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The Law Commissions’ final report on driverless cars proposes shifting liability away from the person in the driving seat…

31 January 2022

Following a three-stage project including safety assurance and legal liability and HARPS (looking at how automated vehicles could be used to improve public transport), the Law Commission and Scottish Law Commission have published their eagerly awaited report on autonomous vehicles.

The report recommends introducing a new Automated Vehicles Act, to regulate vehicles that can drive themselves. It recommends drawing a clear distinction between features that just provide assistance to drivers, such as adaptive cruise control, and those that are self-driving.

Under the Law Commissions’ proposals, when a car is authorised by a regulatory agency as having “self-driving features”, and those features are in use, the person in the driving seat would no longer be responsible for how the car drives. Instead, the manufacturer or other body that obtained the authorisation (an Authorised Self-Driving Entity or ASDE) would face regulatory sanctions if anything goes wrong.  

Many driver assistance features are currently available to help human drivers. The report anticipates that, in future, these 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.

Once a vehicle is authorised by a regulatory agency as having self-driving features, and a self-driving feature is engaged, the Law Commissions recommend a new system of legal accountability. This would mean that the person in the driving seat would no longer be a driver but a “user-in-charge”. A user-in-charge would not be prosecuted for offences that arise directly from the driving task. They would have immunity from a wide range of offences – from dangerous driving to exceeding the speed limit or running a red light. However, the user-in-charge would retain other driver duties, such as carrying insurance, checking loads or ensuring that children wear seat belts.

The ASDE that had the vehicle authorised would have responsibility for it.  If the vehicle drives in a way that would be criminal or unsafe if performed by a human driver, an in-use regulator would work with the ASDE to ensure that the error does not happen again.  Regulatory sanctions would also be available to the regulator.  

Some vehicles may be authorised to drive themselves without anyone in the driver seat. Here, any occupants of the vehicle would simply be passengers. Instead of having 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.

The Law Commissions’ recommendations build on the reforms introduced by the Automated and Electric Vehicles Act 2018. The 2018 Act aims to ensure 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 Law Commissions also recommend new safeguards to stop driver assistance features from being marketed as self-driving (watch out for new ASA rulings on this). This would help to minimise the risk of collisions caused by members of the public thinking that they do not need to pay attention to the road while a driver assistance feature is in operation.  

It will be for the UK, Scottish and Welsh Governments to decide whether to accept the Commissions’ recommendations and to introduce new legislation.  

This is a bold and forward-looking regime - the technology will naturally need to be fit for purpose and that, coupled with the necessary insurance premiums, is set to incur some significant cost for manufacturers.


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