Shoosmiths’ response to The Law Commission’s consultation on autonomous vehicles

The Law Commission recently released its third and final consultation paper on autonomous vehicles. The paper launched a consultation process with the aim of developing policy and seeking regulatory recommendations for the deployment of autonomous vehicles on British roads.

Earlier consultation papers sought to collate views on overall vehicle safety and the regulation of automated passenger services (e.g. driverless buses, trains, and taxis). Whereas, this final consultation focussed on some of the more practical, legal issues with autonomous vehicles. For example, responsibility for control over the vehicle, how accidents should be investigated, and the role of vehicle data in insurance claims and determining criminal and civil liability.

Shoosmiths’ response to the consultation was led by Sam Henegan (Associate and Future of Transport lead, Commercial). The response involved collaboration across multiple teams in the firm and contributions from leading individuals including Phil Ryan (Partner, Regulatory); Jonathan Smart (Partner, Commercial Litigation); Sherif Malak (Partner, Privacy & Data); Phillip Tansley (Partner, Commercial Litigation (Cyber Security)); and Robin Webb (Partner and Mobility Sector Head, Commercial).

A summary of the key points made in Shoosmiths’ response to the consultation:

• The Commission proposed that specific Automated Driving Systems (the underlying technology enabling vehicle automation) would need regulatory approval before being allowed on British roads. Our response was that this seemed sensible, but any regulation would need to be absolutely clear on what level of automation should be classed as “ADS”. Otherwise, there is a risk that new regulations would ban existing road vehicles that already employ assistive driving technologies such as adaptive cruise control and lane assist.
• The Commission asked for views on whether a domestic scheme for ADS approvals should be implemented in the UK. Our response pointed to the fact that, as a right-hand-drive market, the UK is already an outlier. Having a local system of safety standards would be overly onerous on manufacturers and would stifle consumer choice. Rather, it would be more in line with the post-Brexit reality of vehicle importation for the UK to follow an international standard, subject to local derogations.
• The Commission proposed that, before putting their products on the market, ADS developers would need to prove that they have the necessary funds to (a) deal with any improvement notices, (b) pay fines, and (c) organise recalls. Our response was that this kind of hurdle would stymy development of new ADS technology by smaller, more innovative companies (the type of which we are seeing more frequently). And, in any case, this approach is completely at odds with current UK criminal legislation; which has no company size threshold as a pre-requisite for operating.
• The Commission asked for views on whether regulators should have the power to approve software and cybersecurity updates to autonomous vehicles. Our response was that, due to the complexities of cybersecurity issues, it would be hard to see how one regulator could oversee all aspects of autonomous vehicles. Rather, it might make more sense for the overarching regulator to work in close collaboration with other specialist government agencies, such as the National Cyber Security Centre.
• The Commission proposed that a regulator should have the power to determine which “roadworthiness failings” would be the responsibility of the driver. Our response on this was that it seemed like a good idea in principle; however, the concept of “roadworthiness” should not be limited to physical elements of the vehicle (e.g. tyres). Rather, it should also factor in the maintenance of up-to-date software, since this is an integral part of autonomous vehicle functionality. In any case, we advocated the view that these responsibilities should only sit with the driver where the requirement for such an update has been brought to their attention by either the manufacturer or onboard telematics.
• The Commission proposed that measures should be put in place to compensate the victims of accidents caused by uninsured autonomous vehicles. We agreed with the Commission’s proposal and added that the Motor Insurer’s Bureau compensation scheme would be sufficient where the accident was caused by an uninsured driver (e.g. when the vehicle is not in fully ‘autonomous’ mode). However, liability where an accident is caused by a fault with the autonomous vehicle itself may have to sit with the ADS entity.
• The Commission provisionally proposed that ADS would only be approved for use on British roads if they were to process certain location, telematics, and other data. Our response on this was that we believe it is important that ADS collects and preserves data to support accident investigation, certain law enforcement, and other potential public uses (such as monitoring road user behaviour / supporting decarbonisation). However, each of these interests should be balanced against drivers’ rights to privacy. At present, the UNECE position on data retention creates a potential inconsistency with the treatment of similar data collected on mobile phones, satnav, and telematics systems. We suggested that this could be managed by a combination of local storage of data (i.e. on a vehicle ‘black box’) and anonymised data collected by the manufacturer through FOTA.

The Commission is currently considering the responses to its consultation paper and is due to publish its final policy recommendations by Q4 of this year.

If you’re interested in learning more about what’s around the corner in the autonomous vehicle space, please get in touch with Robin Webb or Sam Henegan.