Driverless car regulation. UK attempts to overtake rivals

Transcription

1 Driverless car regulatin UK attempts t vertake rivals March 2016

2 Intrductin In March 2016 the Chancellr annunced that driverless cars will be allwed n UK rads by the year 2020, in a sign that the gvernment cntinues t strngly supprt the technlgy. 1 The gvernment s annuncement fllws the increasing prminence f driverless cars in the media in recent years, with Gartner (a leading technlgy research and advisry cmpany) describing 2015 as the peak f the driverless car hype cycle, as the battle between established car manufacturers and technlgy cmpanies intensified t prduce driverless r fully autmated cars. 2 Ggle, perhaps mst famusly, has led the charge in the develpment f driverless cars, which are being heralded fr their ptential t imprve rad safety and reduce emissins and cngestin. At the end f 2014, Ggle unveiled its prttype 3 which it plans fr public sale in In Nvember 2015, Tesla annunced the release f its Autpilt sftware (an advanced cruise cntrl system) and aims t achieve full autmatin within three years. 5 In the same mnth Frd began testing its prttype n private rads 6 with the cmpany predicting driverless cars n public rads within five years. 7 In 2016 a number f ther majr car manufacturers (such as Tyta, Nissan-Renault, Audi and Vlv) each annunced their plans t intrduce driverless cars. 8 With leading technlgy cmpanies pineering driverless systems, and the cncept f driverless cars backed by established players in the autmtive industry, it seems likely that driverless cars (r at least ther advanced, new, driverless technlgies) will be publicly available within the next few years. Althugh the gvernment has annunced its aim t see driverless cars n the rads by 2020, have lawmakers and regulatrs mved quickly enugh t match the pace f innvatin? Respnse by regulatrs In February 2015 the UK s Department fr Transprt (DfT) published The Pathway t Driverless Cars (Summary reprt and actin plan) 9 setting ut the gvernment s plan t update UK laws and regulatins t permit the sale f driverless cars t the public. The gvernment s publicatin is a signal t the technlgy and autmtive industries that the UK welcmes the develpment f driverless technlgy and encurages car manufacturers t establish their testing and manufacturing peratins in the UK. The actin plan makes it clear t the relevant industries that the testing f driverless cars n public rads is lawful in the UK 10 - this sets it apart frm many ther cuntries in which driverless technlgy remains either prhibited (fr example in cuntries which are signed up t the Vienna Cnventin n Rad Traffic) r nt expressly apprved, as regulatrs struggle t determine whether they can be regulated under existing laws. The UK s effrts t mve 1 a html Real-wrld testing f autmated technlgies is pssible in the UK tday, prviding a test driver is present and takes respnsibility fr the safe peratin f the vehicle; and that the vehicle can be used cmpatibly with rad traffic law. kemplittle.cm kemplittlecnsulting.cm 2

3 quickly t establish itself as a centre fr driverless technlgy is, in part, a respnse t similar effrts by ther cuntries, such as the U.S., Japan (which has issued driverless cars with licence plates t allw testing n public rads since 2013) and, clser t hme, Germany 11, France 12 and Sweden 13, which have all publicly backed the technlgy. In February 2016, the US Natinal Highway Traffic Safety Administratin sftened its psitin n driverless cars by signalling that it is prepared t cnsidered nn-human drivers as drivers under the Federal Mtr Vehicle Safety Standards. Prir t this, a car withut a human driver had nt been cnsidered radwrthy. 14 The UK gvernment has been s keen t curt the driverless car industry that it cnfirmed the lawfulness f the testing f autmated cars n public rads in the Summary reprt and actin plan, mnths in advance f the release f The Pathway t Driverless Cars: A Cde f Practice fr testing. The Cde f Practice prescribes a rad safety framewrk under which such technlgy shuld be tested (the Cde ). 15 The UK gvernment, like many thers, is grappling with the challenge f drafting clear, binding regulatins fr autmated cars withut much visibility f the finished prduct which will eventually be ffered t the public. Hwever, it seems likely that the regulatins will clsely resemble sme f the aspects f Cde, as it addresses key issues such as rad wrthiness, insurance, and liability in the event f an accident. 16 Cde f Practice fr public testing The Cde emphasises the imprtance f safety n public rads and, prir t this, the testing f the technlgy n the test track. Althugh mst f the Cde is nt mandatry, instead setting ut new guidelines specific t driverless cars, it des require that driverless cars cmply existing rad traffic laws (such as thse cvering the licensing f drivers and the rad wrthiness f vehicles). Nnetheless, the Cde n its wn face suggests that cmpliance with all aspects f the Cde will be relevant t legal prceedings 17 - fr example, if a testing rganisatin can prve it has cmplied with the Cde it may be able t defend itself frm a negligence claim in the event that the driverless car is invlved in an accident. Further belw is a summary f the key principles in the Cde paragraph 1.5 kemplittle.cm kemplittlecnsulting.cm 3

