Automated Vehicles: The road to self-driving vehicles

The Automated Vehicles Bill was one of a number trailed in the King’s Speech on 7 November.

The Speech’s background briefing papers, published later that afternoon, confirmed the Government’s intentions to finally legislate for a new framework regulating self-driving or automated vehicles (AV). Those papers also confirm that the AV Bill “implements the recommendations of the 4-year, world-leading review of self-driving vehicle legislation carried out by the Law Commission of England and Wales and the Scottish Law Commission”, which we reported on here.

The Automated Vehicles Bill

The Bill, which runs to 100 clauses (cl.), comprises 7 Parts and 6 Schedules. Most of the measures fall within legislative competence reserved to the UK Parliament under the Scotland Act 1998 and the Government of Wales Act 2006 [1], save for a few exceptions including the measures within Part 5 relating to permits for automated passenger services.

Part 1 introduces a new regulatory scheme for AVs, which requires qualifying vehicles or features to firstly be authorised as self-driving before they can be lawfully used. Note that the process of authorisation – whereby a vehicle or feature is sanctioned as self-driving for lawful use on British roads – is unconnected with the prior type approval process(es) whereby production samples of a vehicle type or system must conform with a range of technical standards.

The ability of a vehicle to travel autonomously would be insufficient for an AV to be authorised as self-driving. Additionally, by cl. 1(2)(b), AVs must be capable of travelling “safely and legally”. That ongoing requirement would be satisfied by complying with a published safety standard [cl. 2] that is likely to improve as the technology matures.

Only AVs capable of (a) travelling autonomously and (b) doing so safely and legally, at least during specified parts of a journey such as on a motorway, may be authorised as self-driving. 

By cl. 1(5), a vehicle or feature qualifies where (a) the vehicle is being controlled by equipment in the vehicle, instead of an individual driver, and (b) neither the vehicle nor its surroundings are being monitored by an individual driver with a view to immediate intervention in the driving of the vehicle. 

That opens the door for AVs being authorised that rely on a transition demand, which requires the motorist in the driving seat to resume control after a short period of notice (possibly only a few seconds). 

However, by cl. 7, regulation making powers would enable to the Secretary of State for Transport (SoSfT) to impose authorisation requirements that oblige the vehicle to be capable of dealing safely even where the motorist – defined as a user-in-charge (UiC) whilst the vehicle is driving itself – does not assume control by the end of the transition period. 

We envisage that responsibility could be delegated to the Vehicle Certification Agency (VCA), which is separately responsible for vehicle type approval.

The result – and, perhaps, headline feature of the Bill – is that whilst a vehicle is driving itself, by cl. 6, an authorised self-driving entity (ASDE) would become legally liable for the vehicle instead of a motorist or UiC. By cl. 5, the ADSE is also responsible for ensuring that the AV remains safe throughout its lifecycle.

Alternatively, AVs may instead be authorised for use without a UiC, in which case the Bill will require a no user-in-charge (NUIC) operator to be licensed to oversee the operation of the vehicle and become legally liable for the vehicle whilst driving itself. By way of example, a NUIC would also be responsible for responding to any difficulties arising during an AV’s journey.

Both ADSEs and NUIC operators are referred to as regulated bodies throughout the Bill.

Part 2 covers criminal liability, which extends beyond dynamic driving offences (arising because of the way in which an AV is driving itself) to include sanctions for failure to comply with authorisation requirements, to share information, or to co-operate with investigations by a new statutory inspector.

Significantly, by cl. 47 and 48, a UiC will enjoy immunity from criminal liability arising from the dynamic driving task where the sole effective cause of an accident was an automated driving system (ADS). However, by cl. 48, this immunity will not apply in a range of circumstances including where (a) a driving offence is also the result of the UIC’s negligence after ceasing to be a UIC (i.e. after the end of a transition period), (b) where the offence arises from an unsafe position in which a vehicle has been left, or (c) where an ADS is knowingly used outside of its intended Operational Design Domain (ODD).

Cl. 53 creates a new offence of using an AV without a UiC or licensed NUIC operator by inserting s. 34B into the Road Traffic Act 1988 (RTA 1988). 

Cl. 55 and 56 amend the RTA 1988 to clarify that the offences of (a) tampering and (b) fitting and supplying defective parts include the installation of unauthorised software.

Part 3 deals with policing and investigation. It requires the SoSfT to appoint at least one statutory inspector to determine the cause of relevant incidents involving authorised automated vehicles (but not to determine blame or liability). The obligation is framed in terms of a requirement to “identify, improve understanding of, and reduce the risks of harm arising from the use of authorised automated vehicles” with a range of investigatory powers and sanctions being conferred. Despite then SoSfT undertaking to create a Road Safety Investigation Branch in June 2022 , the statutory inspector’s remit appears limited to accidents involving authorised AVs rather than extending to conventional traffic also.

Part 4 would facilitate prohibitions on a range of protected terms, and the creation of criminal offences, unless used solely in connection with the marketing of authorised automated vehicles to end-users in Great Britain. The Government’s policy scoping notes on the AV Bill – which set out how the Government intends to exercise the regulation-making powers under it – confirm that, in connection with cl. 78, “subject to consultation, it is proposed that the regulations will initially specify [restrictions on] the terms identified by the Law Commissions in their final report: “self-drive”, “self-driving”, “drive itself”, “driverless” and “automated vehicle”…other terms might need to be added to this list, for example, “automated driving” and “autonomous vehicle””.

Part 5 concerns the granting of permits for automated passenger service vehicles. It enables the SoSfT in England, or Scottish or Welsh ministers, to grant permits disapplying legislation that would otherwise affect passenger services and establishes a licensing scheme for NUIC operators. We envisage that responsibility will ultimately be delegated to the Driver & Vehicle Standards Agency (DVSA), whose current remit extends to traffic commissioners.

Parts 6 and 7 otherwise concern consequential amendments to other road traffic legislation.

Data sharing with motor insurers

Authorised insurers should be encouraged that, whilst seemingly refenced only briefly, cl. 14 and 88 of the AV Bill explicitly reference the collection and sharing of information by both regulated bodies, i.e. ADSEs and NUICOs, respectively. Cl 14(3) and 88(2) each confirm that “references to sharing [information] include— (a) sharing with the Secretary of State or other public authorities, and (b) sharing with private businesses (such as vehicle manufacturers or insurers)”.

Additionally, the Government's policy scoping notes explain:

“There are 3 main reasons for imposing information collection requirements …

The third reason is to enable insurers to assess claims under section 2 of the Automated and Electric Vehicles Act 2018. Here, 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…

… Under clause 42(3) the Secretary of State can authorise the insurer to disclose information to the extent necessary, for example, to bring or defend claims in legal proceedings.”

Despite promising signs for insurers, the Law Commissions’ recommendation that the UK Government should put in place measures to provide compensation in respect of uninsured vehicles does not (yet) appear to have been taken forward. Undoubtedly, given the absence of contractual arrangements between the national guarantee fund and at-fault parties, consideration should also be given to facilitating the sharing of information with compensators such as the Motor Insurers' Bureau.

We will continue to monitor developments given that the AV Bill reserves no less than 35 delegated powers indicating the detail, within a raft of secondary legislation, will follow.

At the time of writing, the AV Bill is provisionally scheduled for committee stage (in the House of Lords) on 10, 15 and 17 January. During this time, it shall undergo a line-by-line examination by members with any proposed amendments being voted on and carried forward if agreed.

Please do not hesitate to contact a member of our market leading practice should you wish to explore any issues arising.

[1] See [4.1] of the House of Lords Briefing published 21 November 2023