Sign up for the Freshfields TQ digest
Industrials and automotive
The road ahead: reflections on the Law Commissions’ latest proposals for regulating automated vehicles
In a joint report published on 26 January 2022, the Law Commission of England and Wales and the Scottish Law Commission have proposed introducing a new Automated Vehicles Act to regulate automated, i.e. self-driving, vehicles (AVs) on roads or other public places in Great Britain (GB).
The report anticipates that, in the future, Automated Driving Systems (ADS) will develop to a point where a vehicle will be able to drive itself without a human driver paying attention for at least part of a journey. As a result, the proposed Act would create a new and ambitious regulatory scheme that is radically different from the current system. The report’s 75 recommendations tackle a broad range of issues to bring about that change.
i. A new regulatory and liability framework
The proposed regulatory regime envisages three key legal actors:
1. the user-in-charge – the human in the driving seat;
2. the no user-in-charge (NUIC) operator – the organisation that oversees the vehicle when a NUIC feature is engaged; and
3. the authorised self-driving entity (ASDE) – the vehicle manufacturer or software developer that puts the vehicle forward for authorisation or a partnership between the two. This is the entity which must respond to regulatory action and oversee any recall activity.
Crucially, once a vehicle is authorised as having self-driving ADS features, and the ADS is engaged, the system of legal accountability will change under the proposals. In particular:
- The person in the driving seat will no longer be a driver but will become a ‘user-in-charge’. They will have immunity from a wide range of offences related to the way the vehicle drives, ranging from dangerous or careless driving, to exceeding the speed limit or running a red light. That recommendation marks a seismic change in approach and has unsurprisingly garnered significant press attention. The user-in-charge would, however, retain responsibility for maintaining insurance, as well as exchanging insurance details following an accident.
- If the ADS features are authorised for use without a user-in-charge, any occupants of the AV will simply be passengers. Responsibility for overseeing the journey will be undertaken by a licensed NUIC operator.
- If an ADS feature results in the vehicle driving in a manner that would be criminal if performed by a human driver, the ASDE would bear responsibility. Compensation for victims who suffer injury would be provided via the existing provisions of Part 1 of the Automated and Electric Vehicles Act 2018. Insurers are, and would remain, directly liable to the insured person, or any other injured person, without the need to prove fault regardless of whether the user-in-charge or automated driving system was in control of the AV.
ii. A new AV approval and authorisation scheme
The proposals recommend introducing a new two-stage approval and authorisation process before an AV with ADS features is permitted to enter use. The proposals suggest an approach which sensibly complements the existing approvals framework.
First, ASDEs would be given the choice of either obtaining: (1) international UNECE systems approval from any UNECE approval authority; or (2) a GB AV technical approval under a new British domestic scheme. Whatever the ASDE’s election, GB whole vehicle approval would then be required under the post-Brexit scheme overseen by the VCA replacing the EU whole vehicle approval scheme.
Second, an authorisation authority will also need to be satisfied that the vehicle “as a whole” is equipped with an ADS feature or features capable of meeting the threshold for being self-driving. The 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.
The report anticipates that, initially, an ASDE may wish to operate its own AVs. They have therefore designed a system where the ASDE and NUIC operator roles can be combined without undue bureaucratic duplication. It recommends that, where the ASDE and NUIC operator are the same entity, the entity may submit a single safety case to be assessed by the authorisation authority. It will also however be possible for the NUIC operator to be separate from the ASDE. If so, the ASDE will need to set out what is required for the safe operation of its vehicles, and the NUIC operator will need to show how it meets the operational requirements.
iii. Apportioning legal responsibility between the ASDE and the user-in-charge
The report is very clear that, when the ADS feature is engaged, the user-in-charge is to be granted immunity from “any criminal offence or civil penalty which arises out of dynamic driving” and, as such, responsibility for traffic infractions would fall squarely on the ASDE. A range of new mechanisms will need to be developed by those in industry operating ASDEs in order to address that new potential liability.
