The authors of The Law and Autonomous Vehicles peer into the near future to see what changes are necessary to car building regulations and the Highway Code as cars become increasingly less dependent on their drivers.
The UK’s legal and regulatory system is already one of the most welcoming for the development of autonomous vehicle technology. The intention is for the UK to remain at the forefront through a ‘rolling programme of reform that will keep our regulations up to date, ensuring we can safely take advantage of what automated vehicles can offer, tailored to near-to-market technologies’. The first fruit of this programme was the Automated and Electric Vehicles Act 2018. The Government has also issued several pieces of non-statutory guidance, notably the ‘The Pathway to driverless cars: a code of Practice for testing’ and ‘The key principles of vehicle cyber security for connected and automated vehicles’.
Most recently, in March 2018, the Government announced the start of a three-year project by the Law Commission of England and Wales and the Scottish Law Commission to undertake a far-reaching review of the UK’s legal framework for road-based autonomous vehicles. The commissions will be considering a wide variety of areas of law, ranging from road traffic legislation to product liability. They will also look at the use of autonomous vehicles as part of modern public transport networks and on-demand passenger services.1 The full report is anticipated to be released in March 2021 (for more see here).
There are certainly many areas which are ripe for reform in the near future, notably aspects of the Road Vehicle (Construction and Use) Regulations 1986 and of the Highway Code, which are dealt with in this article. Looking further forward, we may also see more radical changes to the regimes for insurance, civil and criminal liability, the driving test, the MOT and so on. These more speculative possibilities are dealt with in the book itself.
The Road Vehicle (Construction and Use) Regulations 1986
The Government is considering changes to the Road Vehicle (Construction and Use) Regulations 1986 to accommodate emerging technologies, notably remote-control parking.
Most relevant to remote-control parking are regulations 104, 107 and 110. Some changes have already been made. Regulation 110 was amended in June 2018 by the Road Vehicles (Construction and Use) (Amendment) Regulations 2018/592 regulation 2(2) to accommodate the use of remote-control parking technologies. Regulation 110 prohibits the use of hand-held mobile communication devices while driving, subject to limited exceptions for emergencies. The June 2018 amendment added an additional paragraph 5(a) to make clear that using a mobile device while outside the vehicle to perform a remote-control parking function was permissible:
(5a) a person does not contravene a provision of this regulation if, at the time of the alleged contravention—
(a) that person is using the mobile telephone or other device only to perform a remote-controlled parking function of the motor vehicle; and
(b) that mobile telephone or other device only enables the motor vehicle to move where the following conditions are satisfied—
(i) there is continuous activation of the remote-control application of the telephone or device by the driver;
(ii) the signal between the motor vehicle and the telephone or the motor vehicle and the device, as appropriate, is maintained; and
(iii) the distance between the motor vehicle and the telephone or the motor vehicle and the device, as appropriate, is not more than 6 metres.2
As to regulations 104 and 107, these have not yet been amended but may well be in the near future. The former provides that ‘no person shall drive or cause or permit any other person to drive, a motor vehicle on a road if he is in such a position that he cannot have proper control of the vehicle or have a full view of the road and traffic ahead.’ There is arguably some uncertainty as to how this would be applied in a remote-control parking context. This could readily be clarified by adding a statement that a driver meets this requirement even if he is not in the driving seat, as long as they have the ability to control the vehicle through a hand-held device. Similarly, regulation 107 requires that a driver must switch off the engine when not attending a vehicle. This could be clarified by adding a statement that an individual, though not in the driving seat, is deemed to be attending the vehicle when they are driving it, or are about to drive it, using a hand-held device (see the Consultation Response for more).
Also relevant to autonomous technologies generally is regulation 109, which provides that the driver must not be in a position to see (directly or by reflection) a television set or similar screen showing moving images, in order to prevent driver distraction. This is subject to exceptions which are related to the driving task, such as fuel levels, speed, satellite navigation, reversing cameras and so on. as automated technologies become more advanced to the stage where the driver need not pay attention to the driving task, it is possible that this regulation could be relaxed to allow the driver to watch advertising, films and so on. However, at present this is some way away.
The Highway Code
Similarly, there are a number of respects in which the Highway Code3 is beginning to fall behind emerging technology. The Department for Transport has consulted on amendments to Code rules 149, 150, 160 and 239.4 Such amendments will provide more detailed provision as to how features such as remote-control parking and motorway assist technologies can be safely used. It is planned for such amendments to be made in coordination with a wider series of amendments to the Code in Spring 2019 (see the Explanatory Memorandum).
Currently, the Highway Code provides at rule 149 that:
You must exercise proper control of your vehicle at all times. You must not use a hand-held mobile phone, or similar device, when driving or when supervising a learner driver, except to call 999 or 112 in a genuine emergency when it is unsafe or impractical to stop. Never use a hand-held microphone when driving. using hands-free equipment is also likely to distract your attention from the road. It is far safer not to use any telephone while you are driving or riding – find a safe place to stop first or use the voicemail facility and listen to messages later.
It is anticipated that the Government will amend this to accommodate remote-control parking, by adding a sentence to make clear that ‘you can park your vehicle via remote control, using a legally compliant parking application or device in an appropriate way which does not endanger others’ (see the 1.32-1.33 of the Proposal document).
Similarly, the Highway Code currently provides at rule 150 that:
There is a danger of driver distraction being caused by in-vehicle systems such as satellite navigation systems, congestion warning systems, PCs, multi-media, etc. You must exercise proper control of your vehicle at all times. Do not rely on driver assistance systems such as cruise control or lane departure warnings. They are available to assist but you should not reduce your concentration levels. Do not be distracted by maps or screen-based information (such as navigation or vehicle management systems) while driving or riding. If necessary, find a safe place to stop.
