Collaboration is key to safe regulation of autonomous vehicles

The results of the Law Commission of England and Wales and the Scottish Law Commissions' joint preliminary consultation into the safe regulation of autonomous vehicles (AVs), echo the importance of manufacturers working collaboratively with government and insurers on data management in the new driverless vehicles environment. 

Published within the last week, the Analysis of the written responses received from a wide range of consultees  - that included insurers, legal professionals, local government, and manufacturers – highlighted Kennedys’ thinking on several key issues.

With civil liability a key part of the consultation, we called for further guidance for the judiciary on the issue of causation in accidents involving AVs. Reassuringly, our concerns were cited within the Analysis:

“Judges are very likely, for the sake of expediency, to adopt a similar standard of driving for the artificial intelligence in an autonomous vehicle as of a driver in a manually-controlled vehicle. Doing so could risk miscarriages of justice / unfairness (and therefore satellite litigation).”

Our response also called for a review of the way in which product liability under the Consumer Protection Act 1987 applies to defective software installed into automated vehicles. The Analysis recognised that there is widespread concern about how this Act “applies to intangible software”, referencing our observation that:

"Questions arise as to whether the software technology supplied to an automated vehicle (a non-physical product) is a product in its own right or part of the vehicle product as a whole."

We also highlighted that further complexities arise from over-the-air software updates, which enable manufacturers and service providers to update the software technology in an automated vehicle remotely. With regard to responsibility for installing safety critical updates, our suggestions were featured:

“We suggest the legislation be amended to place the onus on the OEM or manufacturer to ensure, by design, that autonomous vehicles cannot start their journey until safety-critical software updates are uploaded - in much the same way that many vehicles will not allow the driver to set off if their seat belt has not been fastened. Alternatively, such updates need to confirm that software is already up to date. It makes no practical real-world sense to place this onus on the user-in-charge or driver or owner.”

With criminal liability also a focus of the consultation, a broad range of criminal offences were considered, including the need for reform of existing legislation and/or introduction of new measures. Our thinking around the adequacy or otherwise of existing criminal law to deter interference with AVs, was also recognised:

“Even where the behaviours are already criminal, there is an advantage in re-enacting the law to link these specifically to automated vehicles so that potential offenders are deterred from carrying out these behaviours relating to interference.

"Perhaps pedestrians who deliberately obstruct traffic could face criminal sanctions – and autonomous vehicles are well placed to record the actions of such pedestrians.”

Reassuringly, the consultation identified strong support for the establishment of a safety assurance scheme to include responsibility for driver training as well as continuing roadworthiness, amongst other key safety matters. Five “overarching themes” also emerged, namely “putting active travel first; the needs of people with disabilities, the role of international standards; connectivity; and data management”.

As part of the Law Commissions’ three-year review into the regulation of automated vehicles, a second consultation paper is expected later this year, considering their use in the provision of passenger services. The Law Commissions' aim is to provide a third consultation paper in 2020, drawing on responses to both papers “to formulate more detailed proposals on the way forward”, with a final report with recommendations to follow in 2021.

Rachel Moore, a Partner at Kennedys, said: "We welcome the Law Commissions’ detailed analysis. The responses highlight that it is absolutely vital that the government and key stakeholders in the industry, including manufacturers and component suppliers, software developers, insurers and lawyers work collaboratively to ensure that AV technology is brought to our roads safely, and under a clear and transparent insurance and liability framework that is sufficiently agile to keep pace with technological advances."