This week, the Law Commission published its analysis of the responses to its consultation on autonomous vehicles and their use in passenger services and public transport (the "Report").
The publication of the Report is certainly timely, with COVID-19 seeing an increased focus on the role technology can play in reshaping our transport networks.
In this update, we set out the key points coming out of the Report and explain the next steps in the road towards the regulation of autonomous vehicles.
The Report focuses on "Highly Automated Road Passenger Services" or "HARPS", which the Law Commission defines as a new service that uses highly automated vehicles to supply road journeys to passengers without a human driver or user-in-charge. Vehicles used for such services would therefore be capable of travelling empty or with only passengers on board.
The Law Commission's aim with this consultation is to assist in designing a regulatory regime that will both facilitate the benefits (such as reduced congestion and on-street parking) and guard against the risks (such as inaccessibility to disabled and older people) posed by HARPS.
The Report does not cover freight-only services as this fell outside of the Law Commission's scope of work. However, the Report notes that this is likely to become a more pressing issue.
The current thinking is that HARPS cannot be shoehorned into existing categories of regulation, and neither would certain aspects of current regulation be appropriate (for example, the emphasis in taxi and private hire vehicle regulation on regulating drivers).
The Law Commission therefore proposed a new system to licence those who operate HARPS. This would be intended to ensure that the law is able to identify the person or organisation responsible for updating, insuring and maintaining the vehicles, as well as guarding against cyber-attacks for example.
89% of consultees agreed with the proposal that HARPS be subject to a new single national system of operator licensing and 95% agreed that there should also be a national scheme of basic safety standards for operating HARPS.
The Report acknowledges that devolution might present difficulties for such a framework (with England, Wales and Scotland able to establish separate schemes). However, the Law Commission's hope is that the three schemes will work together to ensure a harmonised approach and to allow vehicles to cross borders. Interestingly, the Report did not consider regulation in Northern Ireland on account of the "unique relationship between Northern Ireland and EU law."
The Law Commission envisages that the new legislation would set out broad duties with a power to issue statutory guidance. There was widespread support for this approach with 87% of consultees in agreement.
In terms of the specific content of the potential legislation:
- Scope – Most consultees (79%) agreed with the proposal to define a HARPS operator as any business that carries passengers for hire or reward using highly automated vehicles on a road without a human driver or a user-in-charge. However, following the consultation the Law Commission will consider extending this to on “a road or other public place”. Issues surrounding private ownership of vehicles are discussed further below.
- Duties of operators - Consultees agreed that HARPS operators should be obliged to maintain, insure and supervise vehicles and report collisions and other incidents. There was less consensus over how far HARPS operators should be obliged to safeguard passengers from assault, abuse and harassment by other passengers.
- Requirement of good repute - Under current legislation, those applying for standard operator licences must demonstrate that they are of good repute. Most respondents (77%) agreed that similar criteria should be included within the HARPS framework.
- Equality – There was overwhelming support for the idea that Section 29 of the Equality Act 2010 (which imposes duties on those providing services to the public not to discriminate and to make reasonable adjustments for people with disabilities) should be extended to HARPS operators.
Other tools to control congestion
The Report also addressed the concern that where the cost of driving is less than the cost of parking, HARPS vehicles will “cruise” the streets i.e. circle around empty between bookings, adding to congestion. The potential tools considered to tackle this issue were:
- Traffic Regulation Orders
- Prioritisation of kerbside access
- Road usage pricing
- Quantity restrictions
However, the Law Commission was less definitive on these potential tools and the Report generally suggests deferring to the relevant departmental bodies on these topics. Many of these tools were seen as controversial by respondents and so this may be an area to watch in particular.
Privately owned vehicles
The Law Commission questioned whether private individuals would be able to meet the technical challenges of updating software, guarding against cyber-attacks and removing vehicles from the side of the road.
It therefore provisionally proposed that registered keepers should have to contract with a licensed provider for supervision and maintenance services. These “licensed providers” would either be a HARPS operator or would be subject to similar licensing requirements. Most consultees (73%) agreed with this suggestion. However, the Report notes that due to concerns about the complexity of some of its proposals, this is an area that will be revisited in the next consultation.
The Law Commission intends to publish a third consultation paper later this year, bringing together proposals from its first consultation on safety assurance and its second on operator licensing. It will also consider outstanding issues, such as corporate liability and access to data.
The third consultation will also revisit HARPS' interplay with bus regulation and the possibility of statutory partnerships (to foster collaboration between HARPS operators and transport authorities).
A final report is then due in 2021, in which recommendations will be made for new legislation.