Laying down the law

Law commissions advise that car manufacturers and software should be legally accountable for safety of automated vehicles on public roads

New legislation is needed to draw a clear distinction between genuine self-driving features and those that merely assist drivers, such as adaptive cruise control. This is a key recommendation in a joint report published by the Law Commission and Scottish Law Commission on legal reforms relating to the use of autonomous vehicles (AVs). The 292-page report builds upon feedback from hundreds of stakeholders, and the consultations received a total of 404 written responses.

The Law Commission is a statutory independent body with the aim of ensuring that the law is as fair, modern, simple and as cost-effective as possible. It conducts research and consultations in order to make systematic recommendations for consideration by Parliament. The commission’s work on autonomous vehicles began in 2018 when the Centre for Connected and Autonomous Vehicles (CCAV) asked the Law Commission of England and Wales and the Scottish Law Commission to undertake a far-reaching review to enable the safe and responsible introduction of automated vehicles on roads and public places.

Following three rounds of consultation, the Law Commission reports that consultees asked for, among other things, a clear distinction between driver support and self-driving to clarify “misleading marketing” that confuses “people into thinking they do not need to pay attention to the road when in fact they do”. The commission has recommended that human drivers should not be made to be legally accountable for road safety, with liability instead resting with the company providing the AV systems such as the car’s manufacturer or software companies. It recommends drawing a clear distinction between features which just assist drivers, such as adaptive cruise control, and those that are self-driving.

Under the Law Commissions’ proposals, when a car is authorised by a regulatory agency as having “self-driving features” and those features are in-use, the person in the driving seat would no longer be responsible for how the car drives. Instead, the company or body that obtained the authorisation (an Authorised Self-Driving Entity) would face regulatory sanctions if anything goes wrong. The Law Commissions also recommend new safeguards to stop driver assistance features from being marketed as self-driving. The commissions state this would help to minimise the risk of collisions caused by members of the public thinking that they do not need to pay attention to the road while a driver assistance feature is in operation.

Nicholas Paines QC, public law commissioner said: “We have an unprecedented opportunity to promote public acceptance of automated vehicles with our recommendations on safety assurance and clarify legal liability. We can also make sure accessibility, especially for older and disabled people, is prioritised from the outset.”

David Bartos, Scottish Law commissioner said: “How should the law deal with self-driving technologies? Our joint report with the Law Commission sets out new laws for allowing automated vehicles on our roads, ensuring safety and accountability while encouraging innovation and development.”

Many driver assistance features are currently available to help a human driver. The report anticipates that, in future, these features will develop to a point where an automated vehicle will be able to drive itself for at least part of a journey, without a human paying attention to the road. For example, a car may be able to drive itself on a motorway, or a shuttle bus may be able to navigate a particular route.

A new system of legal accountability

Once a vehicle is authorised by a regulatory agency as having self-driving features, and a self-driving feature is engaged, the Law Commissions recommend a new system of legal accountability. Under it: • The person in the driving seat would no longer be a driver but a “user-in-charge”. A user-in-charge cannot be prosecuted for offences which arise directly from the driving task. They would have immunity from a wide range of offences – from dangerous driving to exceeding the speed limit or running a red light. However, the user-in-charge would retain other driver duties, such as carrying insurance, checking loads or ensuring that children wear seat belts. • The Authorised Self-Driving Entity (or ASDE) that had the vehicle authorised would have responsibility for it: if the vehicle drives in a way which would be criminal or unsafe if performed by a human driver, an in-use regulator would work with the ASDE to ensure that the matter does not recur. Regulatory sanctions would also be available to the regulator. • Some vehicles may be authorised to drive themselves without anyone in the driver seat. Here any occupants of the vehicle would simply be passengers. Instead of having a user-in-charge, a licensed operator would be responsible for overseeing the journey. There would also be requirements for passenger services to be accessible, especially to older and disabled people.

The Law Commissions’ recommendations build on the reforms introduced by the Automated and Electric Vehicles Act 2018. The 2018 Act ensured that victims who suffer injury or damage from a vehicle that was driving itself will not need to prove that anyone was at fault. Instead, the insurer will compensate the victim directly.

