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This article originally appeared in Insurance Day, June 2024.
Advancements in technology coupled with rising commercial opportunities have reinforced the need to update the laws and regulations governing “beyond visual line of sight” (BVLOS) drone use in the UK.
Many industries have embraced the benefits afforded by drone use: the police routinely use drones to help monitor major incidents; the construction industry is now able to obtain accurate information quicker and more safely than a human; and medical services can provide supplies and assistance to remote locations.
To facilitate these operations, the Civil Aviation Authority (CAA) has granted permissions via schemes called “innovation sandboxes” for individual projects and trials to take place. However, to allow such flights at scale – and outside the restrictions around permitted aviation environments – requires a significant change to the current laws and regulatory framework.
In response, the CAA and the Law Commission have each launched consultations this year, seeking views on what is needed from a drone user perspective and how these new rules will co-exist with legislation on aviation and civil liability.
Data sharing
While these conversations are welcomed, some argue they still do not go far enough, particularly in relation to the issues of collection and sharing of data, or the role insurance will play.
Kennedys has responded to each of these consultations, reiterating the need to consider insurance and data sharing now, and not at a later date.
The CAA consultations have focused largely on proposed changes to existing regulations on categories of users, pilots and airspace restrictions. For example, questions were posed in respect of how close drones can fly to residential, commercial, industrial recreational areas or buildings.
The CAA’s second consultation this year asked only one question. Respondents were asked to provide their views on the proposed policy on unmanned aircraft operations within an atypical air environment. The policy proposal is intended to help operators fly their drones safely BVLOS of the remote pilot in what has been called an “atypical air environment”.
An atypical air environment is described as “a volume of airspace where you can reasonably anticipate there to be a reduced number of conventionally piloted aircraft due to the proximity of ground infrastructure”.
The proposed policy is to enable BVLOS operations in environments where fewer aircraft operate, by remaining at low heights and close to buildings and infrastructure.
The Law Commission’s consultation paper was more substantial, reviewing current aviation law to identify gaps or provisions that could prevent the safe deployment of highly automated and autonomous aviation systems. It has asked for views on the requirements for drone operations in specific categories and the responsibilities of operations involving a remote pilot controlling multiple drones simultaneously.
The consultation also sought industry leaders’ views on the adequacy of the current UK’s regulatory framework in regulating evolving drone technology. This is to enable the Law Commission to determine the ability of the current legal framework to suitably determine liability for incidents involving personal injury, death and incidents involving cargo loss or damage in the context of drone operation.
Civil liability
The Law Commission’s paper also explored the civil liability implications. It revisits the question of whether there should be a review of product liability law, including the Consumer Protection Act 1897, to account for the challenges of emerging technologies. Notably, it asks respondents to consider whether the review should cover product liability law more broadly, rather than be confined to aviation or automated vehicles.
The insurance requirements for drone users intending to fly BVLOS, especially on a “routine” basis, will need to be carefully considered by the CAA and the Department for Transport, particularly in relation to the potential implementation of mandatory insurance for such routine flights.
The increased use of commercial drones operating BVLOS flights would also create a wealth of drone flight data about the types of flights, their duration, their purpose, and the frequency of flights BVLOS. This data would be captured by whatever flight information and notification system is introduced. The insurance industry – among others – would benefit from access to this data when assessing and pricing this evolving risk.
The inclusion of insurance requirements and the sharing of anonymised data is fundamental to the future-proofing of this regulatory framework. This will assist in building a comprehensive picture of how these technologies are used and their development.
Implementing data-sharing capabilities while developing the regulatory framework provides a prime opportunity to measure that evolution. To do so in years to come would be an opportunity missed.
Aviation
Insurance and reinsurance