Automated Vehicles: Analysis of Responses to the Preliminary Consultation Paper
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Automated Vehicles: Analysis of Responses to the Preliminary Consultation Paper Analysis of Responses to LCCP No 240/SLCDP No 166 19 June 2019 © Crown copyright 2019 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 https://www.scotlawcom.gov.uk/publications/. Contents CHAPTER 1: INTRODUCTION 1 Who responded to the paper? 1 Key outcomes 3 Next steps 4 CHAPTER 2: OVERARCHING THEMES 5 Putting active travel first 5 Meeting the needs of people with disabilities 7 International standards 8 Connectivity 9 Managing data 10 The way forward 11 CHAPTER 3: THE HUMAN IN THE LOOP 13 Overview 13 The concept of a user-in-charge 14 The handover 19 Liability for interventions to mitigate the risk of an accident 21 The label of “user-in-charge” 24 A possible new offence of failing to avert a risk 26 Automated driving systems without a user-in-charge 29 Conditional automation and secondary activities 32 The way forward 37 CHAPTER 4: SAFETY ASSURANCE 40 Overview 40 A new safety assurance scheme 41 Prohibiting unauthorised systems 45 Powers to make special vehicles orders 47 Automated Driving System Entities 49 Self-certification and third-party testing 51 Working with local agencies 54 The way forward 56 CHAPTER 5: REGULATING SAFETY ON THE ROADS 58 Overview 58 A new organisational structure? 59 Safety assurance and driver assistance systems 66 Driver training 68 Accident investigation 73 Setting and monitoring a standard 78 A need to monitor advanced driver assistance systems 80 The challenges of monitoring accident rates 82 The way forward 84 CHAPTER 6: CIVIL LIABILITY 85 Overview 85 Contributory negligence under the AEV Act 86 Causation 88 Retaining data: should claimants be required to notify the police? 92 Product liability and software 98 Other issues with product liability 102 Other issues with the AEV Act 104 The way forward 106 CHAPTER 7: CRIMINAL LIABILITY 107 Overview 107 Offences incompatible with automated driving 108 The user-in-charge is not a driver 110 A new system of sanctions 112 A range of sanctions 117 Criminal responsibilities of the user-in-charge 120 A criminal offence of being carried without a user-in-charge 122 Insurance, roadworthiness and removing vehicles 123 Driving in a prohibited place 125 User-in-charge responsibilities following an accident, complying with directions and ensuring children wear seat-belts 126 What if there is no user-in-charge? 127 Death or serious injury caused by unlawful interference 130 Death or serious injury caused by developer wrongdoing 131 The way forward 134 CHAPTER 8: INTERFERING WITH AUTOMATED VEHICLES 135 Overview 135 Are new criminal offences needed? 136 Tampering with brakes or “other mechanisms” 139 Taking a conveyance without authority 140 Extending section 22A of the Road Traffic Act 1988 to Scotland 142 The way forward 143 CHAPTER 9: ADAPTING ROAD RULES 145 Overview 145 Collaboration to produce a digital highway code 146 Should automated vehicles mount the pavement? 151 Vehicles programmed never to mount the pavement 156 Exceeding speed limits within accepted tolerances 157 Edging through pedestrians 162 Auditing training data 165 Publishing ethics policies 168 Should the review consider any other issues? 173 The way forward 175 ABBREVIATIONS 178 ANNEX 1: RESPONDENTS 181 Chapter 1: Introduction 1.1 The Law Commission of England and Wales and the Scottish Law Commission are conducting a three-year review to prepare driving laws for self-driving vehicles. On 8 November 2018, we published our first Consultation Paper, which looked at issues of safety assurance and civil and criminal liability.1 We asked for responses by 18 February 2019. 1.2 We received 178 responses from a wide range of consultees. This document analyses those responses. At the end of each chapter we also briefly take stock of what consultees have told us and indicate the next steps of the project. 1.3 We are very grateful for all those who responded to our paper and discussed the issues with us. In all, we received over 2,600 pages of discussion, much of it extremely detailed and closely argued. 1.4 We use brief excerpts from the responses to give a flavour of the debate. However, with so much material to work with, we have often extracted only a few phrases or sentences from the full response. Many arguments have not been quoted at all. We are therefore publishing the responses in full on our website, and readers are referred to the original documents for more detail.2 WHO RESPONDED TO THE PAPER? 