Self-driving cars. Is artificial intelligence the new driver on our roads?

In January 2022, the Law Commission published its final report setting out its proposals for a new regulatory framework for self-driving vehicles. The recommendations included:

• Clarifying the meaning of self-driving in law
• Creating a two-stage approval and authorisation process for self-driving vehicles
• Creating new legal roles for users, manufacturers and service operators with a view to removing criminal responsibility from the person in the driver’s seat when the vehicle is in self-driving mode
• A new safety assurance scheme; and
• Holding manufacturers and service operators criminally responsible for misrepresentation or non-disclosure of safety-relevant information.

In July 2022, the Highway Code was updated to clarify that when a self-driving vehicle is in self-driving mode, the driver may turn their attention from the road but must “always be able and ready to take control” when prompted. This is not the case for more limited driver assistance systems where the drivers are required to exercise proper control at all times. The Government is still to put in place a clear distinction between driver assistance and self-driving technologies. Users of these vehicles must fully understand the capabilities and perhaps more importantly, the limitations of the technology.

Motorists in the UK could legally allow their cars to self-drive on motorways, but this will only be introduced gradually and with caution as a robust regulatory framework is required to ensure the safety of road users and pedestrians alike. In April 2023, the UK became the first European country to allow drivers to take their hands off the steering wheel on public roads. Whilst fully self-driving vehicles remain banned on public roads, vehicle manufacturer Ford was given permission to activate its BlueCruise system on motorways. BlueCruise is a driving assist feature, in Ford’s Mustang Mach E model, that allows the vehicle to steer and accelerate whilst continuing to monitor the driver’s attention to ensure their eyes remain on the road.

The Government, rightly so, is putting safety at the heart of the development of self-driving vehicles. There is huge potential that the technology could help to reduce road accidents and could provide better access to travel for those with mobility issues or elderly people in rural areas. They are also of the view that self-driving vehicles could eventually be extended to mass transit, including additional public transport service that is safe, has zero emission and is cost-effective. There are potential benefits too for commercial vehicle services such as taxis, HGVs and shuttle services.

However, there remains some uncertainty about the limitations of the technology in terms of the vehicles detecting and stopping if the vehicle is involved in a collision; navigating certain road layouts such as zebra crossings or complex junctions; and, how different vehicles with different technologies will interact together in the real world. The uncertainty makes it difficult for the insurance sector to put in place its own safeguards for when a self-driving vehicle malfunctions or is involved in a collision.

In particular, consideration has yet to be given to the consequences of uninsured self-driving vehicles which are involved in an accident as there may no longer be an avenue of recompense for an innocent victim.

Cyber security concerns

Cyber security is another concern.  The risks include ransomware attacks; the steering, braking and acceleration of the vehicle being hacked; and personal and sensitive information being vulnerable. It is suggested that the onus will be on the manufacturer/developer of self-driving vehicles to put safeguards in place and to keep the systems up to date. However, there will be an obligation on the user of the vehicle to download the updates and keep the vehicle security system to the required standard.

A strong regulatory framework will be required to provide certainty for innovators and investors and will help to build public confidence in the technology. Primary legislation should include considerations in respect of the vehicle approval and authorisation process, liability for accidents, cyber security and the use of personal data. Whilst there remains some degree of optimism that progress on the regulatory framework will continue given the brief mention of the subject in the King’s Speech on 7 November 2023, it seems that we will be anticipating progress for some time yet.