Commissions' self-driving regime removes driver fault

People at the wheel of authorised “self-driving” cars would no longer be responsible for how the car behaves when it is self-driving, under law reform proposals published today. Instead, the company or body that obtained the car's authorisation would be legally accountable.

The principle is contained in recommendations by the Law Commission of England & Wales and the Scottish Law Commission in their joint report on Automated Vehicles, which considers the safe and responsible introduction of self-driving vehicles.

The 314-page report, which was preceded by three consultation papers, calls for a clear distinction between cars that are truly self-driving and those with features which just assist drivers, such as adaptive cruise control.

It anticipates that features will develop to a point where an automated vehicle will be able to drive itself for at least part of a journey, without a human paying attention to the road. For example, a car may be able to drive itself on a motorway, or a shuttle bus may be able to navigate a particular route.

Such developments, the Commissions believe, would have profound legal consequences. The human driver could no longer be the "principal focus of accountability" for road safety. Instead, new systems of safety assurance will be needed, both before and after vehicles are allowed to drive themselves on roads and other public places.

How safe automated vehicles should be before they are authorised "is a political question, best taken by ministers". The Commissions recommend that a safety standard be published against which safety can be measured. As a minimum, automated vehicles should cause fewer deaths and injuries than human drivers in Britain. However, ministers may set a more demanding standard. The standard should also require that automated vehicles do not cause greater risks to identifiable groups of road users.

Under the proposals a new Automated Vehicles Act would regulate vehicles that can drive themselves. The proposed new system of legal accountability would mean:

• The person in the driving seat would no longer be a driver but a “user-in-charge”. A user-in-charge cannot be prosecuted for offences which arise directly from the driving task, whether dangerous driving, speeding or running a red light. However, they would retain other driver duties, such as carrying insurance, checking loads or ensuring that children wear seat belts.
• The entity that had the vehicle authorised (the ASDE, or Authorised Self-Driving Entity) would have responsibility: if the vehicle drives in a way which would be criminal or unsafe if performed by a human driver, an in-use regulator would work with the ASDE to ensure that the matter does not recur. Regulatory sanctions would also be available.
• If a vehicle was authorised to drive itself without anyone in the driver seat, instead of a user-in-charge, a licensed operator would be responsible for overseeing the journey. There would also be requirements for passenger services to be accessible, especially to older and disabled people.
• Self-driving would be compatible with a “transition demand”, requiring the person in the driving seat to take control. A vehicle should only be authorised as self-driving if it can recognise issues it cannot deal with and issue a transition demand. However, the transition would have to be clear, using vibrations as well as light and noise, and give the individual sufficient time to work out what was happening around them. The vehicle would also have to be able to mitigate the risk if a human failed to take over, by at least coming to a stop. 

The Commissions say they aim to promote "a no-blame safety culture that learns from mistakes". This would be best achieved through regulatory sanctions, rather than by replicating the criminal sanctions applying to human drivers. However, specific criminal offences would apply where misrepresentations and non-disclosure by approved bodies and operators have implications for safety.

Their recommendations build on reforms introduced by the Automated and Electric Vehicles Act 2018. That Act ensured that victims who suffer injury or damage from a vehicle that was driving itself will not need to prove that anyone was at fault. Instead, the insurer will compensate the victim directly.

The report also recommends safeguards to prevent driver assistance features from being marketed as self-driving. These are intended to minimise the risk of collisions caused by people thinking that they do not need to pay attention to the road while a driver assistance feature is in operation.

Nicholas Paines QC, Public Law Commissioner at the Law Commission for England & Wales, commented: “We have an unprecedented opportunity to promote public acceptance of automated vehicles with our recommendations on safety assurance, and clarify legal liability. We can also make sure accessibility, especially for older and disabled people, is prioritised from the outset.”

David Bartos, Scottish Law Commissioner added: “How should the law deal with self-driving technologies? Our joint report with the Law Commission sets out new laws for allowing automated vehicles on our roads, ensuring safety and accountability while encouraging innovation and development.”

The UK Government said it would fully considering the recommendations and respond in due course.

Click here to access the report and related papers.