This article was originally published in Insurance POST, March 2023.
Following enactment of the Automated and Electric Vehicles Act 2018 - designed to ‘kick-start’ the move towards self-driving vehicles – detailed exploration by the Law Commission of England and Wales, and the Scottish Law Commission into the wider legal and regulatory framework required, followed. With the baton handed back to the UK Government by way of an extensive set of recommendations published in January last year, the announcement of the Transport Bill in May looked set to continue that recent momentum.
In August 2022, a government policy paper followed, identifying that by 2025 “the UK will begin to see deployments of self-driving vehicles”. However, the Bill - intended to provide the “broad structure of the framework, with further detail to be developed and set out in secondary legislation” - was shelved in October 2022. A move that has prompted some concern that the UK’s position amongst the leading jurisdictions for this transport technology, is at risk.
In December, a cross-industry letter sent to the Prime Minister, the Secretary of State for Transport and the Secretary of State for Business, Energy and Industrial Strategy, called for the government to keep “its commitment to introduce primary legislation” and expressed the desire to “work with the government to ensure a regulatory framework for AVs is put in place as soon as possible”.
Motor manufacturers and software houses developing self-driving vehicles will need some strong indication of minimum standards for safety and driving behaviour and what regulations will look like, sooner rather than later. In particular, more direction on what will constitute good, non-negligent, driving behaviour for self-driving vehicles and use of such vehicles by users in charge is required. Such guidance is required for every aspect of vehicle use, from executing a good left turn or overtaking manoeuvre through to more complex driver behaviours.
So too insurers. In the absence of a comprehensive legal and regulatory framework, questions arise as to how insurers embark upon re-gearing their insurance products and policy wordings. As driving functions become increasingly automated the shift in responsibility from the human driver to the vehicle itself becomes apparent. Looking forward, insurance cover is likely to focus less on the registered keeper/owner and more on the specifications of the vehicle itself.
Alongside this, insurers will require guidance on training to upskill their claims handling teams in the interpretation of data being supplied from the vehicles in the event of an accident.
Insurers will be equally concerned to see that vehicles are correctly identified as self-driving or not. They need assurances that they will be able to access in-vehicle data to ascertain whether fault vehicles are self-driving or not at the time and to quickly process claims and ascertain fault.
Reassuringly, ongoing engagement with stakeholders is a theme that runs through the UK Government’s recent policy paper, particularly in the context of consultations ahead of secondary legislation where much of the detail within the framework will be. The government has a central role to play in further facilitating meetings and communication between various stakeholders – in particular insurers on the one hand and OEMs and manufacturers on the other.
Exiting the EU has afforded the UK the opportunity to design and determine its own regulatory framework. However, any significant divergence could prove particularly problematic and appears unlikely, with the policy paper stating that the government has “ensured that the regulatory framework proposed by the Law Commissions is consistent with international regulations”. In the context of the EU, many safety standards are canon in the motor industry and are likely to remain so and equally that a similar approach will be taken with self-driving features for the same reason.
Whilst driving and regulatory standards for this class of vehicles may differ from one jurisdiction to the next, there clearly will need to be near-complete regulatory equivalence in order for such vehicles to both be exported from and imported in to the UK.
Legislation is often behind the curve of technological innovation. It remains to be seen whether primary legislation on self-driving technologies (in the form of the Transport Bill or another Bill) is introduced in the next parliamentary session this year. What is clear is that the regulatory framework must be one that can evolve and adapt as the technology develops, and prioritises safety.