Autonomous vehicles: key developments

Automated Vehicles Act 2024: a welcome development for industry

Granted Royal Assent on 20 May 2024, the Automated Vehicles Bill has become law in the UK.  Marking an important development towards enabling the safe deployment of self-driving, a legal framework that provides the foundation for a new regulatory and liability scheme for automated vehicles (AVs).

Alongside requirements to provide certain information regarding AV safety, the new Act will contain measures of central importance to insurers. Importantly, the Act includes provision for sharing of information held by ‘authorised self-driving entities’ and ‘licensed no-user-in-charge operators’, with private business including insurers.  Whilst acknowledged as a key matter during parliamentary debates, the detail on this is not contained in the Act, but is expected to follow in secondary legislation - informed by further consultation - and in many respects is crucial to the successful implementation of this technology.

Insurers will require access to data following a collision involving an AV to establish who or what was in control of the vehicle at material times. In particular, it will be imperative for court experts and insurers to have ready access to event data records and sensor data from vehicles in civil and criminal litigation involving AVs.

Other provisions include immunity for ‘drivers’ in relation to incidents where the vehicle in question was driving autonomously at the relevant time, marketing restrictions and the introduction of a permit system for automated passenger services, such as driverless shuttle buses.

The uncontroversial passage of the Bill through Parliament demonstrates cross-party support for innovative forms of transport in the UK.  Although the Act sets out the overall framework to govern AVs, secondary legislation will follow to provide the regulatory detail, including that relating to authorisation and in-use regulation.  While consultations to shape that detail are expected later this year, it may be that the focus of such measures will resume following the General Election, which must be held no later than 28 January 2025.

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• Automated Vehicles Act 2024: a welcome development for industry

A UK Government policy paper ‘Automated Vehicles Bill: policy scoping notes’ published on 21 November 2023 recognises the “innovative, highly technical and fast-changing” nature of the self-driving vehicle industry.

To that end the Bill provides for 35 delegated powers to ensure legislation keeps pace and continues to be fit for purpose. Whilst the Bill prescribes a new legislative framework for self-driving vehicles, the paper explains “the technical level of detail is more appropriately dealt with through secondary legislation”.

Among the key measures in the Bill, information collection requirements on Authorised Self-Driving Entities (ASDEs) are imposed. This is to enable the Secretary of State to discharge their monitoring duty, and for breaches of authorisation conditions or requirements to be identified under the in-use regulatory scheme. This requirement is also to enable the assessment of claims (under the Automated and Electric Vehicles Act 2018) by insurers.

The government acknowledge “insurers will need to rely on vehicle-generated data to verify that the vehicle was in the alleged location, was driving itself, and to assist in identifying what party in the liability chain is responsible for any fault that caused or contributed to the incident”.

In relation to data needed by the in-use regulatory scheme and insurers, the government anticipates “the requirement is likely to include each occasion” of activation/deactivation of a self-driving feature, issuing of a transition demand and when a collision is detected.

The policy paper indicates the timing of secondary legislation will be subject to consultation on statutory instruments and guidance from next year through to 2026.

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• Automated Vehicles Bill: briefing note

Automated Vehicles Bill introduced in the House of Lords

Introduced and having its first reading in the House of Lords on 8 November, the Bill implements recommendations for reform made by the Law Commission of England and Wales and the Scottish Law Commission. In doing so, the Bill addresses matters relating to self-driving vehicle technology that were expected to feature in the previously announced (and paused) Transport Bill.

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Automated Vehicles Bill announced in King’s Speech

Announced in the King’s Speech on 7 November 2023 the Bill aims to “unlock a transport revolution by enabling the safe deployment of self-driving vehicles” by creating a comprehensive legal framework and updating existing laws.

The Bill represents an important step in developing the legal and regulatory framework - which in our view must evolve and adapt with the technology. It is estimated that the value of a successful UK self-driving sector could reach almost £42 billion by 2035. To that end the Bill also represents a move towards realising the significant economic, social and commercial opportunities that the technology presents.

Niall Edwards, Partner, commented:

“Having helped shape the Automated and Electric Vehicles Act 2018 and engaged with government and Law Commission consultations on self-driving vehicles that have followed, we welcome the announcement of an Automated Vehicles Bill. We are pleased to see safety is front and centre of the Bill and rightly so in ensuring public confidence in this emerging technology. One issue notable by its absence in the briefing note (but may still be in the Bill or related legislation) is how access to in-vehicle data will be ensured to key stakeholders. Further detail on this will be welcome, as ready access to such data is crucial for insurers and the police in determining where liability lies in the event of a crash.”

