Law Commissions recommend further legislation to enable the safe use of automated vehicles

On 26 January, the Law Commission of England & Wales and the Scottish Law Commission published the final report in their joint, three-year investigation into law reform and automated driving.

They set out the case for a new Automated Vehicles Act and detail the areas it should cover. We have grouped their principal recommendations for regulating the safe deployment of self-driving or automated vehicles (AV) on British roads into the following themes.

Ensuring clarity about automated driving and assisted driving

The final report recommends:

"a high test for a vehicle to be authorised as having self-driving features: it must be safe even if a human user is not monitoring the driving environment, the vehicle or the way it drives. A user may be required to respond to a clear and timely signal to take over driving (a "transition demand"), but otherwise must not be relied on to respond to events or circumstances."

This approach would treat what was previously categorised at "conditionally automated" driving (Level 3 according to the Society of Automotive Engineers' international standard) as assisted driving, even if the technology offers a very high degree of assistance, it is not "automated driving" and the individual remains a "driver".

Conversely, the person in the driving seat of a highly automated vehicle (Levels 4 or 5) will be known as a "user-in-charge" and is not a "driver" while the vehicle is driving itself. A user-in-charge is not responsible for the dynamic driving task but must nonetheless be qualified and fit to drive because they will be required to take over following a transition demand from the automated vehicle.

A "user-in-charge" would become responsible for driving at the end of the transition period whether or not they have taken control. If the user-in-charge fails to take over the driving task, the recommendation is that the vehicle must complete a risk mitigation manoeuvre and come to a controlled stop in lane with hazard lights flashing.

Establishing new schemes for regulating vehicle safety

The final report recommends that section 1 of the Automated & Electric Vehicles Act 2018 (AEVA), concerning the listing of vehicles which the Secretary of State for Transport has classified as being automated, should be replaced with a new authorisation scheme with several elements.

  • Type approval: An agency – currently the Vehicle Certification Agency (VCA) – would grant vehicle type approval allowing the vehicle manufacturer (VM) to produce and sell models that conform to the approved specification.
  • Authorising self-driving: A new authorisation authority, likely to be the VCA, would determine whether features of a type-approved vehicle can be legally categorised as self-driving and, if so, whether a self-driving feature must be used with (i) a user-in-charge, or (ii) no user in charge but supervised remotely by a licensed operator. The agency would also specify the Operational Design Domain (ODD) within which each self-driving feature could lawfully be used, e.g., motorway driving only. The authorisation of a self-driving feature, which is independent of prior type approval, means that the AV may be deployed, within the permitted ODDs, to drive itself.
  • An "in-use" regulator: This body – likely to be the Driver and Vehicle Standards Agency (DVSA) – would be responsible for market surveillance, evaluating the safety of AVs as against published safety standards, and investigating traffic violations that would have comprised criminal offences if committed by a (human) driver. It would have powers to administer a range of regulatory sanctions to the Authorised Self-Driving Entity (ASDE) legally responsible for the AV and to address any improvements required in the technology directly with the ASDE.

Combatting misleading marketing

To target misleading marketing, the final report recommends the creation of a new criminal offence of engaging in a commercial practice that involves the use of protected terms such as "self-driving" or otherwise "likely to confuse drivers into thinking that an unauthorised vehicle does not need to be monitored".

Recognising the global reach of automated driving, the new offence would subject to a limited due diligence defence where the material targeted consumers outside Britain and the business had taken reasonable precautions to prevent British drivers being misled, e.g. by clarifying that the marketing material related to specific jurisdictions only.

Mandating the sharing of collision data

The final report qualifies its conclusions on collision data by stating that further work is required. It nevertheless makes a number of important recommendations and acknowledges that a legal basis for sharing data will "allay fears" that customers might be forced to take out insurance with a company tied to a VM.

