Hong Kong: Self-Driving Vehicles: On The Road To Becoming A Reality

A new legal framework to regulate the approval and use of self-driving vehicles within Great Britain has recently been introduced to Parliament. The Automated Vehicles Bill (the AV Bill) is intended to place Great Britain at the forefront of introducing self-driving vehicles to the road. The AV Bill implements the recommendations of a 4-year review undertaken jointly by the Law Commissions of England and Wales and the Scottish Law Commission (the Joint Review).

The AV Bill will apply to "vehicle systems that are capable of driving a vehicle, for some or all of a journey, with no human input." It therefore deals with some novel concepts, such as who is responsible for following the rules of the road when an automated vehicle (an AV) is being used and who should be responsible in the event an autonomous driving system makes an error.

Within this article we consider two different questions relating to the safety of AVs. First, how will regulatory authorities ensure an AV meets the relevant safety requirements before it is deployed and secondly, how will in-use safety be managed and regulated.

Approval of AVs

The Secretary of State will have the power to authorise a road vehicle for use as an AV if it meets the "self-driving" test (and any other initial authorisation requirements imposed). The self-driving test requires that the AV has a "feature" that enables it to drive autonomously, which means not being controlled by an individual but by equipment, and without the need for an individual to control or monitor the vehicle or its surroundings or to intervene in driving. Where the self-driving test is satisfied, a vehicle or vehicle type can be authorised as an AV.

The AV Bill stipulates that where an AV is in self-driving mode, it must have an authorised self-driving entity (ASDE) that is responsible for the way that the vehicle drives during that time. It was anticipated by the Joint Review that ASDEs would be the vehicle manufacturer, the developer of the automated driving software or a partnership between both of those entities. The ASDE will have a variety of obligations, such as ensuring that the AV meets the self-driving test on a continuing basis and ensuring that the AV can still operate legally in the event that traffic laws change.

Another authorisation requirement that the Secretary of State can impose relates to "transition demands." These are relevant to an AV that can drive itself for only part of a journey and therefore requires an individual to drive at other times. In such circumstances, the AV must issue a "transition demand" which is a time-bound request for the user-in-charge (UiC) to take control of the AV. The Secretary of State can impose requirements ensuring that the transition demand is safe and provides an appropriate timeframe within which the UiC should take control of the AV.

The AV Bill also make provisions for AVs that do not require a user-in-charge. These are AVs that can navigate an entire journey without a responsible human in the AV. There will be additional obligations place on the licensed operators of such vehicles, such as the requirement to ensure the AV is appropriately insured.

Safety of AV in-use

For AVs that require a human to be present at all times because they cannot complete a full journey in self-drive mode, the human will be the "driver" whilst the self-driving feature is not activated and the UiC when it is. The UiC will not be responsible for the way the AV drives when the self-driving feature is engaged but it must be qualified and fit to drive. The UiC also retains responsibility for obligations not associated with dynamically controlling the car, such as insuring it, and must also respond to transition demands.

In light of the above, the AV Bill effectively provides the UiC in an AV with immunity for any traffic offences committed by the AV whilst a self-driving feature is engaged. In these circumstances, the ASDE will be subject to a range of sanctions that will be introduced under the AV Bill. This reflects the fact that when an AV is in self-drive mode, humans should be allowed to place complete reliance on the self-driving software.

The safety regime introduced by the AV Bill therefore focuses on the companies responsible for how their AVs behave on the road when in self-driving mode and will look to protect individuals from being held accountable for traffic offences when they are not in control. It therefore creates a range of regulatory powers that can be exercised by regulators where ASDEs and other responsible entities fail to ensure an AV is compliant with relevant safety standards.

Summary

The government has stated that the AV Bill will "unlock a transport revolution by enabling the safe deployment of self-driving vehicles," and it undoubtedly sets out the framework within which AVs can be introduced to Great Britain's roads. However, the AV Bill will need to be closely analysed by the companies responsible for the manufacture and development of AVs and self-driving software to ensure they are equipped to meet the obligations placed upon them by it.

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.