated and not designed with new technologies (such as vehicle automation) in mind.
As part of the UK Chancellor’s 2022 Autumn Statement, the Government Chief Scientific Adviser and National Technology Adviser, Sir Patrick Vallance, was tasked with leading the ‘Pro-innovation Regulation of Technologies Review’ project. On 15 March 2023, the first report of this project was published, titled ‘Pro-innovation Regulation of Technologies Review: Digital Technologies’ (the “Vallance Report”), and the UK Government released its response shortly after. The Vallance Report recommended that the Government bring forward legislation – the Future of Transport Bill – to unlock innovation across automated transport applications. In its response to the Vallance Report, the Government committed to bringing forward this legislation when parliamentary time allows, and confirmed that it will publish a response to the Future of Transport Regulatory Review consultation, including the legislative review undertaken by the Law Commissions, in the coming weeks.
In the table below, we set forth the key concepts proposed in the Automated Vehicles Joint Report. It remains to be seen how the Government intends to address gaps and uncertainty in existing law as regards automated transport applications, and the extent to which it plans to implement the recommendations outlined in the Joint Report.
|The Report recommends that an authorisation scheme be introduced to regulate AVs.||The Report defines automated vehicle (“AV”) as a vehicle designed to be capable of “driving itself” and to operate in a mode in which it is not being controlled and does not need to be monitored by an individual, for at least part of a journey.|
In particular, the Report distinguishes between vehicles which have “self-driving” automated driving systems (“ADS”) which are in scope of the new regime – and those that merely have “driver support features” (e.g., functions in the car which help the driver maintain a safe distance from vehicles ahead) – which are out of scope. If a feature can control a vehicle so as to make it drive safely and legally, even if an individual is not monitoring the driving environment or the vehicle (or the way it drives), that feature will likely be considered a self-driving ADS for the purposes of the new regime.
What might this mean in practice? The authorisation regime for AVs as proposed in the Report will apply in respect of vehicles equipped with technologies that allow the vehicle to drive itself without being controlled or monitored by an individual.
|The Report contemplates that there will be different legal actors responsible for an AV, potentially including software developers.||The relevant legal actors as are follows: |
— User-in-charge (UIC): the UIC will be the human in the driving seat. The UIC must, among other things, be qualified and fit to drive, be responsible for the condition of the vehicle and report accidents. The UIC will have immunity from any criminal offence or civil penalty which arises out of dynamic driving (e.g., dangerous and careless driving/ exceeding speed limits).
— No user-in-charge (NUIC) operators: the NUIC operator will be the organisation licensed to oversee vehicles without a UIC. The NUIC operator must satisfy certain specified conditions to obtain a NUIC license. The license conditions of NUIC operators may include carrying insurance, maintaining the vehicle, and reporting accidents. The NUIC operator will be responsible for cybersecurity in relation to the AV, including the installation of safety-critical updates.
— Authorised self-driving entity (ASDE): the ASDE will be the vehicle manufacturer or software developer that puts the AV forward for authorisation as having self-driving features and takes responsibility for the performance of the AV. The Report provides for some flexibility over the identity of the ASDE – it may be a vehicle manufacturer, a software developer, or a partnership between the two. However, the ASDE must show that it was closely involved in assessing the safety of the vehicle. An ASDE is needed for all on-road AVs. In particular, the ASDE will be required to undertake a range of ongoing safety and disclosure duties as a condition for authorisation of an AV.
What might this mean in practice? It will be important to observe how any new legislation delineates responsibility between NUICs and ASDEs. Given that the proposals in the Report allow car manufacturers and software developers flexibility in who requests ASDE status, software developers and car manufacturers might consider including in partnership agreements with one another provisions allocating the relevant responsibilities/risks and costs related to the role of the ASDE.
|The Report proposes the introduction of new criminal offences with respect to AVs.||Marketing offences: the Report proposes two new criminal offences in relation to marketing: |
— to engage in a commercial practice which uses certain terms (“self-drive”, “self-driving”, “drive itself”, “driverless” and “automated vehicle”) in connection with driving automation technology that is (i) not authorised under the regulator’s recommended AV authorisation scheme; and (ii) designed for use on roads in public places;
— to engage in a commercial practice which is likely to confuse drivers into thinking that an unauthorised vehicle does not need to be monitored when on a public road or place.
Duty of candour: the Report proposes that a duty of candour should arise where an ASDE puts forward an AV for authorisation, or a NUIC operator applies for a licence, or either organisation responds to requests from the regulator. In such circumstances, it will be a criminal offence to fail to provide relevant information, or to provide information to the regulator that is false or misleading (in particular where that information is relevant to the evaluation of the safety of the AV). There would, however, be a defence of “due diligence” if the ASDE/NUIC operator could prove that it took reasonable precautions and exercised all due diligence to prevent any wrongdoing.
Liability of senior management: although the primary offences would apply to the ASDE or NUIC operator, the Report contemplates that individuals who play a significant role in decision-making with respect to how the activities of that NUIC or ASDE are to be managed or organised could face prosecution for breaches that take place with their “consent or connivance” in certain circumstances (although mere neglect would not be sufficient).
Aggravated offences: the Report also recommends that, where a corporation commits one of the offences outlined above, that offence will be deemed to be aggravated where the misrepresentation or non-disclosure related to an increased risk of a type of adverse incident, and an adverse incident of that type occurred (leading to death or serious injury).
What might this mean in practice? The above reforms are, collectively, aimed at ensuring companies adopt a safety-first culture, operating on the basis of openness and transparency in the manufacturing, licensing and marketing of their products. Software developers and car manufacturers will need to consider whether it is appropriate for them to be an ASDE (solely or together) or NUIC in relation to any AV, as well as the scope and structure of their marketing campaigns (and internal policies) regarding the safety of the design and manufacture of their AV-related products.