  • Introducing a new legal duty to disclose AV accident data: This would be as part of the AV authorisation process with recipients of the data including insurers, the authorisation authority, the in-use regulator, and any road collision investigation branch. AVs cannot be authorised as self-driving unless "[they] can record location data for detected collision events and ADS activation / deactivation" and "[are] supported by a suitable ASDE which has demonstrated its ability to comply with relevant laws (including laws on data protection...)". The final report recognises that the disclosure of AV accident data to insurers is the legal quid pro quo for motor insurers meeting claims in the first instance under AEVA's strict liability but then benefitting from the statutory right of recovery provided by AEVA against any other liable party (such as the VM).
  • Encouraging insurers and manufacturers to agree an industry-level protocol on data disclosure, in default of which the in-use regulator should have legal powers to issue a code of practice. The final report acknowledges "some underlying tensions between insurers and manufacturers" on this subject.
  • To require vehicle systems to comply with data protection law: This would place responsibility for compliance with the GDPR and the Data Protection Act 2018 on VMs, which is particularly important given that geo-location data is to be included within the proposed dataset.
  • To retain AV accident for 39 months: This would run from the date the data is recorded (i.e. the accident date) and represents the usual limitation period of three years plus an additional three months for late notification. "We do not think that this would be unduly onerous. Although AVs have the potential to generate huge quantities of data, the data required for the [Data Storage Systems for Automated Driving] DSSAD is limited." Although these recommendations are welcome, they refer only to "detectible" collisions and do not seem to address near misses or minor collisions (for example, in which the airbag is not deployed). Further work appears necessary here.

Civil liability

The report considers that the imposition of strict liability on motor insurers under AEVA, where an accident is caused by an automated vehicle driving itself, is "good enough for now". It indicates that most respondents agreed that the provisions in AEVA on causation and contributory negligence do not need to be amended at present but should be kept under review: "Issues of causation and contributory negligence often defy easy answers... We do not see legislative intervention as a priority at this stage... We hope that the UK Government will act quickly to review the legislation if disputes under the Act are causing delays for claimants or preventing insurers from pricing policies."

Uninsured AVs

The report acknowledges a gap in respect of uninsured AVs and considers it would be "unfair" to treat those injured by an uninsured AV differently from those injured by an uninsured conventional driver.

Unsurprisingly, there was "near unanimous agreement" on this proposition, and the report recommends that government takes forward to work with the Motor Insurers' Bureau on necessary arrangements (and funding).

Product liability

There are no specific recommendations about insurers' secondary or follow-on recovery claims against other liable parties such VMs or software companies.

These claims are akin to claims arising out of defective products under the Consumer Protection Act 1987 (CPA) and would be made against those responsible for placing AVs into circulation. However, certain limitations inherent in the CPA may complicate its use here: (i) CPA applies only to consumer claims (rather than businesses), (ii) claims are subject to a 10-year post-launch limitation period, (iii) claims are subject to a "state of the art" defence and (iv) liability for damage to the product itself (i.e. AV), is excluded.

Additional difficulties may arise given that AVs may change over time due to software updates, whereas the CPA is generally aimed at physical consumer products that are unchanged. Insurers will need to know about updates and when they are installed, but the mechanism for this is unclear. Will DVSA (or DVLA) be informed? Would an insured be under a duty of fair presentation to make appropriate disclosures at inception, renewal, or when updates are installed? Will the insured even know about automatic updates?

The report acknowledges that a general review of product liability law is "desirable", not least because the CPA is 35 years old and connected products (such as AVs) receiving software updates could not have been in contemplation in 1987. It also suggests:

"a general review of the law of software liability would appear to be a suitable project for one or both Law Commissions."

Criminal liability

Where an AV system is engaged and driving itself, the recommendation is that a user-in-charge will no longer be responsible for offences associated with the dynamic driving task, e.g. dangerous or careless driving. This is subject to the proviso that the user has not taken positive steps to override or alter the system or otherwise interfered with its functionality (for example, by installing unauthorised software updates).

A user-in-charge could nevertheless be subject to two new offences:

  1. Using an AV in a dangerous state, such that it involves a danger of injury to any person, which would be obvious to a competent and careful user-in-charge;
  2. Failing to respond to a transition demand where they could reasonably be expected to do so, in which case their immunity from dynamic driving offences also ceases.

Additionally, the final report recommends the introduction of a new defence where a user-in-charge has completed a handover from the vehicle but finds themselves committing an offence, initiated by the ADS. The defence should be that the standard of their driving did not fall below that of a reasonably competent driver.

Next steps later this year?

The core proposal is that these recommendations are taken forward via a new Automated Vehicles Act. Doing so is a matter for government and legislation to give effect to the recommendations will be complex and take time to develop. It is difficult to predict when we might see and be able to engage with any detailed proposals, although there could be material progress during the year.

Indicators of that include a Downing St press release in December that looked forward to activity in 2022 aimed at "Enhancing Britain's potential as a world leader in the Future of Transport, including autonomous maritime vessels, self-driving cars and drones and modernising outdated vehicle standards." A little more cautiously, perhaps, the Transport Minister said this when the final report was published: "We must ensure we have the right regulations in place, based upon safety and accountability, in order to build public confidence ... I look forward to fully considering the recommendations and responding in due course."

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