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Clifford Chance

Clifford Chance
Transport<br />


Talking Tech

Rollout of autonomous vehicles: UK government plans for a legislative framework

Transport Data Privacy Artificial Intelligence 18 November 2022

The UK government has announced plans to develop a new legislative framework to allow for the wider rollout of autonomous vehicles (AVs) on UK roads by 2025.

Backed by £100 million of public sector funding, and informed by a joint report by the Law Commission of England and Wales and the Scottish Law Commission on the law relating to AVs, the plans involve introducing new legislation to clarify responsibilities, a safety assurance framework, and new safety and cyber security assurance requirements and processes which would apply both at the AV test phase and once AVs are in use. We look at the legal proposals in more detail and the related ethical considerations raised by the Centre for Data Ethics and Innovation (CDEI) in its report on Responsible Innovation in Self-Driving Vehicles.

Plans for legislation

New legal actors

The government intends to introduce primary legislation on AVs as part of the Transport Bill in the current 2022-2023 parliamentary session. Secondary legislation and guidance is expected to emerge for consultation in 2023-2024, which will provide detailed requirements around the authorisation of AVs on UK roads, among other things.

The plans indicate that the government will create new legal actors in its primary legislation. While the details of these are subject to change in parliamentary debate, the following are noted:

  • User-in-Charge or "UiC": a human in the driving seat of an AV that can drive itself in certain circumstances (e.g. on motorways, or in good weather conditions). In these situations the human would not be responsible for an AV's behaviour, but would remain legally responsible for wider vehicle operations, such as insurance. They also must be qualified and fit to drive.
  • Authorised Self-Driving Entity or "ASDE": an entity, likely a manufacturer or software developer, who would put fully self-driving or partially self-driving AVs forward for authorisation as having self-driving features and be legally responsible for that AV's behaviour.
  • No User-in-Charge ("NUiC") Operator: an entity (public, private, or individual) responsible for the wider operations of an AV that can self-drive in all situations and is not fitted with standard driving controls. In other words, an NUiC would replace the UiC's responsibilities.

The plans raise important questions in relation to how liability will operate in practice, particularly as liability shifts from one entity to another in different circumstances.  For example, if a dangerous driving charge is committed when the AV is operating in self-driving mode, the plans indicate that the ASDE (e.g. AV manufacturer) would be responsible. However, if there was evidence that the UiC committed unauthorised tampering to the AV, such as taking active steps to override or alter the driving system, the UiC may be responsible. Data sharing with regulatory authorities and insurers will play a key role here, and the plans state that a failure to disclose, or a misleading disclosure of, safety-relevant information by the ASDE and operator could constitute a criminal offence.

Safety assurance framework

The government identified safety as a particularly important factor to garner public trust and acceptance of AV technology. For this reason, the plans focus on a new safety assurance framework, estimated to be developed for early use cases by 2023. This will include the development of processes around, among other things:

  • Approval - e.g. technical assessments of the AV and its features.
  • Authorisation - verifying that the vehicle can safely and legally drive itself in compliance with certain safety criteria, is vouched for by a registered ASDE, and licensed by a responsible operator.
  • In-use regulation - verifying that the vehicle continues to meet safety criteria while in-use on UK roads. This will involve collecting interpretable data from ASDEs / licensed operators.
  • Incident investigation - data from the in-use regulatory scheme will be fed back into the assurance process to identify areas for improvement. Data may be provided to a proposed government "Road Safety Investigation Branch" in the event of a specific incident or concern or the emergence of a particular trend in the data.

The government sought views in a consultation on its proposed "safety ambition" that AVs should be expected to achieve a safety standard equivalent to that of a competent and careful human driver, following recommendations from the Law Commission. The outcome of the consultation will inform the safety framework and the road worthiness standards that AVs and their manufacturers would be required to meet.

Responsible Innovation in Self-Driving Vehicles – is safety the only priority?

The CDEI report on "Responsible Innovation in Self-Driving Vehicles" highlights other key factors for the government to ensure the ethical deployment of AVs on UK roads. Among other things, the way in which AVs collect and process vast amounts of data raises data privacy issues, including:

  • AVs may process personal data in situations where explicit consent from the data subject is not feasible, such as detecting pedestrians / other road users outside the vehicle.
  • AVs are likely to process several categories of highly identifiable personal data, such as time-stamped geolocation data, and biometric data of the driver and other individuals, including facial images collected from video feeds.

The CDEI also notes that explainability of AV behaviour and decision-making processes will be a fundamental requirement, given the personal data being collected and the safety risks at play. This challenges AV manufacturers to advance capabilities for generating explanations for decisions made on the basis of machine learning, in order to ensure that they are as interpretable as possible.

Next steps

The plans outline an ambitious proposal and timeline for AV legislation in the UK. In the meantime, technological innovation and legislative harmonisation are key priorities. AV manufacturers will need to ensure that their marketing is clear and accurately explains the self-driving capability of their AVs – distinguishing between very good driving assistance features on the one hand, and genuine self-driving features on the other. They also need to prioritise innovations relating to how the AV communicates in self-driving mode, and how data is recorded, stored and shared with third parties, as these mechanisms will play key roles in managing their liability.

Legislation will need to align properly with other developing frameworks such as those relating to AI, e-privacy and data protection, currently under review in the UK. Further engagement between government, regulators, AV manufacturers, the insurance industry and other stakeholders will be paramount to the success of the technology and ensuring creation of a safe and coherent system for adoption.