Regulation of automated passenger-only transport services must be sufficiently flexible
The results of Part 2 of the Law Commissions’ joint consultation into the regulation of automated vehicles, “emphasised how uncertain the future has become, and how regulation must be sufficiently flexible to deal with a wide variety of eventualities.” These uncertainties having been “amplified” since this part of the consultation closed in February 2020.
Published on 20 May, the Analysis of the written responses received from a wide range of consultees - that included insurance organisations, legal professionals, public sector organisations, and original equipment manufacturers – highlighted Kennedys’ thinking on several key issues.
The focus of Part 2 of the consultation was on a new form of transport service - Highly Automated Road Passenger Service (HARPS) - using “highly automated vehicles to supply road journeys to passengers without a human driver or user-in-charge”.
Our response highlighted that any new regulatory structure should be outcome focussed and provide flexibility to regulators to achieve those outcomes. That way, regulation will be better placed to keep pace with technology and not pose a barrier to innovation – a regulatory framework that can evolve and adapt as the technology develops is essential.
We also underlined the importance of building consumer confidence in driverless public transport. The approach taken to ensuring passenger safety, accessibility for all, and data privacy to name a few of the key challenges, will ultimately determine consumer acceptance and the extent to which these new services will be successfully adopted.
With a new licencing system and operator requirements for HARPS key elements of the consultation, our thinking on the difficulties of simply replicating the current licencing system that governs public service vehicles (PSV) was highlighted:
“The current system which governs PSV licences is complex and has evolved in a piecemeal fashion over many years. It is likely to be difficult to establish such a system for HARPS, given the infancy of HARPS vehicles. If rigidly applied, it could be too onerous to obtain a HARPS licence. Flexibility is needed.”
That said, we also submitted that applicants must submit a strong safety case and demonstrate competence. The requirements will not and cannot necessarily resemble that required in a PSV context but there still needs to be a very strong focus on passenger safety.
We also called for certainty in respect of legal responsibility for insuring, keeping the vehicle roadworthy and installing safety critical updates. Our suggestion of an approach similar to that of the Financial Conduct Authority’s Senior Manager and Certification Regime, was cited within the Analysis:
HARPS operators would be required to identify a senior manager, ultimately responsible for the safety compliance of the HARPS vehicle(s), and to whom a sub-category of senior staff would report to in respect of the specific elements necessary to achieve that compliance. … The operator should be required to demonstrate that it has taken and will proactively take substantive action to ensure passenger safety.
Further, the Analysis noted:
Kennedys Law LLP agreed that HARPS operators should have a duty to insure vehicles, and this should include risks relating to cyber security. They listed in detail the main cyber risks involved, from a traditional breach of personal data to ransomware attacks and connection risks, as well as manipulation of safety-critical systems.
Whilst agreeing on the need for flexible regulation, as to whether the legislation applicable to HARPS should set out broad duties, “with a power to issue statutory guidance to supplement these obligations” to provide that flexibility, our caution on this was referenced as follows:
The broader the duty the more likely parties will become engaged in lengthy and costly litigation. There needs to be clarity in the applicable duties before HARPS are put into operation on UK roads.
Autonomous vehicles represent opportunities to unlock new capacity in urban transport systems by improving efficiency within the existing infrastructure, potentially reducing the need to invest billions in new metro or rail systems. However, the potential infrastructure requirements and existing road space limitations in many areas, will also present unique challenges. We support the proposal for a single standardised national system of operator licensing (subject perhaps to some regional differences in the UK).
As part of the Law Commissions’ three-year review, a third consultation paper is expected later this year, “which will consider the safety assurance scheme for automated vehicles, corporate liability and other issues such as access to data”. The aim being that the third paper will include detailed proposals, leading to a final report in 2021, setting out recommendations on all issues.