Regulatory progress

A new Code of Practice for Automated Vehicle Trialling reaffirms the Government’s desire for new transport technology to be invented, designed and used in the UK. This follows from the introduction of the Automated and Electric Vehicles Act 2018 which extended mandatory motor insurance to cover the use of automated vehicles so that victims of an accident caused by a fault in the automated vehicle will be covered.

The Code aims to provide further clarity and recommendations for measures that should be taken to maintain safety during this testing phase of automated vehicles. This is seen as a welcome step by industry experts who are keen to see lawmakers keep up with the rapid pace of innovation. The Code addresses key issues such as road safety, insurance, infrastructure requirements, stakeholder engagement and liability in the event of an accident.

The Code allows for the trialling of any level of automated vehicle technology on the UK’s public roads, if the trial is conducted in line with UK law. This includes having:

  • a driver, in or out of the vehicle, who is ready, able and willing to resume control of the vehicle and has the appropriate licence for the vehicle under test;
  • a roadworthy vehicle; and
  • appropriate insurance in place.

In the longer term it remains to be seen when the issue will be resolved as to who will ultimately be responsible when a driverless car goes wrong. Jesse Norman, Road Minister, in March 2018 announced a three year review to consider who will be the responsible person. This is a key question as we could see a blend of driver, machine and software controlling a vehicle. This question is relevant to both our criminal and civil law. If a person is seriously injured as a result of a driverless car then against whom should the State bring criminal charges, and against whom should the injured person seek redress?

The cost to the public purse of future road design could be considerably lightened if driverless cars are widely accepted (eg instead of building wider roads with more lanes, you could have fewer lanes, as driverless cars could allow for shorter braking distances between the vehicles). The difficulty with the concept of a saving to the public purse on highway design is that, for some years to come, there is almost certainly going to be a combination of vehicles sharing the road; those that are driverless and those with a driver.

Further, there is the whole issue of cybersecurity to grapple with; the dangers associated with a fleet of driverless vehicles being maliciously hacked are grave. A new cyber security standard for self-driving vehicles, developed by the British Standards Institute (BSI) and funded by the Department for Transport, goes some way to addressing these concerns.

Industry progress

The automobile industry is no longer confined to traditional motor vehicle manufacturers in the wake of driverless cars; we have witnessed the likes of Google, primarily a software company, developing their own driverless vehicle. In response to this entry into the market, traditional motor manufacturers are collaborating with each other on discrete technology or partnering up with software companies to develop a product for market.

By way of example, we have seen BMW and Daimler partner up on mobility technology, Ford and Volkswagen agreed to investigate ways of working on electric and autonomous vehicles together, Honda invested in its rival General Motors’ driverless unit with a view to launching a fleet of unmanned taxis and there are many more examples.

The automobile industry has reached a fork in the road and individual manufacturers need to make a decision as to whether to double down on traditional cars or to embrace new technologies such as driverless and electric vehicles, in an effort to try to stay ahead of the curve, preserving and hopefully increasing their market share. As such, I suspect we will see many more collaborations between manufacturers and software companies as they try to remain competitive, balancing the risk of substantial investment by sharing the cost with other partners who may be ahead of the game in certain areas like software.

This collaboration between competing organisations can, in itself, generate other types of disputes such as patent or copyright infringement due to the risk of more than one manufacturer teaming up with a single software supplier. Consider for a moment how current vehicle manufacturing operates where certain features are shared across manufacturers like airbags; that became a problem some time ago when the airbag was found to be defective but installed in a number of different car makes and models.

The future

The UK Government appears determined to be seen as a leader in the development of the driverless car, with the chancellor, Philip Hammond, in November 2018 promising driverless cars on our roads by 2021.

In response to the chancellor’s announcement, Jack Cousens, head of roads policy for automotive association AA said in a BBC interview:

“While we generally welcome ambitious targets, 2021 feels extremely challenging given the technical and legal hurdles yet to be overcome. It is possible we might see ‘driverless’ vehicles following fixed routes in dedicated lanes by then – but the self-driving vehicle that can take you from your home to anywhere and back again in any weather and in mixed traffic is much, much further away.”

It is almost inevitable that challenges lie ahead on the introduction of the fully driverless car. Manufacturers of driverless cars will want to supply a product on a global scale as quickly as it can; if the UK road system is not ready, there is a risk that they will move production to a country that offers favourable road laws.

The Government, likewise, is faced with a number of large challenges such as amendments to the civil and criminal law, amendments to our road network and other issues which will all take time to implement.

There is a real risk of the Government permitting early use of driverless cars on UK roads with untested legislation to retain a leading position. This would likely result in a surge of test cases before the courts to sort out the answers to all of the questions that we have touched upon above.

Further reading

Legislation.gov.uk: Automated and Electric Vehicles Act 2018

Department for Transport: Code of Practice: Automated vehicle trialling

Department for Transport: New cyber security standard for self-driving vehicles

Law Commission: Automated Vehicles consultation

Matthew Claxson is a partner at Moore Blatch LLP. He specialises in accessing rehabilitation for those who have suffered serious injury and representing at inquest those who have been bereaved. Email matthew.claxson@mooreblatch.com. Twitter @matthewclaxson.

Image: Driverless Car Trials by Kevin Thorne on Flickr.

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