GOVERNMENT ANNOUNCES DRIVERLESS CARS TO BE ON UK ROADS BY END OF 2021

On 6 February 2019 the UK Government announced plans to move forward on advanced trials for automated vehicles. Whilst only limited scale trials of fully driverless cars have taken place to date in Europe and the United States, more extensive testing is expected on public roads in the UK by the end of the year. The Department for Transport (DfT) issued a statement confirming it is “on track to meet its commitment to have fully self-driving vehicles on UK roads by 2021”. This was accompanied by plans to strengthen the code of practice for testing automation safety.

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UK GOVERNMENT WANTS TO SEE FULLY DRIVERLESS CARS ON UK ROADS BY 2021

In its Budget on 22 November 2017, the UK Government predicted that the driverless car industry will be worth £28 billion to the UK economy and committed to establishing the UK as a world leader in the development and deployment of driverless car technology.  The Chancellor, Phillip Hammond MP, stated that the Government wants to see fully driverless cars – without a human operator – on the roads by 2021, and announced a number of regulatory changes and investment commitments to achieve this aim.

Regulatory changes

Driverless cars are already being tested on UK public roads.  However, under current rules, a licensed and suitably trained operator must supervise the vehicle at all times and be prepared, if necessary, to override the automated functions.  The Chancellor stated that the Government will make “world-leading changes” to the current regulatory framework, to allow driverless cars to be tested on UK public roads without a human safety operator on board.

The proposed changes will likely entail an amendment to the Road Traffic Act 1988 and would represent a significant shift away from the current regulatory framework.  It would also bring the UK’s position in line with certain parts of the United States, including Florida and Michigan, where driverless cars can be deployed without a human operator.

Investment commitments

Following the allocation of £100 million in the Autumn 2015 Budget for research and development into Intelligent Mobility, the Chancellor announced a range of further funding commitments aimed at enhancing the development of electric and driverless car technology and the systems required to implement and adopt that technology.  These included:

  • £5 million to trial 5G applications and its deployment on roads, including testing how to maximise future productivity benefits from driverless cars;
  • £200 million, to be matched by private investment, into a new £400 million Charging Investment Infrastructure Fund to support the transition to zero emission vehicles; and
  • £100 million to guarantee the continuation of the Plug-In Car Grant, to help consumers with the cost of purchasing a new battery electric vehicle.

In addition, the National Infrastructure Commission will launch a new prize to determine how future roadbuilding should adapt to support driverless cars.

Automated and Electric Vehicles Bill

At the same time, the Automated and Electric Vehicles Bill – which proposes to introduce an insurance framework for high level autonomous vehicles – continues its progress through Parliament.  It was considered in a Public Bill Committee and reported without amendment on 16 November, and will now move to be considered at Report Stage.

The Government has stated that it wants to create “the most advanced regulatory framework for driverless cars in the world.”  While that may still be some way off, the Bill, coupled with the commitments announced in the Budget, appear to be a step in the right direction.

UK GOVERNMENT ACCELERATES TOWARDS A REGULATORY FRAMEWORK FOR AUTONOMOUS VEHICLES

The UK government’s plans to establish a regulatory framework for autonomous vehicles have restarted with the introduction of the Automated and Electric Vehicles Bill to the House of Commons on 19 October 2017. The Bill is the successor to the earlier Vehicle Technology and Aviation Bill, which was scrapped when Parliament was dissolved due to general election earlier this year, and had its second reading on 23 October 2017.

The Bill proposes to extend compulsory car insurance to include autonomous vehicles. Under the draft legislation:

  • primary liability for an accident caused by an autonomous vehicle when in autonomous mode will sit with the insurer of the vehicle;
  • an injured party (which includes the human driver of the vehicle) will be able to claim compensation from the insurer in line with existing practices; and
  • the insurer has a statutory right to claim against any other person who was liable for the accident under existing common law and product liability laws.

By placing primary liability on insurers, the Bill aims to ensure that victims of an accident involving an autonomous vehicle are not left without compensation or forced to pursue complex product liability claims against vehicle and/or software manufacturers. The burden of pursuing such claims will instead fall upon insurers.

The Bill provides two exceptions to this single insurer model:

  1. Insurers and owners of automated vehicles will not be held liable where an accident is wholly due to the insured party’s negligence in allowing the vehicle to drive itself when it was inappropriate to do so.
  2. An insurance policy may exclude or limit an insurer’s liability for damage suffered by an insured person caused as a direct result of software alterations made by the insured person that are prohibited under the policy or failure to install safety-critical software updates.

While the Bill largely replicates the provisions of the earlier Vehicle Technology and Aviation Bill, the requirement that software updates must be “safety critical” represents a tightening of the grounds on which insurers may limit their liability to an insured person.

Another notable change is how autonomous vehicles are defined. As was the case in the previous Bill, the Secretary of State will maintain a list of all motor vehicles that are “designed or adapted to be capable, in at least some circumstances or situations, of safely driving themselves“. However, the definition of a vehicle “driving itself” is now “operating in a mode in which it is not being controlled, and does not need to be monitored, by an individual” – the emphasised wording was not included in the previous definition.

This change goes some way to addressing concerns that were raised regarding the scope of the previous Bill. In particular, it now seems clear that vehicles with level 4 and level 5 autonomous capabilities on the SAE International’s J3016 Standard will be covered, whereas vehicles with level 1 and level 2 capabilities (driving assistance or limited autonomous features) will not. However, the position in relation to level 3 vehicles continues to remain unclear.

Under the J3016 Standard, a level 3 vehicle performs the entire dynamic driving task – including monitoring the driving environment – but the human driver is required to intervene in the dynamic driving task if required by the vehicle. It is debatable whether the requirement for a human driver to intervene if required amounts to the vehicle being ‘controlled’ or ‘monitored’. Absent further clarification, this issue could result in significant satellite litigation.

The Automated and Electric Vehicles Bill is still at an early stage and we could see significant changes before it is ultimately enacted into law. Nonetheless, the Bill marks a significant step towards the UK Government’s aim of establishing a regulatory framework for autonomous vehicles in the UK.

Philip Pfeffer
Philip Pfeffer
Partner, London
+44 20 7466 2660
Anthony Dempster
Anthony Dempster
Partner, London
+44 20 7466 2340
James Allsop
James Allsop
Senior Associate, Tokyo
+81 3 5412 5409