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Kennedys calls for safety ambition for self-driving vehicles to go further

Responding to the consultation launched by the Centre for Connected and Autonomous Vehicles (CCAV) on 19 August 2022 – ‘Self-driving vehicles – new safety ambition’ – we have welcomed the proposed safety ambition for self-driving vehicles, but have highlighted that wherever possible the aim should be to go further to fully utilise the capabilities of the technology or risk losing public support.

The government consultation proposes that such vehicles should be held to “the equivalent standard of behaviour as that expected of human drivers; competent and careful.”

Whilst we agree, the technology is such that autonomous vehicles will have “a number of advantages over their human counterparts” and so the aim should be, wherever possible, to strive for and to apply a higher safety standard than proposed.

We have also previously raised concerns about the potential in some circumstances for self-driving vehicles to seemingly be held to or required in some way under regulation, to meet a conceivably lower standard of safe driving than a safe and competent human driver. In response to an earlier government call for evidence on the safe use of automated lane keeping system technology on motorways, we expressed our concern at some aspects of the ‘minimum risk manoeuvre’. This was particularly in the context of a self-driving vehicle coming to a stop in lane (rather than seeking ‘safe harbour’ as a human driver would be required to, if possible), and for this to be considered a safe behaviour. By contrast, a human driver might otherwise be found negligent or criminally negligent in similar circumstances.

We do appreciate that a balance must be struck as technologies are developed to ensure that innovation is not stifled, but it would be harmful to public attitudes and to building a citable book of ‘evidence of safety’ to apply different and lower standards to self-driving vehicles in comparison to human-driven ones.

If the public sense is that either this emergent technology is not as capable or safe as a competent and safe human driver (or indeed safer), particularly in emergency situations, or that standards or expectations are seemingly lower,…it seems inevitable that this would understandably significantly delay the adoption.

Niall Edwards, Partner, commented "an evolving transport landscape that includes recent changes to the Highway Code (with further changes anticipated), the potential regulation of e-scooters, and possible changes to driver licensing mean that the safety standard of self-driving vehicles cannot be considered in isolation. Rather, it must be considered in the context of this background of ongoing change."

The Highway Code – new section on self-driving vehicles laid before Parliament

On 25 April 2022, a proposed new section to The Highway Code entitled ‘Self-driving vehicles’ was laid before both Houses of Parliament (in accordance with section 38(3) of the Road Traffic Act 1988). The Department for Transport recognising that the new section is required “to clearly articulate the expectations for users of vehicles with automated, or self-driving, capability”.

The proposed alterations follow the public consultation launched by the Department for Transport (which closed on 28 May 2021).

In addition to providing a summary of the responses to the consultation, the outcome document also references the joint Law Commissions report (published on 26 January 2022) which set out recommendations for a new legal framework to support the safe deployment of self-driving vehicles. In doing so, it states that the “Government has committed to legislating on automated vehicles and is currently considering the recommendations, which will require a long-term programme of regulatory reform”. Recognising that the consultation falls within that “wider context and as part of a programme of extensive reform” the amendments to the Highway Code are considered by the government as a necessary “interim measure to support the safe use of the first self-driving vehicles on UK roads”.

The proposed alterations must not be made until a period of 40 days (starting on the day the changes were laid before Parliament) has ended.

Recommendations for legal reforms: Law Commissions publish self-driving vehicles report

The Law Commission of England and Wales and the Scottish Law Commission (the Law Commissions) joint report on the safe introduction of self-driving vehicles has been published following a three-year review.

The 75 recommendations in the report include the introduction of a new Automated Vehicles Act “setting out new regulatory schemes and new legal actors”. The recommendations also reflect that consultees “expressed a strong desire for a clear bright line between systems which require attention and those that do not, to minimise the potential for confusion between the two”.

For a feature to be self-driving the Law Commissions’ have recommended that “the authorisation authority must be satisfied that it can control the vehicle so as to drive safely and legally, even if an individual is not monitoring the driving environment, the vehicle or the way that it drives”.

Alongside this the report highlights the important distinction to the way vehicles that are ‘driver assisted’ rather than ‘self-driving’ are marketed.

With the report having been laid before the UK Parliament and the Scottish Parliament, it is now for the UK, Scottish and Welsh Governments to consider and determine whether the recommendations are accepted and if so, to introduce the legislation required.

