Driverless cars: The latest on introducing vehicles in the UK, the legal landscape including proposed new offences and other key considerations
Last year the Government published its vision for connected and automated mobility, stating that its aim was for the UK to be a global lead in autonomous vehicle (AV) technologies by 2025.
In my first article on driverless cars, I explored the current position with driverless technology and discussed further considerations needed before adopting AVs into society.
This update will discuss where we are now from a regulatory perspective and assess whether this goes far enough to provide clarity over safety, liability, and policy.
The law – where are we now?
Policymakers have been busy behind the scenes. To date, three consultations have been published discussing various aspects of AVs and seeking comment from market leaders and industry professionals on their proposals.
The Automated and Electronic Vehicles Act 2018 was published to regulate AVs on roads and other public places, and The Highway Code was updated to include a section dedicated to self-driving cars.
More recently the Law Commission for England and Wales, together with the Scottish Law Commission, published their joint report outlining recommendations to government for a new regulatory framework. The report is summarised below.
Summarising the Report, legislation, and The Highway Code:
Introducing new ‘actors’
The report introduces new definitions and ‘actors’. These are imperative in understanding the policy proposals.
Firstly, automated vehicles are defined as vehicles that can drive themselves without being controlled or monitored, at least for part of the journey.
User-in-charge and new proposed offences
Secondly the Report introduces the ‘user-in-charge' (UIC). This refers to the human in charge of the AV. While there was talk around AVs widening opportunities for individuals who weren’t otherwise able to drive, the recommendations make clear that, to be a UIC, an individual will need to be qualified and fit to drive as they will need to take over the driving system if the AV requests so. The UIC won't be required to monitor the driving environment.
All current driving related offences, such as driving whilst under the influence of drugs or alcohol, or driving without a licence are still proposed to apply to a UIC. Further new offences of allowing someone to be in charge of an AV that is otherwise unfit, being carried in an AV without a UIC and allowing an AV to be engaged without anyone in it at all, are recommended to be introduced.
Thirdly, the report outlines AVs authorised to operate with no user-in-charge (NUIC). As suggested, this references vehicles that don't need a human to be in charge but will have an operator responsible for its oversight. Licensed NUIC operators should be an organisation and not an individual and will need to meet rigorous competence and safety requirements.
Authorised self-driving entities
Finally, the report introduces authorised self-driving entities and defines them as vehicle manufacturers or software developers who put AVs forward for authorisation as having self-driving features. They are the first point of contact if things go wrong, should be closely involved in inspecting AV safety and have sufficient funds to respond to regulatory action/organise a recall.
New era of liability considerations
In the legal landscape, the arrival of AVs has ushered in a new era of liability considerations. Recent discussions and reports offer crucial insights into the impending changes regarding AV accidents and the associated parties responsible. Although government deliberations are ongoing, these documents establish a solid starting point for reviewing the legal implications of AVs within the industry.
The Automated and Electronic Vehicles Act 2018 introduces an alternative approach to accident liability.
Under Section 1(1), the Act mandates that AVs must carry insurance, making insurers directly liable for personal injuries, fatalities, and property damage.
However, a pivotal distinction arises in Section 2: the insurer must pay compensation for any damage caused by a vehicle while it's driving itself, but importantly the vehicle must have been driving itself at the time.
UIC’s can't be held liable for criminal offences arising from activities that took place while the vehicle was in charge. Their liability being when they assume control. The report recommends that government put in place measures to provide compensation in respect of uninsured AVs to mirror liability as under section 2 of the Act.
In an attempt to prevent arguments about whether the AV or the UIC were ‘driving’, the vehicle and the person must be insured under the same policy of insurance. The policy is proposed to include liability to the insured person themselves, with some exceptions. Insurers aren’t liable to a UIC if the accident was wholly due to their negligence. Liability can also be excluded if software updates aren’t installed.
These developments lay the foundation for a legal landscape adapting to the complex and evolving world of autonomous vehicles.
What about the grey areas, like if an offence is still caused after a UIC takes control?
Proposals helpfully clarify this point. If the AV makes a mistake and the UIC takes over, but an offence/accident can't be avoided and a collision is still caused, UICs will have a specific defence to ‘an offence committed following takeover from an ADS as a result of the actions of that system’. The defence will be made out if ‘the driving didn’t fall below the standard reasonably expected of a competent and careful driver in the circumstances.’
A UIC who fails to respond to a transition in demand will acquire the legal responsibilities of a driver at the end of the transition period.
No real change is anticipated. Section 3(1) of the Act outlines that where an accident is to any extent the fault of the injured party, normal contributory negligence principles are to apply with compensation being reduced accordingly.
Wider changes are expected in this area. Once the insurer has settled a claim with the injured party, the insurer can go on to claim damages from any other party liable for the accident if it was as a result of a fault in the vehicle or automated driving system.
Insurers will rely heavily on vehicle-generated data to resolve claims. On this topic the report outlines recommendations around data collection proposing that the date, time and location of each instance where the self-driving feature is activated or deactivated, a transition-in-demand is issued by the AV or a collision is detected will all be collected.
Retention is proposed as being 39 months from the date that the data is recorded, and where a request for the data is made within that period, until the data has been given to the insurer.
Uncertainty remains over how current legislation applies to software and updates, with policymakers intending to review product liability law ‘as a whole rather than only in respect of AV’s’.
Currently, there's no available data or analysis regarding the potential impact on insurance pricing. Both the report and the Act imply that both the AV and the UIC will require insurance coverage. However, there's a need for clarity on whether this will result in increased premiums, separate premiums, or no change at all.
Throughout the consultations, concerns have been raised about the accuracy and effectiveness of AV safety features and the potential presence of discrimination or bias within these systems. Specifically, questions pertain to whether pedestrian sensors can consistently identify individuals of all ages, genders, disabilities, and ethnicities, and whether AV testing includes individuals within these protected characteristics. Establishing safeguards and scrutinising data to prevent unconscious bias formation remains an unresolved issue.
While AVs may have been hoped to be a means for individuals unable to drive for medical/disability reasons to gain independence, it appears that there are more complexities to consider. Requiring a qualified and fit UIC to operate AVs may not expand accessibility as initially expected, though this remains to be seen.
Finally, introducing AVs into the UK and other regions may pose challenges related to road infrastructure. If AVs are tested and modelled on foreign transportation networks, assurance is necessary that they can adapt to the distinct road conditions and technology present on UK roads. Additionally, addressing the coexistence of AVs with traditionally driver-controlled vehicles and the associated complexities is a critical consideration.
So, what does this mean? In short, although driverless technologies are anticipated to be ‘phased in’ and gradual, major change is afoot. The report puts forward a number of further considerations that have been driven by consultations and commentary from industry leaders, but they're not yet accepted.
The conclusion is that the Act is good enough for now, but that review will and should be necessary in light of practical experience and data. While there's more clarity around responsibility, human intervention expectations and liability, data collection proposals and insurance considerations, how lawyers will need to adapt to this in practice remains to be seen.
Find out more about Irwin Mitchell's expertise in helping people access specialist support and rehabilitation following a road collision at our dedicated road traffic accident claims section.