Autonomous Vehicles: The UK Law Commissions’ Third Consultation

February 25, 2021

Following its previous two consultations on automated vehicles (AVs) (see our previous blogs, Automated vehicles: Law Commission’s proposed reform and “the user-in-charge” and Automated and Electric Vehicles Act – preparing the UK for the biggest transport revolution in a century), the Law Commission of England & Wales and the Scottish Law Commission (together, the Commissions) have jointly launched their third consultation paper on the regulatory framework for automated vehicles. The Commissions’ consultation seems timely, given the recent announcements by BigTech and prominent automotive businesses of huge investments in, and in some cases, important developments of, self-driving technology.

As may be expected, the Commissions’ 392 page paper is wide-ranging and touches on many important factors affecting the introduction of AVs on UK roads. The consultation paper makes proposals and seeks view on (among other matters) the following key regulatory issues:


1. The definition of self-driving: The Commissions have provisionally proposed that, for a vehicle to be classified as “self-driving”, it must not require a human to monitor the driving environment while the automated driving system (ADS) is engaged, and the vehicle must be “safe enough” (see below) even if a human does not intervene (except in the case of a “clear and timely transition demand” to take control).

The Commissions recognise that a self-driving vehicle could require the user-in-charge to respond to a clear and timely transition demand, which (among other things) cuts out non-driving related screen use, provides clear visual, audio and haptic signals and allows sufficient time for the user-in-charge to gain situational awareness.

Our take: The emphasis on the AV being able to drive without a human monitoring the driving environment is vitally important as it links directly with the proposed amendments to the civil and criminal liability of a user-in-charge while the ADS is activated (see below).

The Commissions’ proposed definition of “self-driving” takes into account a body of literature on the time required for a user-in-charge to gain situational awareness and the sensory stimulation required successfully to alert a user-in-charge of a transition demand. A majority of respondents to the Commissions’ previous consultation papers agreed with the proposed definition of “self-driving”.


2. Safety standards applicable to AVs: The consultation paper considers what would be “safe enough” in the context of self-driving vehicles and explores the benefits and drawbacks of four different standards of safety:

• As safe as reasonably practicable;

• As safe as a competent and careful human driver;

• Does not cause a fault; and

• A positive risk balance (i.e. overall AVs being safer than an average human driver).

The consultation paper also explores a potential unfair allocation of risk with systems not being trained to deal with protected characteristics, such as wheelchairs/mobility scooters or non-white non-male pedestrians (who can be more at risk due to flaws in current facial recognition systems).

The Commissions propose that a blend of the four safety standards should be adopted, but ultimately consider that the decision on safety is one for the Secretary of State, given the political nature of the issue.

Our take: It is understandable that the Commissions view this issue as being political, rather than technical, in nature. The public’s perception and appetite for risk is key here. Safety of both pedestrians and other drivers will be at the forefront of many consumers’ minds. While they will expect that a higher level of safety will be demanded from AVs, there needs to be balance if AVs are to be practically viable.


3. Approval before deployment: The Commissions propose separate processes for the approval of an ADS and the categorisation of a vehicle as being safe enough to be considered self-driving. Noting the UK’s exit from the European Union, the consultation paper seeks views on the establishment of a UK domestic scheme to approve ADSs, while still giving manufactures the option to apply for an international approval under the United Nations Economic Commission of Europe (UNECE) scheme (which the UK continues to comply with).

Manufacturers of ADSs would be required to register with the regulator of the AV safety assurance scheme, which would be responsible for resolving issues where the ADS is at fault. (A specialist incident investigation unit is proposed to investigate serious collisions where ADSs are at fault.)

Our take: The motivation for the twin-track approach is that, while under the current UNECE scheme, an ADS approval can only be sought by the manufacturer who assembles the whole vehicle, under the proposed UK national scheme it would be possible for a developer (that is, someone not assembling the whole vehicle) to seek approval for an ADS at a national level (the ADS would be installed in a vehicle for testing).

The proposed UK national scheme would probably be of limited use when it comes to mass-market vehicles, as a manufacturer can get an international approval at the UNECE level, but the proposal could promote development of ADSs in the UK for use, for example, in logistics and local passenger transport.


4. Civil and criminal liability: As set out in their first consultation, the Commissions propose that a user-in-charge (i.e. someone qualified and fit to driver that is in the vehicle, or who has direct sight of it for the purposes of automated parking and summons features) would not be considered to be a driver while the ADS is engaged, and therefore would not be liable for any criminal or civil sanction. The user-in-charge would reassume full legal liability if it:

• Takes over driving from the ADS; or

• Fails to take control following a transition demand (see above).

Our take: The proposal leads to an obvious question: if the user-in-charge is not liable, who is? The Commissions have looked at how the law currently deals with other high-risk industries (such as aviation, nuclear and pharmaceuticals), and it sees merit in new criminal offences for situations where the ADS is at fault, which would target manufacturers of ADSs and their senior managers (where attributable to the manager’s consent, connivance or neglect).

For road traffic offences such as speeding, where it is found the ADS is at fault, the proposal is that it would be a matter for the safety regulator to investigate and impose sanctions if required.


5. Collection of and access to data: The Commissions raise concerns that the UNECE scheme does not require AVs to record location data. They view the recording of such data as being essential, and argue that, without location data, vehicles should not be classed as self-driving.

In relation to sharing of data, the Commissions propose that location data, along with data about when the ADS is activated, should be shared with police and regulatory authorities (e.g. special investigation units) and insurers (for the purposes of fair and accurate claims settlement). The provisional proposal is that ADS manufacturers should set out how they will record, store and protect location data prior to approval of an ADS.

Our take: Data privacy, particularly in relation to location data, will be a major concern for consumers. Location data is considered personal data under the GDPR, and may even fall within the special categories of personal data where such data may reveal (among other things) religious or philosophical beliefs, trade union membership or racial or ethnic origin.

The potential scope for misuse of location data is broad, and the possibility of hacking such data is not beyond the realms of possibility, given the increasing prevalence and sophistication of cyberattacks. Setting appropriate levels of data security and safeguarding measures to be demonstrated by manufacturers data prior to approval will be vital in reassuring the public that their personal information will not be used against them.


The Commissions are seeking responses on their proposal by 18 March 2021. The consultation paper can be found here: Automated Vehicles: Consultation Paper 3 - A regulatory framework for automated vehicles.