Developments in the UK's approach to the regulation of driverless vehicles

Specifically, this update follows on from our previous alert regarding the commencement of the Law Commission's review in November 2018.  That review aims to ensure the safe implementation of CAVs, including for public transport networks and on-demand passenger services.  

(1) New UK Government consultation on Automated Lane Keeping Systems 

On 18 August 2020, the UK Centre for Connected & Autonomous Vehicles launched a new consultation and a "call for evidence" from the automotive industry regarding the safe use of Automated Lane Keeping Systems ("ALKS").  

What are ALKS?

Many of today's cars incorporate 'Advanced Driver-Assistance Systems' ("ADAS"), such as adaptive cruise control, lane changing assistance and advanced emergency braking.  These are individual automated features which assist a driver with the driving task.  With ADAS, the driver remains: (i) in control of the vehicle; and (ii) responsible for the driving task at all times.

ALKS takes things a step further on the autonomy scale.  ALKS are automated systems which – when activated – control the lateral (i.e. steering) and longitudinal (i.e. acceleration, braking and gear selection) movements of the vehicle for extended periods of time, without the need for driver input.  At present, these systems are designed to keep a vehicle in its lane on motorways up to a speed of 60 km/h (or 37 mph) (for example, during heavy and slow moving traffic).  Significantly, this technology allows a driver to disengage from the dynamic driving task for the first time. That driving task is delegated to the vehicle itself, although the driver must be ready and able to resume control when prompted to do so.

As has been reported in the press, this technology challenges how society understands and accepts the way in which driving is undertaken – especially as it may mean, at least in principle, that a driver can take their eyes of the road and engage in unrelated activities such as using a vehicle's on-board infotainment system, watching a film, checking e-mails or using their mobile phone during a journey.

The international legal framework

On 24 June 2020, the United Nations Economic Commission for Europe ("UNECE") World Forum for Harmonisation of Vehicle Regulations [1]  adopted a proposal for a new regulation concerning the approval of vehicles with ALKS  (the "UNECE ALKS Regulation").  Under the UNECE ALKS Regulation, it is proposed that the use of ALKS [2] is subject to certain conditions, including that (among other things):

- The driver is in the driving seat (with a seatbelt fastened) and is confirmed as being available.  Specifically, the ALKS is required to have a 'driver availability recognition system', to detect that the driver is present and available to take over the driving task when appropriate;

- There is no failure affecting the safe operation or functionality of the ALKS.  In that respect, the vehicle should receive a positive confirmation of 'system self-check' (i.e. a confirmation that the sensing systems are operating correctly);

- The vehicle is on roads where pedestrians and cyclists are prohibited and which, by design, have a physical separation that divides traffic moving in opposite directions; and
- A data storage system for automated driving is in operation.  This will, among other things, enable authorities to inspect the vehicle's data in the event of an accident or road traffic offence.
Where any of these conditions are not met, the UNECE ALS Regulation proposes that ALKS should apply a 'transition demand', where the driver is incentivised to take back control of the vehicle and the driving task.  

The consultation

The consultation is seeking views and evidence by 26 October 2020 on: (i) the roles and responsibilities of the driver and the manufacturers or providers of ALKS; and (ii) proposed changes to current automotive laws (including under the Motorway Traffic Regulations, the Road Traffic Act and the Highway Code), so that such laws meet the requirements of the UNECE ALKS Regulation.  After receiving responses, the Government intends to consider the details of any proposed legislative changes (most likely, in 2021).  

Some of the key questions being considered include the following:

• Should a vehicle with ALKS be legally defined as an "automated vehicle" under the Automated and Electric Vehicles Act 2018 ("AEVA 2018")?  This is likely to be the case where the ALKS can drive a vehicle independently (i.e. not being controlled by a human driver) and does not need to be monitored by an individual.[3]  

If so, the provider of the ALKS technology – as opposed to the driver, user or owner of the vehicle – is likely to be responsible for the vehicle's safety when the ALKS is engaged.  Notably, the consultation document makes the point that if the ALKS amounts to an automated vehicle under the AEVA 2018, "it is important that the driver is not held unfairly responsible for any action taken by that system which causes the vehicle to drive unlawfully and/or results in damages[4]" .  This is subject to a driver retaining responsibility for responding to a transition demand (e.g. where the ALKS has caused a vehicle to come to an unexplainable stop in a motorway lane).