4 General requirements Cmply with rad traffic laws: vehicles under test n public rads must bey all relevant rad traffic laws. Fr example the Cnstructin and Use Regulatins, which bradly require cars t be in a cnditin which shall nt present a danger t the public, specify certain mandatry design features (such as a windscreen 18 ) and require the persn driving the car t be able t have prper cntrl f the vehicle. 19 Furthermre, the respnsibility fr safe testing rests with the testing rganisatin and each such rganisatins must: ensure that the test driver hlds a driver s licence and has been adequately trained t perate the test vehicle cnduct risk analysis f the prpsed testing and plan risk management strategies in the event testing ges wrng r presents a danger cnsider the effects f testing n ther rad users, cnsider any adverse cnsequences which may arise as a cnsequence f the testing and address them. Insurance: the statutry requirements fr insurance apply t the testing f driverless cars and the perating rganisatin must ensure that its activities are cvered by its plicy. Infrastructure and transprt authrities: testing rganisatins shuld engage with transprt and highway authrities, particularly in the areas in which testing is t be carried ut. Such authrities may impse their wn restrictins r guidelines (fr example, by requiring ther rad users t be ntified f the testing by displaying rad signs in the area). Engagement: testing rganisatins shuld cnsider the benefits f develping a public relatins strategy t infrm the public f the nature f the testing, the benefits f driverless cars, the implicatins fr ther rad users and address any cncerns abut the risks presented by driverless cars. Test driver, peratr and assistant requirements Licence: during testing a licensed and trained persn shuld supervise testing at all times and be capable f verriding the autmated peratin f the car if necessary. The driver must hld the apprpriate categry f driving licence fr the vehicle being tested n a public rad. Training: test drivers require skills beynd thse f drivers f cnventinal vehicles as well as a thrugh understanding f the capabilities and limitatins f the technlgy. Test drivers shuld have trained specifically fr the mment that the car transitins between driverless cntrl and manual cntrl, particularly as the need t assume manual cntrl may arise in an emergency situatin. 18 The Rad Vehicles (Cnstructin and Use) Regulatins 1986, Regulatin 30(1), 19 The Rad Vehicles (Cnstructin and Use) Regulatins 1986, Regulatin 104, kemplittle.cm kemplittlecnsulting.cm 4

