A wide-ranging consultation has been launched into the legal reforms surrounding driverless cars.
The Law Commission of England and Wales and the Scottish Law Commission have launched a public consultation on legal reforms surrounding the technology, which impacts on issues of liability in terms of road traffic accidents.
The consultation will run until 8 February 2019. The launch was accompanied by a report, on which they make a number of tentative proposals on which they are now inviting responses.
Among the questions that the consultation asks is the one of who would be liable in the event of an accident involving an autonomous vehicle, and what kinds of amendments to the law need to be made to make it clear where responsibility lies.
Nicholas Paines QC, the law commissioner, said: “Automated vehicles will have a transformative effect on how we take journeys, our standard of living and the wider economy.
“We want to hear from stakeholders and the public about how to create an environment in which this technology can flourish whilst maintaining public safety.”
Jesse Norman, the roads minister, said: “With automated driving technology advancing rapidly, it is important that our laws and regulations keep pace so that the UK can remain a world leader in this field. The important work launched today by the Law Commission should help to ensure that.”
However, there is some concern that the scope of the consultation is too limited. The pre-consultation report makes clear that the areas of data protection and privacy, theft, cybersecurity and hacking are omitted, the Law Commission saying that they “are integral to delivering effective policy in this area, but are predominantly outside our terms of reference because they are being considered by others.”
Kurt Rowe, who leader the motor technology group at law firm Weightmans, said: “This is perhaps the widest ranging consultation on such a rapidly-evolving issue and we welcome the opportunity to help shape the future of transport in this country, and perhaps even globally.
“However, there’s a serious omission in the scope of the consultation. One of the biggest questions facing insurers is how they’ll access the data collected by autonomous vehicles to quickly and accurately determine liability in the event of an accident.
“While accepting the Law Commission’s comments about avoiding duplication, it is enormously concerning that issues of data protection, theft and cyber security aren’t being addressed. The development of the legal framework for autonomous vehicles cannot be progressed in isolation. We will be raising this point in our response to the consultation.”
Laurenz Gerger, motor policy advisor at the Association of British Insurers, said: “The Law Commission rightly notes that insurers will need to use vehicle-collected data after an accident to establish liability. If this data is not made available, the provisions of the Automated and Electric Vehicles Act will not work in practice. Insurers will always adhere to all the relevant data protection regulations.
“The new regime can only work effectively if truly automated vehicles are classified as such. It’s good to see that the Law Commission agrees with the ABI that a clear boundary between assisted and automated driving systems is critical, and that consumers need to understand the limitations of technology.”
The pre-consultation report covers a range of issues, including a lengthy consideration of what the introduction of driverless cars will mean for the question of liability.
On the matter of civil liability, the Law Commission generally finds the current law adequate, citing the provision in the Automated and Electrical Vehicles Act 2018 that allows an insurer to seek damages from parties liable for an accident, for example the manufacturer, once it has settled a claim with the injured party.
However, one area where the consultation does question whether there is a need for review is software updates, citing doubt over whether current product liability law would apply to defective software, which could prove deadly in the case of driverless cars.
So far as criminal liability is concerned, the Law Commission has tentatively proposed that “when a vehicle is driving itself, the human user is not a driver and not liable for any offences which arise out of the dynamic driving task,” which is to say, out of controlling the steering, acceleration and braking of a vehicle.
The consultation also invites views on a proposal to create a new ‘user-in-charge’ status, which would be subject to some criminal offences, citing concern that even highly automated vehicles may find themselves in situations where they are unable to drive themselves, for example off main roads or in challenging weather conditions.
The offences to which a user-in-charge may be subject include “the requirement to take reasonable steps to avoid an accident, where the user-in-charge is subjectively aware of the risk of serious injury”, for example.
What the specific responsibilities of a user-in-charge would be is probed by several of the consultation’s questions, spanning responsibilities including fitness to drive, insurance and roadworthiness, duties following an accident and ensuring children wear seatbelts.
Where accidents arise out of the car driving itself, the Law Commission outline a potential procedure whereby the registered keeper of the vehicle authorizes data to be provided to the police, and the police – once satisfied that the fault lies with the automated driving system – refer the matter to the regulator for investigation.
In cases where the regulator finds the automated driving system responsible, the Law Commission “tentatively propose that the entity which vouches for the automated driving system should be subject to a system of regulatory sanctions, including warnings, fines and withdrawal of authorisation.”
The consultation also seeks input on whether the introduction of driverless cars necessitates changes in the area of aggravated offences. For instance, one question asks whether new corporate offences should be created to deal with cases wherein the actions of a developer of an automated driving system results in death or serious injury.
Also under consideration be will whether road rules will need to be adapted to facilitate a smooth introduction of driverless cars to the UK’s roads. For instance, should autonomous vehicles be permitted to mount the pavement to give way to emergency vehicles?
Some autonomous vehicles are expected to be in use by 2025, with research groups predicting that the UK’s roads will be fully automated between 2050 and 2070.
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