Release of the first Joint Preliminary Consultation paper on Automated Vehicles

On 8 November 2018, the Law Commission and the Scottish Law Commission (together, the Commission) released a joint preliminary consultation paper on automated vehicles (the Paper). The Paper follows a request from the Centre for Connected and Autonomous Vehicles to review the UK’s regulatory framework to enable the safe and effective deployment of automated vehicles on the UK’s roads.

This is the first paper released as part of the three-year project exploring the regulation of automated vehicles, which will run until March 2021. This Paper only concerns the use of automated vehicles for private passenger transport (i.e. not of regulated public transport or logistics).

The main areas covered by the Paper are as follows:

Human Factors and the “user-in-charge”

The Paper addresses the legal obligations currently imposed on human drivers and proposes how such obligations may change in an automated driving landscape. It considers the circumstances in which automated vehicles may be required to have a qualified human user, and it is suggested that a new category of user is created named a “user-in-charge”. This user would not be the active driver of the vehicle, but would be a human that is qualified and fit to drive and would be capable of taking control of the vehicle if the automated driving system (ADS) fails.

Regulation

In order to address the issue of regulation of the standard of automated vehicles before their placement on UK roads, the Paper proposes a new safety assurance scheme for automated driving, enforced by a new or existing Government agency. Under this new scheme, automated driving systems entities (ADSE) that create or implement the underlying ADSs in vehicles would be identified and authorised by the scheme. ADSEs would then be required to demonstrate that safety risks had been identified and managed to a certain legal standard.

As the technology of automated driving will continue develop once the vehicles are on the roads, the Paper identifies the need for new regulation of automated vehicles following their introduction and implementation in the UK. These include new tests for roadworthiness, enhanced driver training and performance-based safety standards that ADSs will be required to meet.

Civil Liability

In relation to the potential liability that exists under civil law, the Paper considers the provisions of the Automated and Electric Vehicles Act 2018 (AEVA), which imposes a new form of liability for accidents on the insurers of automated vehicles. The Paper does not re-open the underlying principles of the legislation, but instead asks the question of whether further guidance or clarification of the provisions is required, particularly as regards three potentially ambiguous areas covered by AEVA:

• contributory negligence, primarily due to conflict with the Law Reform (Contributory Negligence) Act 1945;
• causation, in respect of uncertainty in the legislation and inherent uncertainty in leaving the consideration of causation to the courts; and
• data retention, in consideration of the storage of accident data for insurance purposes and the related technical challenges.

In addition, the Paper considers the potential for liability of the manufacturer of an ADS under the Consumer Protection Act 1987. While considered a relevant legislative regime for automated vehicles, the Commission’s view is that the liability of manufacturers will play a relatively limited role in compensating victims in comparison to the liability of insurers under AEVA.

Criminal Liability

The Paper identifies and considers four categories of criminal offences that would require adapting to the challenges of automated vehicles:

• offences incompatible with automated driving (i.e. where automated vehicles would require an express exemption under existing legislation);
• offences that arise directly out of the way a vehicle is driven (e.g. careless driving, speeding), which is considered by the Paper on the basis that these offences are caused by a human’s actions and there would be no liable human in an automated vehicle;
• responsibilities of the users-in-charge. In particular, the Paper considers whether the same criminal offences that are enforced against human drivers should also be enforced against users-in-charge; and
• obligations that pose challenges for automated vehicles, particularly duties such as stopping and providing details for accidents or compliance with directions of a police constable. It is considered that technical solutions will be required in order to address these challenges.

Interfering with automated vehicles

Due to concerns of an increase in crimes involving the interference with automated vehicles, the Paper explores the existing legislation in relation to interference with vehicles, roads and computer systems. The Paper identifies that, in general, most current offences that exist in Scotland and England & Wales would be readily applicable to automated vehicles. However, the Commission welcome responses as to whether new offences would be required that would be expressly directed towards the interference with automated vehicles.

Adapting road rules for artificial intelligence decision making

Due to the use of artificial intelligence in ADSs, the Paper addresses the difficulty of codifying road rules in such a way that an artificial intelligence system may comprehend them. The Commission additionally consider three issues of public concern as regards the use of AI in automated vehicles:

• ethics, and how automated vehicles should decide ethical issues;
• avoiding bias in the behaviour of ADSs, particularly considering whether decisions adversely affect a group of people on the basis of any protected characteristics and stating the importance of engineers having due regard to the elimination of any potential discrimination; and
• transparency, particularly as regards the publication of ethical policies of automated driving systems.

The Commission are inviting responses to the questions and issues identified in the Paper until 8 February 2019 when the consultation closes. These responses will then serve to inform the forthcoming stages of the three-year project.