1.5 The pie chart below shows the variety of consultees who responded to the paper. (1) The four largest groups (each comprising between 15% and 18% of overall responses) were: developers and original equipment manufacturers (OEMs); legal professionals; individuals; and transport research groups, consultancies and professional organisations. (2) Safety and road user groups, academics and insurers each provided between 6% and 9% of the responses. (3) We also received responses from disability groups, emergency services and the police, local government, highways authorities and local representative groups and public-sector organisations. 1.6 All consultees are listed in Annex 1, with a brief description of who they are. 1 The first Consultation Paper and a summary of that paper are available at https://www.lawcom.gov.uk/project/automated-vehicles/. 2 Responses have been published in alphabetical order at https://www.lawcom.gov.uk/project/automated- vehicles/. 1 Respondents by category 9% 6% 15% 18% 2% 2% 4% 17% 5% 15% 7% academics OEMs and developers disability groups emergency services and police individuals insurance legal local government, highways authorities and representative groups public sector transport research, consultancy and professional organisations safety and road user groups 2 KEY OUTCOMES 1.7 The key outcomes of the consultation were: (1) Safety assurance scheme. There was strong support for establishing a safety assurance scheme to complement the current system of international type approval. This would apply to automated driving systems (ADSs) which are installed as modifications or manufactured in small series. The safety assurance scheme will also need to deal with driver training, software updates, continuing roadworthiness and the management of data. (2) Automated driving system entity (ADSE). We proposed that all ADSs put forward for authorisation would need to be backed by an entity that vouches for the safety of the ADS. If a faulty ADS causes an accident, the ADSE could be subject to a range of regulatory sanctions. Most respondents agreed with this. We will go into more detail on the precise role of the ADSE in the third Consultation Paper. (3) User-in-charge. We proposed a new role of "user-in-charge", who is not a driver while the ADS is engaged but would take over from an SAE Level 43 system in planned circumstances or after the vehicle has come to a stop. Most consultees agreed with this. Our current thinking is that remote operators will not be users- in-charge but will be subject to a separate regulatory regime. We will elaborate on this in our second Consultation Paper. (4) Conditional automation (SAE Level 3). Issues around conditional automation proved controversial. Around half thought there should be no relaxation of the laws against distracted driving in vehicles with SAE Level 3 systems. There were calls for a clear dividing line between driver assistance and automated driving. (5) Road accident investigation. There was a general consensus that the focus of accident investigation needs to shift from allocating blame to learning for the future to improve safety. In the short term, there is a need to provide the police with specialist help, both to investigate individual accidents and to analyse patterns of cases to identify root causes. (6) Criminal liability. We proposed that a user-in-charge would not be liable for breaches of driving rules “committed” while the ADS is engaged. Instead, if the problem appears to lie with the ADS, the police should refer the matter to a regulatory authority, who could apply a range of regulatory sanctions to the ADSE. There was widespread agreement with this approach. There was also support for a review of the law on corporate offences where wrongs by the developer of an ADS resulted in death or serious injury. (7) Automated and Electric Vehicles Act 2018. This Act requires insurers to pay compensation to victims where an automated vehicle causes damage. We asked whether it was necessary to clarify the provisions in the Act on contributory 3 “SAE Level” refers to the system of levels devised by the Society of Automotive Engineers. See https://www.sae.org/news/press-room/2018/12/sae-international-releases-updated-visual-chart-for-its- %E2%80%9Clevels-of-driving-automation%E2%80%9D-standard-for-self-driving-vehicles. 3 negligence, causation and data retention. Reforming the provisions on contributory negligence and causation is not a priority at present. However, clarity is needed on what data need be retained, by whom and for how long. (8) Product liability. The consultation showed a need to review the way product liability law applies to "pure" software, sold separately from any physical product. This is relevant to "over the air" software updates which add or modify driving automation features. Such a review should be done generally, not simply for automated vehicles. (9) Adapting road rules.