Reactions

Responding to the report, transport minister Trudy Harrison said: “This government has been encouraging development and deployment of these technologies to understand their benefits. However, we must ensure we have the right regulations in place, based upon safety and accountability, in order to build public confidence. That’s why the department funded this independent report and I look forward to fully considering the recommendations and responding in due course.”

Edmund King OBE, president of the AA, welcomed the report. “While many technological elements of automation or automatic lane keeping systems will bring in safety benefits, we should not be encouraging drivers to take their hands off the wheel until these systems are regulated and fail-safe,” he said. “The Law Commission is right to distinguish between driver assistance features and self-driving, and to ensure driver assistance features aren’t marketed as self-driving.”

RAC head of roads policy Nicholas Lyes said: “While selfdriving cars offer the potential to make our roads safer and increase mobility for those who can’t currently drive, it’s vital motorists aren’t lulled into a false sense of security by the way some manufacturers describe their automated technology.”

Next steps

The report has been laid before Parliament and the Scottish Parliament. It will be for the UK, Scottish and Welsh Governments to decide whether to accept the Commissions’ recommendations and introduce legislation to bring them into effect.

www.lawcom.gov.uk/project/automated-vehicles/

Law Commission sets out legal framework for AVs

The Law Commission has striven to keep safety at the forefront of its proposals on automated vehicles, while also retaining the flexibility required to accommodate future development.

On 26 January 2022 the Law Commission published a joint report with the Scottish Law Commission with recommendations for legal reform. The commissions’ 75 recommendations cover initial approval and authorisation of self-driving vehicles, ongoing monitoring of their performance while they are on the road, misleading marketing, and both criminal and civil liability. They include: • Writing the test for self-driving into law, with a bright line distinguishing it from driver support features, a transparent process for setting a safety standard, and new offences to prevent misleading marketing. • A two-stage approval and authorisation process building on current international and domestic technical vehicle approval schemes and adding a new second stage to authorise vehicles for use as self-driving on GB roads. • A new in-use safety assurance scheme to provide regulatory oversight of automated vehicles throughout their lifetimes to ensure they continue to be safe and comply with road rules. • New legal roles for users, manufacturers and service operators, with removal of criminal responsibility for the person in the passenger seat. • Holding manufacturers and service operators criminally responsible for misrepresentation or non-disclosure of safetyrelevant information.

The case for legal clarity

Law Commission guidance on autonomous vehicles is timely says motor research body

The Law Commission report marks a necessary step on the journey to safe automated driving on UK roads, says the UK’s motor insurance sector’s research centre.

Matthew Avery, chief research strategy officer at Thatcham Research, said “The transition to the safe introduction of automation with self-driving capabilities is fraught with risk as we enter the early stages of adoption. The Law Commissions’ report is a significant step as it provides important legal recommendations and clarity for the safe deployment of vehicles with self-driving features onto the UK’s roads. In the next 12 months, we’re likely to see the first iterations of self-driving features on cars in the UK.

“It’s significant that the Law Commission report highlights the driver’s legal obligations and how they must understand that their vehicle is not yet fully self-driving. It has self-driving features that, in the near future, will be limited to motorway use at low speeds. The driver will need to be available to take back control at any time, won’t be permitted to sleep or use their mobile phones, the vehicle won’t be able to change lanes and if the driver does not take back control, when requested, it will stop in lane on the motorway. It is critical that early adopters understand these limitations and their legal obligations.

“To ensure clarity around system capabilities and the driver’s responsibilities there must be a clear separation between assisted driving, where the car supports the driver, and self-driving capability, where the car is responsible for the entire driving task. We applaud the recommendations that compel carmakers to use appropriate terminology when marketing these systems, to prevent motorists from becoming convinced that their car is fully self-driving, when it is not.”

Thatcham Research and UK government organisation Zenzic are working on a safety rating scheme for automated driving systems. The intention is that this will become the benchmark for a global independent rating scheme for automated driving systems, with a view to driving best practice and reassuring consumers that – when the technology is mature enough – it is safe to hand over control.