The Law Commission of England and Wales and the Scottish Law Commission (the Law Commissions) have today [18 December 2020] announced landmark proposals that will seek to ensure the safety of self-driving vehicles via a comprehensive new legal framework.
Hailed as “leading the way on the regulation of this technology” by Transport Minister Rachel Maclean, the Commissions propose a new approach to assigning responsibility.
The proposals include:
- Implementing a new, start-to-finish self-driving vehicle safety assurance scheme that includes monitoring performance and software updates throughout the vehicle’s life
- Clearly defining the responsibility of drivers, users and fleet owners according to the capabilities of self-driving technologies, ensuring that self-driving vehicles are only ever used in the way they are intended
- Ensuring that manufacturers and technology developers recognise their role in guaranteeing the safety of the vehicle, while freeing the driver from responsibility when the self-driving mode is engaged. This would mean that the user-in-charge (a new concept to describe a former driver once the vehicle is driving itself) would not be criminally liable if an accident occurred whilst the self-driving mode is engaged.
The proposals also take lessons from the aviation sector, advocating a ‘no blame culture’, that will increase the quality of safety assurance over time while applying regulatory sanctions where appropriate.
This consultation builds on work commissioned by the UK Government in 2018, including two public consultations on the legal framework for self-driving vehicles. This proposed regulatory framework supports the safe deployment of self-driving vehicles whilst providing a clear direction to industry on the UK’s future regulatory landscape within the global stage.
Nicholas Paines QC, Public Law Commissioner said:
“As the UK prepares for the introduction of automated vehicles on our streets, it’s vital that the public have confidence in this technology.
“Our proposed legal framework will ensure that this technology can be safely deployed, whilst the flexibility built into the rules and regulations will allow us to keep up with advances in the technology.”
“We look forward to hearing views on how we can improve on our proposals.”
David Bartos, Scottish Law Commissioner said:
“Automated vehicles have the potential to transform how we travel in the United Kingdom however we need to have the right regulations in place to ensure we protect the public whilst allowing this technology to thrive.”
“The responses to our consultation, from a wide range of stakeholders will help us to create a legal framework that achieves these aims.”
Transport Minister Rachel Maclean said:
“Self-driving vehicles can contribute to improving and levelling up transport across the country, making every day journeys greener, safer, more flexible and more reliable.
“The UK is leading the way on the regulation of this technology, supporting innovation and putting safety at the heart of everything we do – ensuring self-driving vehicles are safe, secure and ultimately benefit all of society.”
Context of the consultation
The Law Commissions were asked by the UK Government’s Centre for Connected and Autonomous Vehicles to review the regulatory framework for the safe deployment of automated vehicles in the UK. This is the third consultation paper by the Law Commissions, and it aims to bring together proposals for the new framework. Many of these proposals build on existing regulation and proposals made in the previous consultation papers, whilst others are brand new to the sector.
Proposals in detail
The Law Commissions are consulting on proposals for a new regulatory framework for automated vehicles underpinned by robust incident investigation and enforced through a flexible range of regulatory powers and sanctions. The Commissions also ask questions on how regulation can support access to data required to make the safety assurance scheme work.
The key proposals being consulted on include:
Ensuring safety before deployment of AVs: before deployment, a two-track system has been proposed which would allow manufacturers to choose whether to get type approval for the vehicle under an international framework or a new national scheme. This would be followed by a categorisation decision to establish whether the vehicle is self-driving for GB purposes, and how it can lawfully be used on our roads.
The proposed new safety assurance scheme would include additional responsibilities and powers to ensure in-use safety. This will ensure that self-driving vehicles remain safe throughout their lifetime. The scheme will regulate to ensure safety in response to software updates, cybersecurity risks and even updates to maps.
User and fleet operator responsibilities
The Law Commissions have identified two new major regulatory categories of AVs and have proposed that different rules should apply for each.
Category-1 AVs might – for example – only drive themselves on the motorway and need a human to complete the rest of the trip. The human would be a driver while off the motorway but would be a user-in-charge while the vehicle was driving itself. Users-in-charge are not responsible for the driving but continue to have responsibilities such as insuring the vehicle, duties after an accident and ensuring children wear seat belts.
Category-2 AVs may be entirely remotely operated as part of a licensed fleet with a user classified as a passenger. The vehicle fleets will need to be looked after by a licensed operator who will also have specific responsibilities, for example supervising their fleets and providing prompt support if they get stuck as well as maintenance for example.
Categorising AVs according to their designed capabilities will help ensure that they are only ever used in the way intended, improving the safety of the technology further.
Shifting towards a no blame safety culture for AVs
Even the best designed AVs, which reduce the overall number of accidents, may still cause collisions. When a self-driving vehicle is in operation the user-in-charge will not be criminally responsible for any accidents that do occur, under the proposals. As there will therefore be no driver, society will not have someone to blame in the same way that occurs for conventional vehicles. However, the main aim of the Law Commissions is to move away from blame, and towards a learning culture, in which adverse events and accidents lead to the improvement of systems for the future.
However, we seek views on whether to review the possibility of new corporate offences where wrongs by a developer of an ADS resulted in death or serious injury.
The Law Commissions are consulting on these proposals until 18 March 2021. Once the consultation period is over, the Commissions will use the feedback provided to create final recommendations for the regulatory framework for the safe deployment of automated vehicles in England, Wales and Scotland. The final report is due in the final quarter of 2021.