5 Vehicle requirements Technlgy: the vehicles must be radwrthy and the testing rganisatin must ensure that vehicles under test n public rads are capable f being tested in such a way that cmplies with UK rad traffic law. The driverless cars must have successfully cmpleted in-huse tests prir t being tested n public rads. Data recrding: vehicle sensrs shuld be sufficiently develped t be capable f respnding t all types f rad user. The car shuld be fitted with data recrding devices which capture sme key pieces f perfrmance infrmatin (including its speed, the prximity f ther rad users and whether the car is perating in manual r autmated mde).the data must be stred securely and accessible t the relevant authrities n request. It is nt a requirement that cars must be fitted with audi and vide recrding equipment althugh this may be desired by the testing rganisatin. Data prtectin: testing is likely t invlve the cllectin f persnal data (as defined under the Data Prtectin Act 1998), such as the behaviur and lcatin f test drivers and ther rad users. The prcessing f such data must be cmpliant with the relevant law - fr example, it must be used fairly and lawfully, kept securely and retained nly fr as lng as is necessary. 20 The DfT recmmends that the testing rganisatin carries ut a privacy impact assessment. 21 Cybersecurity: driverless vehicle manufacturers shuld ensure that the autmated systems have apprpriate levels f security built int them (fr example addressing the security principles in BSI PAS754 cncerning sftware trustwrthiness 22 ) and they shuld manage any risks which may arise as a result f unauthrised access. Transitin between autmated and manual mdes: the system used t transitin between autmated and manual cntrl shuld: be easily and clearly understd by the test driver ensure that the driver is given clear indicatin f which mde the car is perating in ensure the driver is given sufficient warning f when manual cntrl becmes necessary allw the driver t quickly and easily retake cntrl f the vehicle be prven during track testing prir t testing n public rads. Failure warning: if there is a failure in the autmated driving systems the test driver shuld be made aware f the failure by an audible warning. The driverless car shuld be designed s that in the event f a failure in autmated braking r steering, manual braking and steering remain pssible. 20 The data prtectin principles, Part 1, Schedule 1, Data Prtectin Act 1998, 21 Infrmatin Cmmissiner s Office, rt_n_prgress_and_frward_plans_-_de.pdf kemplittle.cm kemplittlecnsulting.cm 5

6 Sftware level: autmated driving systems will rely n peratin and interactin f sftware which may, frm t time, be updated. Sftware shuld be tested during simulatin and n clsed test tracks prir t being tested n public rads. Any rganisatin intending t test driverless cars n public rads shuld understand the requirements and guidance set ut in the Cde. The DfT indicates in The Pathway t Driverless Cars: summary reprt and actin plan that it wuld update UK regulatins t accmmdate driverless cars by the summer f and it seems likely that the key principles f the Cde will infrm the new regulatins. The DfT has set itself targets t cnsider, including (i) whether existing legislatin adequately cvers hw liability between manufacturer and driver may be apprtined; (ii) licence requirements fr fully driverless car peratrs; (iii) whether the sftware which perates the driverless system shuld be subject t a specificatin; (iv) the standardisatin f the system fr the driver t take cntrl in an autmated vehicle; and (v) a mre general review f the adequacy f existing laws and regulatins and whether The Highway Cde shuld be updated t accmmdate driverless cars. The Future Gartner has made ptimistic predictins abut the future f driverless technlgy, but has als warned that mainstream media cverage f the industry has led t unrealistic and premature expectatins, pinting t the sizable technlgical gap between autmated technlgy (where technlgy assists a driver) and fully autnmus vehicles. 24 Fr example, the requirements in the Cde that driverless cars must in any event be capable f being cntrlled by the ccupant may mean that the design f driverless cars will very clsely resemble thse in use tday, bth in frm and specificatin. Gartner further predicts that cybersecurity may becme the number ne cncern cnnected t driverless technlgy and is ne example f an issue which has nly just begun t be cnsidered by regulatrs. 25 The rapid and simultaneus develpment f the technlgy and the regulatins presents challenges fr legislatrs and car manufacturers alike, particularly given the gvernment s stated deadline fr the finalisatin f new regulatins by Such is the pace f innvatin, there will be further twists and turns t navigate kemplittle.cm kemplittlecnsulting.cm 6

7 Fr mre infrmatin please cntact: Calum Murray Head f Cmmercial Technlgy +44 (0) calum.murray@kemplittle.cm James Bellamy Assciate, Cmmercial +44 (0) james.bellamy@kemplittle.cm Kemp Little LLP All rights reserved. This publicatin may nt be reprduced r transmitted by electrnic r ther means withut the prir cnsent f the cpyright wner. Applicatins fr the cpyright wner s permissin t reprduce any part f this publicatin shuld be addressed t Kemp Little LLP. The infrmatin and pinins cntained in this guide are nt intended t be a cmprehensive study, nr t prvide legal advice, and shuld nt be relied n r treated as a substitute fr specific advice cncerning individual situatins. Kemp Little LLP is a limited liability partnership. Registered number OC England Registered ffice as shw kemplittle.cm kemplittlecnsulting.cm 7