Aviation Autonomy – a New Legal Order?

Responses are now due on 28 June to the Law Commission’s consultation on Aviation Autonomy. The Law Commission published the consultation in late February in response to a request from the UK Civil Aviation Authority and the Department for Transport to review the regulatory framework governing autonomy in aviation. The review was partly funded by UK Research and Innovation through the Future Flight Challenge. The current stage focusses on two use cases: (i) non-passenger carrying drones, and (ii) VTOLs and other advanced air mobility applications. A future phase of the project will address air traffic management and air navigation services.

As a result, the present consultation is heavily directed towards uncrewed aviation applications and there is considerable focus on the role of the pilot - and the concept of the pilot in command - when there is no pilot on board. However it is important to keep in mind that the Law Commission’s work is not limited to uncrewed applications.

Some may consider that another document of well over 200 pages is one too many to address when the industry may be suffering from consultation fatigue. That is certainly not the view of Chris Daniels, Chief Commercial Officer at Flarebright, a drone software company and board director of the trade association ARPAS-UK. We spoke recently to Chris and to Gareth Beverley, Chief Executive Officer of Consortiq about the consultation.

In Chris’ roles he sees “a lot of tactics, but not much strategy” by way of initiatives affecting the UAS sector. What he likes about the Law Commission consultation is that it is “implicitly looking at everything as a whole”. The advanced air mobility sector is now likely to interact much more closely with humans, animals and other infrastructure to far greater degree than we have been used to with conventional aviation. The advantage of the holistic view taken by the Law Commission – a first, in Chris’ experience – is that it poses questions which are important to the overall relationship between society and advanced aviation and looks beyond the minutiae of for example, technical standards for light drones. That leads to the question of whether, hitherto, anyone has been looking at the vision for advanced aviation as a whole?

The consultation doesn’t grapple so directly with the ‘vision’ issue but Chris believes it is likely to flush out some more of the societal issues as well as helping ensure that the detailed technical work already underway by the CAA, DfT and others is complete. Moreover, it is a document for everyone - industry and public alike. As Chris put it: “the first half of it really says what the law is and the second half asked what should the law be. If anybody is interested in either of those, they should be looking at it and responding to it.”

Gareth also takes the view that one of the key issues that needs to be resolved to make full use of advanced aviation technology is to understand where the law lies on overflight – a key question about the impact on others, aside from the safety issues. The consultation paper contains an excellent summary of landowners’ rights in the airspace overhead and whether overflight amounts to a trespass. We would note that it is well known that overflight at a ‘reasonable height’ does not, of itself, amount to a trespass but there is a dearth of caselaw on what is meant by ‘reasonable’. The consultation does not suggest a solution other than to require that UAS comply with requirements of aviation legislation which, in principle, UK law already requires. Perhaps this is more of a policy question than for the Law Commission but one which, given the challenges posed by existing low level UAS operations and the processes for approval of some specific category operations, we anticipate will be ventilated in the courts if not resolved by the legislator.

Both Gareth and Chris noted that there is a high level of awareness of the consultation document and that it is a useful document in its own right. Chris does not describe himself as an aviation law expert but said how interesting it was to get a primer on the current state of legislation and we would agree that it provides a thorough analysis of the relevant legal principles.

Unsurprisingly, the consultation places considerable emphasis on the role of the pilot. Our own view is that pilot’s role is important, where one exists, but the real issue in the context of commercial operations is who is the operator, which is more likely to be a legal rather than a natural person. The concept is well established for both crewed and uncrewed operations and enables measures to be taken if there are shortcomings either at the organisational level or, where individuals have specific functions or are required to hold certain licences, at the individual level. Certainly there is work to be done by the regulator in terms of defining formal remote pilot’s licence requirements where that is an appropriate qualification, and this opens the question of the correct approach to supervisory pilots or pilots managing multiple vehicles, which the Commission discusses at some length.

In that context, though, there may be more fundamental questions: is the bigger question whether there should be a pilot in charge or an air traffic management system, or whether there should be one air traffic management system or several? Both our contributors raised the question of whether traditional regulatory systems – or regulators - are the right ones for this branch of aviation or whether there is a need to focus less on the fact that the equipment flies to determine the regulator and be open to the idea that perhaps even a new regulator is needed for such novel technology.

Both Gareth and Chris also anticipate that many operators will be wondering about the liability issues applicable to an entirely autonomous aircraft. The Commission address a number of these points. In simple terms, we have been saying for some time that there is little or no need to alter the typical liability regime for uncrewed or autonomous operations as they affect passengers, cargo interests, or third parties suffering surface damage as a result of an accident. There are well established regimes for, effectively, strict or presumed liability in commercial aviation that channel liability through the operator. These are not ‘pilot dependent’ and do not typically require the proof of fault. Similarly, product suppliers will face a strict product liability exposure under a regime which has been in force in the UK for many years, and is already under review to address technological change in a manner that is not limited to the aerospace sector.

Typically, we anticipate that these issues will require suppliers and operators of advanced aviation equipment to reconsider the risk allocation and liability assumption within the supply chain, because, for instance, the explainability challenges of AI technology may make it harder to prove fault by a supplier. Operators will also take the view that with presumed, if not strict, liability to passengers, it is the supplier of a highly automated aircraft that should carry that risk – but this, ultimately, is a commercial issue for resolution in negotiation within the context of a largely well-established legal environment than one to be rewritten for aviation autonomy.

In any event, these risks must all be insured under existing law, and Chris made the point that the insurance sector is likely to be highly influential in enabling the development of these services: “the driving aspect is who will insure this, rather than legislation”.

Understandably, the remote pilot issue again features extensively in the Law Commission’s treatment of criminal law and sanctions as a means of enforcing regulation and safety standards. This recognises how conventional aviation relies on a range of sanctions and the use of the ‘just culture’ philosophy to achieve compliance with aviation regulation – without directly saying that this should be read across to autonomous aviation. The consultation addresses certain issues – some of which will require resolution – around the existing offences that are deemed to have been committed by the pilot in command, whether a remote pilot’s criminal responsibility should remain the same throughout hybrid operations (i.e. part autonomous and part truly remotely piloted) and whether there should be an acclimatisation period after transition, and responsibility for multiple simultaneous operations. The Law Commission’s provisional view is that it is for the regulator to determine whether an individual can safely manage, or remotely pilot, multiple aircraft, and therefore the criminal sanctions should remain the same regardless of how many remote aircraft are being operated. In general terms the Law Commission presently believes that the current Air Navigation Order regime should continue to place criminal liability on an operator for breach of responsibilities formerly placed on the pilot. Certified operations which do use a licensed remote pilot would be treated in the same way as a pilot in command in a conventional operation.

For these reasons our contributors believe this is a valuable document, but Gareth was particularly emphatic that the value lies in something coming from it. The Law Commission proposes to issue a further consultation on ATM/ANS (which may be expected to address those services as they apply to conventional aviation) towards the end of 2024 with a view to final proposals to government in Q4 2025. That, as Gareth said, is a long time in the fast-paced world of UAS technology development.

Nevertheless, we share the view that those engaged in aviation autonomy, and those who will be affected by it, will do well to take the opportunity to submit their views. The list of questions is long but respondents do not have to answer them all. And there is no word-count on a reply. The debate on the issues will of course continue and this is a key opportunity to identify what issues matter and where that debate should be focussed.

We are very grateful to Gareth Beverley and Chris Daniels for their contribution to this article. The views expressed in this article are entirely the personal views of the authors and the contributors.


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