It is anticipated that the Government will update this by replacing the reference to ‘cruise control or lane departure warnings’ with a wider reference to ‘motorway assist, lane departure warnings, or remote control parking’, and by adding a sentence to make clear that ‘if you are using advanced driver assistance systems, like motorway assist, or a remote control parking application or device, then you as the driver are still responsible for the vehicle and must exercise full control over these systems at all times’ (see the 1.34-1.36 of the Proposal document). This is with a view to emphasising responsible use of such systems. as the technology evolves further and becomes sufficiently advanced that it does not require driver monitoring, it is possible that more substantially revised wording would be brought in (see 3.3 – 3.5 of Pathways to Driverless Cars paper).
As to rule 160, this currently provides, inter alia, that ‘once moving you should…drive with both hands on the wheel where possible. This will help you to remain in full control of the vehicle at all times.’ Drivers are increasingly using technologies which facilitate releasing their hold on the steering wheel for short periods, such as automated parking. Accordingly, it is anticipated that the government will add an additional sentence to make plain that ‘you may use advanced driver assistance systems, if used in accordance with the manufacturer’s or developer’s instructions’ (see 1.37-1.38 of the Remote Parking proposals).
Finally, the Government is also anticipated to amend rule 239, which sets out the driving behaviours expected of someone when parking their vehicle. It is proposed to amend this by adding additional wording dealing with remote-controlled parking as follows:
If you are using a handheld device to carry out a parking manoeuvre, then you must ensure that it is safe to do so before beginning the manoeuvre and should try to carry out the manoeuvre in the shortest, safest route possible. When parking, as the driver you must remain in control of the vehicle at all times; you must not use the device for other functions or in such a way that would cause danger to other road users. You should act in accordance with the manufacturer’s or developer’s instructions.(see 1.39 – 1.40)
Interestingly, the Government does not currently plan to amend rule 126, which provides that ‘you must drive at a speed that will allow you to stop well within the distance you can see to be clear. You should allow at least a two-second gap between you and the vehicle in front on roads carrying faster moving traffic and in tunnels where visibility is reduced.’ This provision is relevant to the possibility of ‘platooning’, namely the linking of two or more vehicles in convoy, using connectivity technology and automated driving support systems. These vehicles automatically maintain a set, close distance between each other and are able to accelerate or brake simultaneously. Platooning allows for a closer headway between vehicles by eliminating reacting distance needed for human reaction. The technology is anticipated to have substantial benefits, notably by way of vehicles in the slipstream using less fuel. To allow platooning to be a realistic commercial prospect in the UK, it would be necessary to relax rule 126 to allow a shorter gap between vehicles. however, at present there is understood to be little public appetite for this. (see 3.26 – 3.30 of the Pathways document)
1 The project will not cover drones or vehicles designed solely for use on pavements. it will also not address data protection and privacy, theft and cyber security, or land use policy.
2 These features reflect some of the requirements found in the United Nations Regulation no.79 (regulation ECE 79.02), which came into force on 10 October 2017. Regulation ECE 79.02 updates the international type approval standard for steering equipment, which introduces, for the first time, requirements for a remote-control parking function. Regulation ECE 79.02 is made under the agreement of the United Nations Economic Commission for Europe 1958 (revision 3) (‘UNECE 1958 agreement’).
3 The Highway Code is non-statutory but is relevant to legal liability. See section 38(7) of the Road Traffic Act 1988 to the effect that ‘a failure on the part of a person to observe a provision of the highway code shall not of itself render that person liable to criminal proceedings of any kind but any such failure may in any proceedings (whether civil or criminal, and including proceedings for an offence under the Traffic Acts, the Public Passenger Vehicles Act 1981 or sections 18 to 23 of the Transport Act 1985) be relied upon by any party to the proceedings as tending to establish or negative any liability which is in question in those proceedings’. see also Wakeling v McDonagh  EWHC 1201  (QB) in which Judge Mackie QC held that ‘any breach of the Highway Code is relevant but not determinative’, and Goad v Butcher  EWCA Civ 158,  in which Moore-Bick LJ held: ‘a failure to observe the Highway Code might be evidence of negligence causing or contributing to a road traffic accident, but whether it was would depend very much on the circumstances in which the question was committed and who the claimant was.’
4 To align with the amendment which was made to regulation 110 of the Road Vehicle (Construction and Use) Regulations 1986 in June 2018. see para above.
This is an edited extract from The Law and Autonomous Vehicles by Matthew Channon, Lucy McCormick and Kyriaki Noussa (Routledge, 2019). It is provided as a sample only and not for further distribution.
Dr Matthew Channon is a Lecturer in Law at the University of Exeter. He presents both nationally and internationally on the law and autonomous vehicles and motor insurance law. Matthew was awarded with an Association Internationale de Droit des Assurances Academic Prize in 2016. He has carried out extensive research in the subject and has contributed to written consultation responses in relation to both the House of Commons and House of Lords.
Lucy McCormick is a commercial barrister at Henderson Chambers. She undertakes a variety of product liability and property damage work, and lectures nationally and internationally on the legal issues arising from autonomous vehicles. Lucy was a finalist for the 2017 CogX Artificial Intelligence award for Industry Analysis.
Dr Kyriaki Noussia is a Senior Lecturer in Law at the University of Exeter. She has expertise on law and technology including insurance and cyber security issues for autonomous vehicles. At the 2018 AIDA World Congress she co-chaired the plenary session on 'New Technologies: Autonomous Vehicles and Robots, Cyber Risks'.