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Automated Vehicles A joint preliminary consultation paper Law Commission Scottish Law Commission Consultation Paper 240 Discussion Paper 166 Law Commission Consultation Paper No 240 Scottish Law Commission Discussion Paper No 166 Automated Vehicles A joint preliminary consultation paper 08 November 2018 © Crown copyright 2018 This publication is licensed under the terms of the Open Government Licence v3.0 except where otherwise stated. To view this licence, visit nationalarchives.gov.uk/doc/open- government-licence/version/3 Where we have identified any third party copyright information you will need to obtain permission from the copyright holders concerned. This publication is available at https://www.lawcom.gov.uk/project/automated-vehicles/ and at https://www.scotlawcom.gov.uk/publications. THE LAW COMMISSIONS – HOW WE CONSULT Topic of this consultation: The Centre for Connected and Automated Vehicles (CCAV) has asked the Law Commission of England and Wales and the Scottish Law Commission to examine options for regulating automated road vehicles. It is a three-year project, running from March 2018 to March 2021. This preliminary consultation paper focuses on the safety of passenger vehicles. Driving automation refers to a broad range of vehicle technologies. Examples range from widely-used technologies that assist human drivers (such as cruise control) to vehicles that drive themselves with no human intervention. We concentrate on automated driving systems which do not need human drivers for at least part of the journey. This paper looks at are three key themes. First, we consider how safety can be assured before and after automated driving systems are deployed. Secondly, we explore criminal and civil liability. Finally, we examine the need to adapt road rules for artificial intelligence. Comments may be sent: Using an online form at https://consult.justice.gov.uk/law-commission/automated-vehicles However, we are happy to accept comments in other formats. If you would like to a response form in word format, do email us to request one. Please send your response: By email to [email protected] OR By post to Automated Vehicles Team, Law Commission, 1st Floor, Tower, 52 Queen Anne’s Gate, London, SW1H 9AG. If you send your comments by post, it would be helpful if, whenever possible, you could also send them by email. Availability of materials: The consultation paper is available on our websites at https://www.lawcom.gov.uk/project/automated-vehicles/ and https://www.scotlawcom.gov.uk/publications We are committed to providing accessible publications. If you require this consultation paper to be made available in a different format please email [email protected] or call 020 3334 0200. Duration of the consultation: We invite responses from 8 November 2018 to 8 February 2019. After the consultation: The responses to this preliminary consultation will inform the next stages of this three-year project. The first review point will be in March 2019. i Geographical scope: This consultation paper applies to the laws of England, Wales and Scotland. Consultation Principles: The Law Commission follows the Consultation Principles set out by the Cabinet Office, which provide guidance on type and scale of consultation, duration, timing, accessibility and transparency. The Principles are available on the Cabinet Office website at: https://www.gov.uk/government/publications/consultation-principles-guidance. Information provided to the Law Commission: We may publish or disclose information you provide in response to Law Commission papers, including personal information. For example, we may publish an extract of your response in Law Commission publications, or publish the response in its entirety. We may also share any responses with Government and the Scottish Law Commission. Additionally, we may be required to disclose the information, such as in accordance with the Freedom of Information Act 2000 and the Freedom of Information (Scotland) Act 2002. If you want information that you provide to be treated as confidential please contact us first, but we cannot give an assurance that confidentiality can be maintained in all circumstances. An automatic disclaimer generated by your IT system will not be regarded as binding on the Law Commission. The Law Commission will process your personal data in accordance with the General Data Protection Regulation, which came into force in May 2018. Any queries about the contents of this Privacy Notice can be directed to: [email protected]. About the Law Commissions: The Law Commission and the Scottish Law Commission were set up by the Law Commissions Act 1965 for the purpose of promoting the reform of the law. The Law Commissioners are: The Hon Mr Justice Green, Chair, Professor Nick Hopkins, Stephen Lewis, Professor David Ormerod QC and Nicholas Paines QC. The Chief Executive is Phillip Golding. The Scottish Law Commissioners are: The Honourable Lord Pentland, Chairman, Kate Dowdalls QC, Caroline S Drummond, David E L Johnston QC, Dr Andrew J M Steven. The Chief Executive is Malcolm McMillan. ii Contents THE LAW COMMISSIONS – HOW WE CONSULT I LIST OF ABBREVIATIONS XI GLOSSARY XIII CHAPTER 1: INTRODUCTION 1 Background 2 Our terms of reference 2 Only road vehicles 2 What is an “automated vehicle”? 