Automated vehicles: Law Commission’s proposed reform and “the user-in-charge”
The most notable proposal to come out of the Law Commission’s recent consultation on autonomous vehicles is the creation of a “user-in-charge”. A user-in-charge would be obliged to take over control of an autonomous vehicle in certain circumstances. They would also bear criminal liabilities for offences which do not arise directly from driving, e.g. those relating to insurance, reporting accidents and ensuring children in the car wear seatbelts. All automated vehicles would have a user-in-charge in a position to operate the controls, unless specifically authorised to function without one. This poses questions as to whether the user-in-charge will be able to carry out secondary activities, such as checking mobile devices, and whether they are required to remain in the vehicle.
One challenge to this proposal lies in the definition of a user-in-charge: a person who is qualified and fit to drive. A key benefit of autonomous vehicles is that people who cannot drive due to age or disability will be able to use a vehicle unaided. If a user-in-charge is required at all times, a key consumer group for autonomous vehicles would be left unable to use them. It is also unclear whether the current standard driving licence is sufficient to be “qualified and fit to drive” an autonomous vehicle. The controls in an automated vehicle may differ to those in existing vehicles and additional training and testing may be needed. The consultation asks whether this training could be adequately provided on a voluntary basis or should be enforced formally.
In our previous blog post we examined the contributory negligence provisions for insurers and manufacturers brought in with the Automated and Electric Vehicles Act (AEV Act). This consultation looks at scenarios where the user-in-charge should be subject to specific criminal provisions such as being fit and qualified to drive. The consultation states that “fit to drive” means that the user must be in a state to take over control of the vehicle if needed and this includes complying with drug and alcohol limits; another possible benefit of autonomous vehicles limited by these proposals.
Most current road traffic laws and regulations that will need to be updated relate to the way a vehicle is driven, for example speeding and dangerous driving. The consultation recognises that when the automated driving system is engaged and conducting the entire dynamic driving task, complying with traffic law should not be the legal responsibility of the human user-in-charge. It therefore proposes that legislation be amended to clarify that a user-in-charge should not be considered a driver for purposes of criminal offences arising from the way that a vehicle is driven when in automated mode. This raises the question as to what entity should be responsible if something does go wrong and the vehicle carries out a manoeuvre which would amount to an offence. The consultation refers to the National Transport Commission in Australia’s recommendation that any automated driving system (ADS) should be backed by an automated driving system entity (ADSE). The Commission proposes a similar structure, stating that any manufacturer or developer wishing to gain regulatory approval for their ADS would need to stand behind the system as an ADSE. The ADSE would be subject to any regulatory sanctions necessary in the event of failures or infringements in the system causing an offence. This follows the AEV Act in putting the responsibility back on the manufacturers who created the system. If this proposal is carried forward, the Commission will need to take into account how software updates will be enforced to ensure the manufacturers are not wrongly held accountable if the software is not updated.
The consultation closed on the 18 February 2019 and the Law Commission will publish a final report and deliver its recommendations by March 2021.
The author would like to thank Aimee Denholm, Knowledge Paralegal, for her assistance in preparing this update.
To read more, visit our dedicated Autonomous Vehicles site - avtech.law
