2021 was the last of a three-year project by the Law Commissions of England & Wales and Scotland to review the legal framework for automated vehicles. The joint report has now been published. It makes recommendations for legal change that would represent a fundamental rethink of the regulation for the assessment and maintenance of vehicles, of the laws around misinformation contained in vehicle advertising, and of criminal liability.
The headline recommendation is the introduction of a new 'no-blame' safety culture aimed to ensure vehicle manufacturers or operators learn from mistakes as opposed to penalising private vehicle owners through criminal sanctions. This new blameless culture will apply to illegal or dangerous driving.
In practical terms, the human passenger and/or owner of the vehicle will become the user-in-charge and will only be responsible for 'secondary offences', such as ensuring the vehicle is insured and that all occupants are wearing seatbelts. Should the car be caught speeding or otherwise driving dangerously the owner will not be responsible.
Backing up this no-blame culture is a new duty of candour, which will apply to manufacturers and operators. It will require disclosure of all relevant information about the vehicle to regulators for pre- and post-deployment testing, and by request when things go wrong. Misrepresentation or non-disclosure could carry a criminal sanction for those involved.
The aim for this duty is twofold. First, to allow regulators to effectively test all vehicles. Second, for investigators to assess what went wrong and whether there is a production, process or regulatory change that is required to ensure the safety of vehicle occupants and other road users in future.
Other highlights of the report include:
- Defining 'self-driving' vehicles in law.
- A requirement for the Secretary of State for Transport to publish a safety standard against which self-driving cars will be measured.
- A new two-pronged regulatory scheme, assessing vehicles before deployment to ensure compliance with standards first (via an Authorised Self-Driving Entity, or ASDE) and then later ensuring safety standards continue to be met after deployment (via an In-Use Safety Assurance regulator).
- A new legal definition of 'user-in-charge' and the rules around liability for that user to be split between 'dynamic' and 'non-dynamic' offences where the automated driving systems are engaged.
- All vehicles that are authorised to drive without a user-in-charge will require constant oversight duties by the operator through an operation centre or a similar setup to respond to any alerts the vehicle sends.
- For passenger services, such as taxis and buses, more evidence is required for analysis of the safety and accessibility of these services where there is no human driver. To enable evidence gathering, a new interim passenger permit procedure is recommended before a full permanent regulatory scheme can be established.
- The introduction of criminal sanctions for the public misuse of certain autonomous driving terms and for misinformation in advertisements or other commercial practice.
The Association of Consumer Support Organisations (ACSO) has written previously on the impact of automated vehicles upon our roads. Although it is sensible to evolve the technology as manufacturers and regulators learn from accidents or unintentional criminality, this should not come at the expense of the safety of other road users.
The Law Commission's recommendations constitute a substantial legal reformation that needs additional forethought, consultation and debate. Should the government agree to follow the recommendations and implement laws to enact these changes, it seems unlikely that our legal infrastructure will be ready for the next level of driving automation in the short term.
ACSO will continue to monitor any legal and regulatory changes related to autonomous vehicles and review the consequential impact on road safety.
Author: Daniel Bates, trainee solicitor at Minster Law and ACSO secondee.