There are also likely to be challenges in determining which party bears responsibility when the ASDE encounters a situation which it cannot handle and control needs to be returned to the user-in-charge. The report’s solution is that a user-in-charge should be required to respond to a clear and timely signal to take over driving (a “transition demand”). At the end of the transition period, legal responsibility for driving will shift to the user-in-charge, even if they have not taken control of the AV. Offence immunity for the user-in-charge ceases at the end of the period. By way of example, the report envisages that, if an AV stops in a busy motorway lane as a result of a user-in-charge’s failure to response to a transition demand, the user-in-charge would be liable (including criminally). Scope for argument as to whether the transition demand was sufficiently clear, properly engaged, and responded to appropriately seems inevitable. Where civil liability results, we assume that insurers would carefully consider whether secondary claims could be pursued against AV manufacturers.
Another key issue discussed in the report is whether a user should have any responsibility to passively ‘monitor’ their surroundings in the absence of a “transition demand”. The report advises not, suggesting that it would expect too much from the user-in-charge and violate the general principle that users-in-charge should not need to pay attention when the ADS is engaged. The report also warns that drivers tend to panic when confronted with emergency situations and that the ADS may well be better placed than the user to remedy the situation. Interestingly, that approach differs from other jurisdictions. For instance, in Germany, the user-in-charge must remain “ready to perceive” (“wahrnehmungsbereit”) obvious circumstances indicating that the conditions for the ADS’s use are not met.
The report’s approach places a significant burden on the ADS (and by extension ASDEs), which may not be able to recognise every possible road sign or react to novel situations. Conscious of this, the report recognises that this “does not mean that the ADS feature must be able to deal with absolutely everything” because some events are “so unlikely that they do not need to be considered”. That does however raise challenging questions as to where responsibility would lie if (and presumably when) such extraordinary events do occur. Again, where civil liability results we imagine that impacted insurers would consider secondary claims against AV manufactures.
iv. A new penalties regime
The report also suggests a range of penalties to ensure compliance of the various actors under the new regime throughout the AV lifecycle.
The report suggests a range of offences targeted at preventing misleading advertising in relation to AVs. These include enacting new criminal offences for:
- describing unauthorised vehicles using certain terms such as “self-driving” and “automated vehicle”; and
- engaging in a commercial practice which is likely to confuse drivers into thinking that an unauthorised driving automation technology does not need to be monitored when on a public road or place.
The report proposes that a person would have a defence if the commercial practice that gave rise to the offence originated from outside GB and it had taken all reasonable precautions and exercised due diligence to prevent GB drivers from being misled. Enforcement is anticipated to involve criminal prosecutions as well as via civil enforcement orders and voluntary undertakings.
Breach of licensing conditions
The report proposes that new regulatory offences be enacted so as to allow an “in-use regulator” to investigate any traffic infractions/complaints which amount to a breach of licensing conditions, and apply sanctions where appropriate to ensure compliance.
The in-use regulator will have the power to apply for a search warrant to obtain information as well as request for further information from ASDEs and NUIC operators. Importantly, the report suggests that penalties “will not be automatic”, i.e. per vehicle fines will not apply in the same way that they do presently with human drivers. Instead, it is proposed that the regulator will decide on the appropriate sanction in light of discussions with the appropriate actor. Where a single organisation acts as both an ASDE and a NUIC operator, the report envisages that the regulator can impose sanctions on the combined organisation, without having to establish in which role it was responsible for the fault.
Possible sanctions suggested include warnings, civil penalties, redress orders, compliance orders and (in the most serious cases) suspension or withdrawal of authorisation, with a concurrent appeals process.
The duty of candour
The report aims to promote a no-blame safety culture that learns from mistakes. Central to that objective is the establishment of the “duty of candour”, which is intended to ensure the honesty and transparency of the ASDE and NUIC operator in sharing information with regulators.
Where that does not occur, the report envisages a new criminal offence being enacted, that of failing to provide safety information or providing misleading information to a regulator when putting forward a vehicle for authorisation or responding to a request from a regulator.
Where the ASDE/NUIC is guilty of the non-disclosure or misrepresentation offences above, the person who signed the relevant safety case or response to the request for information (“the nominated person”) would also commit the offence. Senior managers would also be guilty of the above offence if it took place with their consent or connivance. The report suggests that the ASDE/NUIC operator/nominated person would have a defence if shown that it took reasonable precautions and exercised all due diligence to prevent the wrongdoing. The report does not make any specific recommendations about the maximum penalties, but draws parallels with offences under the Human Medicines Regulations 2012, which carry a penalty of an unlimited fine and/or up to two years’ imprisonment.