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• Response to the safe introduction of self-driving vehicles Law Commissions report

Law Commissions publish summary of responses to third consultation paper

The summary of responses to the third consultation paper on the legal framework required for the deployment of automated vehicles has been published. The interim document - reporting on the third stage in this three-year review by the Law Commission of England and Wales and the Scottish Law Commission - can be found here.

Among the overarching themes that emerged from the responses was the need for flexibility, with many stakeholders placing “a strong emphasis on the ability to revise and update regulations for AVs”. The interim document noting in this respect that the “uncertainties and fast evolution of the technologies mean the legal system needs to be adaptable”.

A final report providing “recommendations for legal change” is expected later this year and will include an impact assessment. Alongside the final report, the Law Commissions “intend to publish a much fuller analysis of responses” that will include “detailed discussion of consultees’ views”.

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Consultation on proposed automated vehicles section in The Highway Code closes

In response to this Department for Transport consultation which closed today, we have recognised the merit in providing a separate section of The Highway Code to cover off proper and safe use of motor vehicles when in autonomous mode (and moving in and out of autonomous mode).

We do however, consider that certain elements of the proposed wording need to go further to ensure clarity in relation to the obligations that rest with users of automated vehicles.

We believe the new wording should provide that users of vehicles must be entirely clear that they are in a vehicle which can move in and out of fully autonomous mode. Equally, they need to be able to clearly distinguish such vehicles from vehicles with only assisted driving features.

Niall Edwards, Partner, commented "it is all too easy to see how, unless properly informed by a public education information campaign, users may assume, for example, that an intelligent cruise control system or assisted lane keeping system was ‘fully autonomous’ - thereby reducing their attention and involvement in the driving of the vehicle in error when the vehicle was not in fact capable of fully autonomous mode."

Outcome of Call for Evidence on ALKS technology published and consultation on amendments to The Highway Code launched

On 28 April 2021 the Department for Transport and Centre for Connected and Autonomous Vehicles published the summary of responses and next steps following the Call for Evidence on automated lane keeping system (ALKS) technology.

Amongst the key areas addressed in the outcome document are the Government’s process for listing automated vehicles under the Automated and Electric Vehicles Act 2018 (including the application of the ‘Monitoring and Control Tests’ set out in the Call for Evidence, and the use of ALKS up to 70mph. In response to comments received on the Tests, the Government has made changes to the definitions of both (rather than the criteria) so that it is clear “that that they apply only where the vehicle is ‘operating within its Operational Design Domain (ODD), and can identify the boundaries of that domain.’”

On the use of ALKS up to 70mph, a “small majority of respondents opposed the idea of allowing ALKS vehicles to drive up to 70mph, many because they consider ALKS to be unsafe and that current technology does not support safe operation at higher speed.” Others pointing out that the ten second period to respond to a transition demand may be “too long for operation at a higher speed.” The next steps include commissioning research “to scope the technical requirements needed for enabling motorway-based automated driving systems to operate at higher speed and change lanes.”

As well as highlighting several policy areas, such as driver education, where further steps will be necessary, the Government has also published a consultation alongside this outcome document seeking views on proposed amendments to the Highway Code in relation to automated vehicles. The consultation closes on 28 May 2021.

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Safety standards for autonomous vehicles should be high to ensure success, says Kennedys

Responding to the third and final Law Commission consultation on a regulatory framework for autonomous vehicles (AVs) (which closed on 18 March 2021), we have highlighted that the minimum safety standard for an AV should be above that of the “average” human driver as to do anything less than this is to risk public confidence in this emergent technology.

In our response we have said that an AV should be able to drive at least as safely as a “reasonably competent and careful human driver” and, on many occasions, adopt a safer overall standard.

One of the most significant perceived benefits of the introduction of AVs is the reduction of road traffic collisions. We therefore consider the appropriate standard should be an elevated standard, and safer than the average human. This would include better reaction times, the ability to assess the surrounding environment and potential hazards and so on.

Niall Edwards, Partner, commented "whilst we can see the need for transition demands to be sent when a vehicle is moving on or off certain road types, there is the sense within this consultation that the AV may be sending transition demands back to the user-in-charge in perhaps too wide a set of emergency circumstances. We believe that the correct approach and the first rule would be to start with the ambition that an AV can and will respond to all emergency situations in at least as safe a manner as a human driver, if not better."