Driverless Cars - Regulatory traffic jam or full speed ahead?

Last year, I wrote an article on the then new Automated and Electric Vehicles Act 2018 (the “Act”). This Act was starting to build the regulatory framework which would support the development and ultimately deployment of driverless cars. The technology is constantly being developed with a number of testbeds over the UK. Many current cars even feature partial autonomous features such as automatic parking. Most recently, car and technology company, Tesla, has even announced that all its new cars will come with self-driving technology as standard.

This article considers how regulation is progressing and what applicable legislation there is to support widespread uptake of this new technology.

The Automated and Electric Vehicles Act 2018

The Automated and Electric Vehicles Act 2018 was finalised and received Royal Assent on 19 July 2018. However, the majority of the Act has not yet come into force. As the name suggests, this deals with two significant updates in technologies for cars; namely the automation of cars (driverless vehicles) and electric cars (vehicles powered by electric charging). This article focusses on updates on the former. With regards to automated cars, the Act provides some detail on liability and insurance. However, this is only an outline and it is expected that there will be secondary legislation made under this Act to fill in the blanks. Currently, this process does not appear to have started. If you would like to read in further detail of what this Act did cover, please read my original article available here.

So, what has happened in the last year? Well, the Law Commission has been reviewing the legislation to ensure that it is fit for purpose for these new and exciting (or some may think frightening) technologies. This is a three-year project running from 2018 to 2021 which includes three rounds of consultation. The Law Commission completed its first round of consultation in February 2019. This considered: how to ensure safety when using autonomous vehicles; how ongoing monitoring and maintenance requirements would work once cars were on the road; how liability of the vehicle if something went wrong (considering both criminal and civil law) would be dealt with; and how current road rules should be adapted for artificial intelligence. The consultation and the consultation responses can be found here.

The EU is also working on proposing new legislation that will improve general vehicle safety as well as consider safety features required in autonomous vehicles. The proposed legislation considers how these new safety rules will interact with pedestrians and cyclists and introduces requirements for a driver availability monitoring system which monitors whether a driver is in a fit state to take over an autonomous vehicle. However, whether these proposed rules will apply to the UK after Brexit is unknown.

Other Regulatory Mechanisms

Automated cars will use a wide range of technologies and are therefore subject to a number of other relevant regulations such as those set out below. 

• The Road Traffic Act 1988 - Most notably the Road Traffic Act 1988 will have to be drastically amended, if not completely updated. However, these amendments are yet to be seen (with amendments for Brexit taking precedence) and may depend somewhat on the Law Commission’s consultation.
  
  
• The General Data Protection Regulation/Data Protection Act 2018 (“GDPR”) – It is likely that a driverless car would need a huge amount of data in order to function autonomously. The car will have information on the name of its driver (or owner/passenger) along with current GPS and other location data. This personal data will need to be processed in accordance with the GDPR. 
  
  
• The Network and Information Systems Regulations 2018 (“NIS Regulations”) – The NIS Regulations, although not as widely known the GDPR, also came in to force around the same time and concern system security. They provide a legislative framework to ensure business continuity and legislation for protecting systems against cyber related incidents. These apply to both digital service providers (those who may be uploading and processing data for autonomous cars) and operators of essential services (including those in charge of critical infrastructure such as road transport). If you would like to know more about this legislation, a summary can be found in my article by clicking here.
  
  
• The Consumer Protection Act 2015 – Traditionally, car insurance protects against accidents where the driver is in control of the car. However, there may be no driver at all for an autonomous vehicle. The Autonomous and Electric Vehicles Act 2018 gives a broad outline as to insurance but there are conceivable situations that fall out of scope of the Act. Without further detail under the Autonomous and Electric Vehicles Act 2018, there may be several situations where the owner of the vehicle would currently be finding themselves turning to the Consumer Protection Act 2015.
  
  
• Health and Safety at Work etc Act 1974 – Where workers come in to contact with autonomous vehicles as part of their work, employers may be found to have liability to keep workers safe and therefore ensure the safety of their workers using these vehicles.

Alongside legislation, there are also several applicable standards and certifications in existence or being developed. Whilst not regulation per se, manufacturers, software developers and car designers may want to certify that their product meets certain standards or may be compelled to meet them as a minimum requirement under future delegated legislation. Examples of standards affecting autonomous cars include a cyber security standard, published by the British Standards Institute as well as international standards such as those being developed by the Institute of Electrical and Electronics Engineers.

Conclusions

There is still a long way for the regulatory landscape to go to cover all issues that will be raised by autonomous vehicles. In short, it is likely that autonomous vehicles will cross over in to new and unexpected areas of law and that constant technological development will require further regulation. However, there is at least some framework currently sitting in the background for developers and designers of autonomous cars to consider.

These notes have been prepared for the purpose of an article only. They should not be regarded as a substitute for taking legal advice.