The report also considers aggravating factors. Where an actor commits any of the offences above, it recommends that the offence should be aggravated where the misrepresentation or non-disclosure is:
- related to an increased risk of a type of adverse incident;
- an adverse incident of that type occurred; and
- the adverse incident caused a death or serious injury.
The report does not make any specific recommendations as to maximum penalties for the aggravated offences, observing instead that the decision is “best made by the UK Government”. That said, the authors note that they viewed the aggravated offence as the equivalent to causing death by dangerous driving, which carries a maximum prison term of 14 years. They also note, however, that legislation currently before Parliament would increase the maximum penalty for causing death by dangerous driving from 14 years to life.
The report’s approach to penalties is as characteristically innovative as its other proposals. The suggestion that the penalties regime move away from the blunt fixed penalties per infringement approach used for human infractions to a more flexible system of co-operative dialogue between the relevant actor and regulator is clearly to be welcomed. That said, the development of concepts such as the duty of candour will inevitably pose significant challenges for ASDEs, NUICs and their personnel. Given the serious criminal penalties envisaged, rigorous internal compliance regimes will need to be established and strictly adhered to so as to ensure compliance. Determining the precise edges of the duty of candour is likely to be no easy task, and the relevant regulator may face challenges properly assessing a mass of disclosures if industry responds by cautiously over-reporting.
v. Setting the safety standard expected of an AV
The report also considers a core issue concerning AVs: how much safer than a user-driven vehicle must an AV be to be considered ‘safe’? While there is broad agreement that AVs should be “safer than human drivers in general”, the report notes that opinions remain divided on the exact safety standard that should be demanded. For example, should the standard be that of a “competent and careful human driver”, or that of “the average driver” which would include the full range of drivers currently on the road? Consultation responses universally indicated that a positive risk balance was the minimum acceptable standard and the report is clear that comparisons must be made by reference to British, rather than worldwide, standards on the basis that deaths in some US states and EU nations were observed to be over four times higher than on British roads.
One possibility floated in the report is that legislation could require a percentage improvement on human drivers’ safety standards. The report observes that that there “is an attraction to the idea that AVs should be required to drive more safely over time: for example the standard could require a percentage improvement every five years over the next two decades.” Such an approach would also mirror, for instance, the approach taken in relation to legislation driving incremental reductions in vehicle emissions over time. However, care will clearly need to be taken to ensure that any safety standard is genuinely achievable so as to not stifle AV development and safety gains given that the lack of agreement as to the ‘correct’ percentage is notable. The report refers to consultation responses which variously suggested a very wide range of percentage improvements ranging from 5% to 75%.
Ultimately, the report recommends that the new Act should require the Secretary of State for Transport to publish a safety standard against which the safety of AVs can be measured. The report states that ‘how safe an AV should be’ is a political question that will depend on the level of risk acceptable to the public. That is probably about as much as could realistically be expected given the real uncertainties as to the efficacy of future ADS in AVs.
The road ahead
Overall, the report should be lauded for offering a set of radical, nuanced and comprehensive legislative proposals. It will no doubt play a central role in the debate on how to regulate ADS in AVs going forward.
If it is minded to act on the Law Commissions’ review, the Government will need to liaise with industry in order to address a number of difficult issues identified by the report, as it moves forward towards legislation. An interim response is due from Government within six months, with a final response due within a year. Legislative clarity can only assist in driving innovation, improving safety and facilitating the introduction and uptake of ADS in AVs on the UK’s roads. That is particularly key given, under the proposals, industry would face additional responsibilities.
As the report makes clear, there are difficult decisions to be made on the road ahead. As ever, the devil will be in the detail of the legislation. Legislators, and ultimately regulators, will need to liaise with manufacturers, developers and insurers – and even, in relation to liability issues in particular, lawyers - to understand the state of development and limitations of self-driving technologies, so as to craft regulation that best apportions risk and liability.