Who’s really in control of getting driverless cars safely onto UK roads?

The UK government has been anticipating the imminent arrival of driverless cars for many years, but the technology is just one of the components needing further development before autonomous vehicles (AVs) appear on Britain’s roads. The reality of AVs hinges on developing a legal framework that underpins how they are safely and responsibly used.

The first hurdle will be assessing what the law requires from the ‘driver’. Before relinquishing control and becoming just a passenger, the driver will have to understand the limits of the systems they’re using. The artificial intelligence systems that will take over driving responsibilities have had years of training, during which cars equipped with sensors have been gathering data on traffic and the behaviour of road users. Now the time for updated driver training is approaching, and there is a question of whether this should form part of the UK driving test, or whether the obligation should fall on vehicle manufacturers.

For example, Rule 150 of The Highway Code currently states that the driver “must exercise proper control of [their] vehicle at all times”, which would not be the case when an AV is operating in a truly autonomous mode. To prepare drivers for this, the government would have to legislate for further training beyond the standard driving test, or reimagine the current criteria, making sure that existing drivers are not left behind.

New legislation will also need to account for the transfer of responsibility (and liability) away from the driver. If the AI is responsible for all driving actions, then an entirely new system for testing whether the AI is suitable for British roads will need to be developed and made achievable by the manufacturers who take on liability for accidents. For comparison, the European Aviation Safety Authority has set a maximum failure rate for pilotless electric ‘flying taxis’ of less than one per every billion flying hours. With the amount of traffic on the roads compared to in the sky, there’d be good reason to make the viability tests even more stringent.

Manufacturers may need to consider how they will prove their AVs can safely operate unaccompanied. Regulations regarding whether a vehicle can be left unattended are already being considered, with interest coming from industry about the autonomous transport of goods in completely passengerless vehicles.

If it is conceded that ‘proper control’ must be exercised over a vehicle at all times, there needs to be a framework in place that allows a human to regain control when necessary. Trials where an operator overseeing multiple vehicles intervenes have taken place, but unpack wider questions for the UK’s connectivity infrastructure if the operator, by law, must have an uninterrupted link to the vehicle at all times. This in turn asks difficult questions of manufacturers regarding cyber security, as a ‘hacked’ vehicle could be used for theft or weaponised at risk to the public.

It’s a lot to consider for the UK government, but elsewhere the enabling technology for AVs is guiding some of the new legislation. Automated lane-keeping systems (ALKS) can assume control of the vehicle from the driver within the relevant operating conditions. Current iterations of these systems are designed for motorway usage, but in a single lane and only travelling at up to 37mph. This speed-limited technology is designed for stop-start motorway traffic and is set to reduce vehicle emissions, prevent accidents due to human error and ease congestion.

ALKS technology is designed to keep the vehicle in a given lane, with the driver required to regain control for manoeuvres like changing to another lane, so some might disagree with the government’s labelling of this technology as autonomous. While drivers are intended to be able to perform non-driving activities during ALKS usage, they should be able to regain control of the vehicle (within 10 seconds according to current proposals) when requested through a transition demand. As such, ALKS technology can at least be considered as an enhanced driver-assistance system that, with the appropriate driver understanding of capability, is a step in the right direction for autonomous driving.

The UK government estimates that AVs will be approved on UK roads within the next year, and it will be exciting to see if 2023 is truly going to be the year that it finally happens.

Jon West is a senior associate at law firm Reddie & Grose.