The Law Commission of England and Wales and the Scottish Law Commission (the Law Commissions) have published a joint report, looking at the legal implications of autonomous driving and ADAS and how the law should be adapted.
The report recommends introducing a new Automated Vehicles Act, which draws a clear distinction between features which just assist drivers, such as adaptive cruise control, and those that are self-driving.
Under the Law Commissions’ proposals, when a car is authorized by a regulatory agency as having “self-driving features” and those features are in-use, the person in the driving seat would no longer be responsible for how the car drives. Instead, the company or body that obtained the authorization (an Authorised Self-Driving Entity) would face regulatory sanctions if anything goes wrong.
Nicholas Paines QC, Public Law Commissioner, explained, “We have an unprecedented opportunity to promote public acceptance of automated vehicles with our recommendations on safety assurance and clarify legal liability. We can also make sure accessibility, especially for older and disabled people, is prioritized from the outset.”
The report anticipates that, in future, current systems will develop to a point where an automated vehicle will be able to drive itself for at least part of a journey, without a human paying attention to the road. For example, a car may be able to drive itself on a highway, or a shuttle bus may be able to navigate a particular route.
A key recommendation of the report is that the person in the driving seat would no longer be defined as a driver but a “user-in-charge”, who cannot be prosecuted for offences which arise directly from the driving task. They would have immunity from a wide range of offences – from dangerous driving to exceeding the speed limit or running a red light. However, the user-in-charge would retain other driver duties, such as carrying insurance, checking loads or ensuring that children wear seatbelts.
The Authorised Self-Driving Entity (or ASDE) that had the vehicle authorized would also assume responsibility for it: if the vehicle drives in a way which would be criminal or unsafe if performed by a human driver, an in-use regulator would work with the ASDE to ensure that the matter does not recur. Regulatory sanctions would also be available to the regulator.
Furthermore, the report addresses the issue that some vehicles may be authorized to drive themselves without anyone in the driver seat. Here any occupants of the vehicle would simply be passengers. Instead of having a user-in-charge, a licensed operator would be responsible for overseeing the journey. There would also be requirements for passenger services to be accessible, especially to older and disabled people.
The Law Commissions’ recommendations build on the reforms introduced by the Automated and Electric Vehicles Act 2018. The 2018 act ensured that victims who suffer injury or damage from a vehicle that was driving itself will not need to prove that anyone was at fault. Instead, the insurer will compensate the victim directly.
Significantly, the Law Commissions also recommend new safeguards to stop driver assistance features from being marketed as self-driving. This, they say, would help to minimize the risk of collisions caused by members of the public thinking that they do not need to pay attention to the road while a driver assistance feature is in operation.
The report has been laid before the UK Parliament and the Scottish Parliament. It will be for the UK, Scottish and Welsh governments to decide whether to accept the Commissions’ recommendations and introduce legislation to bring them into effect.