• How should a driver be educated and informed to understand the abilities and limitations of the ALKS to ensure that it is used safely?  It is proposed that manufacturers and providers of ALKS may have a role in the training of users.

• What, if any, other activities should a driver be allowed to perform while the ALKS is activated?

• Should a vehicle with ALKS be allowed to be engaged up to speeds of 70 mph on motorways, provided that the system has the capability to do so safely?

The issues and questions posed by the consultation reinforce the point that manufacturers of automated systems and technology (including developers and providers of the associated software) are likely to have increased: (a) responsibilities for the safety of the relevant systems or their component parts (including regulatory and compliance responsibility); and (b) risk of liability in the event of any damage or accident caused by a fault or defect with the system.  

(2) The second consultation paper within the Law Commission's review

In November 2018, the Law Commission carried out its first three month consultation on safety assurance and legal liability for CAVs.  The findings were published in June 2019.  Whilst a range of topics were considered, the key takeaway was that a large majority of participants supported the proposal for a national safety assurance scheme to verify automated driving systems. For more information on the first consultation, please see our previous article here.

The second consultation paper, which ran between October 2019 and February 2020, focused on the interaction between highly automated road passenger services, known as "HARPS", and public transport.  The term HARPS refers to a new category of public or mass passenger transport services, which provide passenger journeys using an automated vehicle without a human driver or a 'user-in-charge'.    

Key findings 

An analysis of the responses and interim results was published in May 2020.  The major findings include the following:

• New operator licensing scheme: There was considerable support for HARPS to be governed by a single national licencing system, to prevent fragmentation of licencing authorities (as is currently the case with taxi and private hire licencing).  In light of such positive responses, the Law Commission will explore ways to introduce local powers to enforce and manage HARPS in each area.  Participants also endorsed the proposal that HARPS operators should be responsible for insuring, maintaining and supervising HARPS vehicles, including reporting collisions and other incidents. 

• Regulation for privately-owned passenger autonomous vehicles: The consultation considered the regulation of CAVs owned for private, rather than commercial use.  Participants agreed that legal responsibility for matters such as insurance, roadworthiness, installing software updates, protecting vehicles from cyber-attacks and removing obstructing vehicles should rest with the registered keeper of the vehicle.  It was noted that some of the requirements placed on private owners were potentially onerous, and would likely require the owner to rely on third-party services to ensure that they were correctly implemented. 

• The Law Commission made a distinction between the regulation of short-term rentals and long-term leasing arrangements equivalent to private ownership.  The proposal was met with criticism by participants due to the complexity created by the different forms of ownership and uncertainties as to boundaries. The Law Commission hopes to streamline this proposal in its final consultation.  

• Accessibility obligations: The consultation considered ways in which HARPS regulation could incorporate accessibility outcomes for elderly individuals and those with disabilities.  Two proposals were supported by participants: firstly, that section 29 of the Equality Act 2010 (which prohibits discrimination by service providers) should be extended to HARPS operators; and secondly, that national minimum accessibility standards should be developed for both vehicle design and end-to-end user experience.

What's next?

The responses and findings from the consultation so far, whilst indicative, are not yet final recommendations and proposals.  Although the original timelines have been delayed by the COVD-19 pandemic, the Law Commission aims to publish its third and final consultation, which will consolidate responses from the first two consultations, by the end of 2020.  Final recommendations from the review, including any proposals for legislative change are expected in 2021. 

We will be monitoring any further developments on the above processes closely, and will provide further significant updates as they occur.

[1] This international body is involved in the development of international regulations and standards to support the safe introduction of increasing automation and allow such technology to come to market.

[2] https://undocs.org/ECE/TRANS/WP.29/2020/81 .  While the UNECE ALKS Regulation has been approved, it is expected to come into force in 2021.

[3] Section 8, AEVA 2018.

[4] Paragraph 4.1, 'Safe Use of Automated Lane Keeping System (ALKS) Call for Evidence', Centre for Connected & Autonomous Vehicles.