Law Commissions’ analysis of responses to automated vehicle consultation points to the way forward

The Government could begin work to establish a safety assurance scheme, building on its existing work in the Code of Practice, to allow for the commercial deployment of highly automated driving systems, the Law Commission of England and Wales and the Scottish Law Commission have announced today.

The safety assurance scheme is required to prohibit unauthorised systems and to support the implementation of the Automated and Electric Vehicles Act 2018. Stakeholders strongly support its creation before automated vehicles reach the market.

This is a central finding from the Commissions’ analysis of 178 responses to the consultation on new rules for UK’s self-driving future, titled Automated Vehicles: A joint preliminary consultation paper. Whilst these responses will ultimately inform final recommendations that will be published in 2021, they also suggest some immediate steps that the Government might take to support the legal reforms necessary for the same deployment of automated vehicles in the UK. These steps include:

• For the Government to consider how to establish a safety assurance scheme, with a particular focus on:
  • The institutional arrangements for such a scheme. There was strong support for this role to be fulfilled by an existing agency such as the DVSA or VCA.
  • The issues a safety assurance scheme would need to cover. These go beyond the initial safety of the vehicle itself and could include driver training, software updates, continuing roadworthiness and the management of data.
  • Methods for testing the roadworthiness of Automated Vehicles. Most consultees advocate a mixture of methods, such as audited self-certification, simulation, track tests and road tests.
• For the Government to consider establishing a forum for collaboration on the application of road rules to self-driving vehicles. This would:
  • Lead to dialogue between developers and regulators.
  • Allow developers to raise concerns and allow regulators to set out broad principles for developers to follow.
  • Help solve issues such as interpreting indeterminate terms in legislation and in the Highway Code
  • Identify possible additions to the Highway Code to resolve conflicts between two automated vehicles

This analysis of responses is part of a three-year review by the Law Commissions to prepare driving laws for self-driving vehicles. On 8 November 2018, we published our first consultation paper, which looked at issues of safety assurance and civil and criminal liability. We have been analysing the responses since the consultation period closed on 18 February 2019.

In total, 178 responses were received – amounting to over 2600 pages – from a wide range of consultees. This will inform our work and views, and we are grateful to all those who responded.

Law Commissioner Nicholas Paines QC said:

“We are very grateful for the thought-provoking and detailed responses we received from a wide cross-section of society.”

Caroline S Drummond, Commissioner at the Scottish Law Commission said:

“Consultees have been clear that reforms must put safety first and work for everyone, especially those with disabilities, whilst also protecting active travel. We are taking all these views on board and would like to thank everyone who responded to our consultation.”

Future of Mobility Minister Michael Ellis said:

“The UK is a global leader in the development of self-driving vehicle technology, helping transform our society for the better, while keeping safety at the heart of our approach.

“The Law Commission’s work, developed in consultation with a broad range of stakeholders, will help our collaborative efforts to establish a regulatory environment encouraging the safe development and use of self-driving vehicles.”

Keith Richards, Chair of DPTAC (the Disabled Persons Transport Advisory Committee), said:

“It is crucial that a regulatory regime must be fit for the future, to accommodate rapidly developing technology. But it must also actively create an environment that promotes inclusion rather than exclusion and avoids discriminating against many disabled people who perhaps have most to gain from automated vehicles.

“This is a comprehensive and very welcome review and analysis that recognises the crucial importance of future forms of personal mobility to disabled people.”

The consultation responses

Consultees responded to nine sections of the consultation paper, giving feedback on our proposals and answers to the questions we asked – as outlined below. A full summary of the responses can be found here.

Whilst we have highlighted the responses to the sections on the Safety assurance scheme and Adapting road rules as areas that might inform the work that Government could undertake now, all the responses will inform the final recommendations that we produce in 2021.

The key issues that arose from the consultation were:

1. Safety assurance scheme. There was strong support for establishing a safety assurance scheme to complement the current system of international type approval. This would apply to automated driving systems which are installed as modifications or manufactured in small series. The safety assurance scheme will also need to deal with driver training, software updates, continuing roadworthiness and the management of data.
2. Automated driving system entity (ADSE). We suggested that all automated driving systems (ADSs) put forward for authorisation would need to be backed by an entity that vouches for the safety of the ADS. If a faulty ADS causes an accident, the ADSE could be subject to a range of regulatory sanctions. Most respondents agreed with this. We will go into more detail on the precise role of the ADSE in the third consultation paper.
3. User-in-charge. We proposed a new role of “user-in-charge”, who would not have the same responsibilities as a driver while the automated driving system (ADS) is engaged but would take over from an SAE Level 4 system in planned circumstances or after the vehicle has come to a stop. Most consultees agreed with this. Our current thinking is that remote operators will not be referred to as users-in-charge but will be subject to a separate regulatory regime. We will elaborate on this in our second consultation paper.
4. Conditional automation (SAE Level 3). Issues around conditional automated proved controversial. Around half thought there should be no relaxation of the laws against distracted driving in vehicles with SAE Level 3 systems. There were calls for a clear dividing line between driver assistance and automated driving.
5. Road accident investigation. There was general consensus that the focus of accident investigation needs to shift from allocating blame to learning for the future to improve safety. In the short term, there is a need to provide the police with specialist help, both to investigate individual accidents and to analyse patterns of cases to identify root causes.
6. Criminal liability. We proposed that a user-in-charge would not be liable for breaches of driving rules “committed” while the ADS is engaged. Instead, if the problem appears to lie with the ADS, the police should refer the matter to a regulatory authority, who could apply a range of regulatory sanctions to the ADSE. There was widespread agreement with this approach. There was also support for a review of the law on corporate offences where wrongs by the developer of an automated driving system resulted in death or serious injury.
7. Automated and Electric Vehicles Act 2018. This Act requires insurers to pay compensation to victims where an automated vehicle causes damage. We asked whether it was necessary to clarify the provisions in the Act on contributory negligence, causation and data retention. Reforming the provisions on contributory negligence and causation is not a priority at present. However, clarity is needed on what data need be retained, by who and for how long.
8. Product liability. The consultation showed a need to review the way product liability law applies to “pure” software, sold separately from any physical product. This is relevant to “over the air” software updates which add or modify driving automation features. Such a review should be done generally, not simply for automated vehicles.
9. Adapting road rules. Developers and regulators need to collaborate on adapting road rules so that they can be applied by automated vehicles. We encourage government to consider the feasibility of establishing a forum for such collaboration. Areas where work could be usefully undertaken include guidance on interpreting indeterminate terms in legislation and in the Highway Code and identifying possible additions to the Highway Code to assist in the more efficient and predictable behaviour by automated vehicles.
10. Overarching themes: the importance of active travel and accessibility. Many respondents emphasised the need to encourage active travel, such as walking and cycling. There was concern that automated vehicles should not make streets less accessible to non-motorised users. There was also concern that automated vehicles should improve the lives of people with disabilities, rather than introducing new threats into the environment.