3 A focus on passenger transport 3 A regulatory framework which is fit for purpose 3 Areas outside the scope of this review 4 Introducing driving automation onto existing roads 5 Mobility as a Service 5 A three-year review 6 Devolution 6 International and EU law obligations 7 Key concepts 7 A vehicle which “drives itself” 7 A “user-in-charge” 8 The automated driving system entity 8 Structure of this Paper 8 Acknowledgements and thanks 10 The team working on the project 10 CHAPTER 2: INTRODUCING KEY CONCEPTS 11 SAE Levels of automation 11 Overview of the SAE levels 12 A focus on human-machine interactions 15 The ability to achieve a “minimal risk condition” 16 The “dynamic driving task” 17 The “operational design domain” 17 Safety by design and user responsibility 18 Features or systems? 19 “Automatically Commanded Steering Functions” 19 The challenges of “cumulative” automation features 20 iii Two development paths to automation 20 The international framework 22 Regulating driving under the Vienna Convention 23 The concept of a vehicle “driving itself” in the law of Great Britain 24 The concept of driving in the law of Great Britain 25 CHAPTER 3: HUMAN FACTORS 29 A driver’s legal obligations 30 Lessons from “human factors” research 31 Driver assistance systems 32 Conditional automation 34 Highly automated driving systems 35 A new role in driving automation: the “user-in-charge” 36 A vehicle that can “safely drive itself” 36 A “user-in-charge” 36 The role of a “user-in-charge” 38 Moving from human to system: new civil and criminal liabilities 39 The handover 39 Consultation Question 1. 41 The term “user-in-charge” 41 Consultation Question 2. 41 Should the user-in-charge be under any responsibility to avoid an accident? 41 Consultation Question 3. 43 When would a user-in-charge not be necessary? 43 Journeys supplied by licensed operators 44 Valet parking 45 “ADS-Dedicated vehicles” 46 Privately-owned vehicles 46 Conclusion 46 Consultation Question 4. 47 Consultation Question 5. 47 When should users be permitted to engage in secondary activities? 47 International discussions 47 Only if the system can achieve a minimal risk condition? 48 An example: traffic jam assist 49 The German approach 49 The United States: draft Uniform State Laws 50 Conclusion 51 Consultation Question 6. 51 Consultation Question 7. 51 A summary: human users and their roles 52 iv CHAPTER 4: REGULATING VEHICLE STANDARDS PRE-PLACEMENT 53 An outline of type approval 53 What is type approval? 53 Components, systems and whole vehicles 54 UNECE: the revised 1958 Agreement 55 The EU framework 56 Recent and forthcoming changes 57 Current standards for automated driving features 59 UN Regulation 79: Steering systems 59 Further revisions to UN Regulation 79 60 ACSF Categories and SAE levels 61 Defining a minimal risk condition 62 Testing new technologies 62 Approvals for new technology outside current standards 63 Type approval and the “something everywhere” path 65 Regulating the “everything somewhere” path 66 When type approval does not apply: modifications and small series 67 Construction and Use Regulations 67 Road tests with a safety driver: the code of practice 68 Road tests without a safety driver 70 The commercial deployment of automated driving systems 70 Provisional conclusion: a gap in safety regulation 72 A new safety assurance scheme 73 Prohibiting unauthorised automated driving systems 73 The role of the automated driving system entity (ADSE) 74 Other functions of the safety assurance scheme 74 Accreditation or third-party tests? 75 Ensuring local input 77 Consultation Question 8. 78 Consultation Question 9. 78 Consultation Question 10. 78 Consultation Question 11. 78 CHAPTER 5: REGULATING SAFETY ON THE ROADS 79 Regulating consumer information and marketing 80 Market surveillance and recalls 81 Market surveillance 81 Powers to recall or withdraw unsafe products 82 Recalls in practice 82 Implications 83 Roadworthiness tests 84 A new organisational structure? 84 Consultation Question 12. 85 Breaches of traffic law 85 Driver training 86 v The Vienna Convention on Road Traffic 1968 86 EU law: Third Driving Licence Directive 2006 87 Adding elements to the main driving test 88 Is additional
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