In a previous blog, we discussed the recently published joint consultation by the Law Commission and the Scottish Law Commission on automated vehicles (which is seeking responses by 8 February 2019), and how it foresaw the new technology impacting on the existing rules of civil liability.  One of the most interesting aspects of the consultation is how it responds to a fundamental question posed by the rise of autonomous vehicles – when humans cease to be drivers of our cars, what exactly do we become, and where should the legal responsibilities lie if it all goes wrong? The joint law commissions propose to solve this dilemma by introducing an entirely novel concept into the law of Scotland, England & Wales: the “user in charge” (UIC).

When will the user in charge be relevant?

The UIC role would replace that of the driver, but the consultation makes it very clear that this would only be appropriate in very limited conditions: namely, where the vehicle in question is a so-called “highly automated vehicle”. This description covers a vehicle that operates within a specific operational design domain (ie. not all driving scenarios) for some or all of the journey, and that does not require human intervention to ensure road safety.

This excludes some other types of automated or quasi-automated vehicles:

  • *Vehicles with driver assistance systems, such as cruise control, lane assist or parking assist. Whilst these features (particularly when taken in combination) might give the impression that a vehicle is driving itself, in truth the human driver remains responsible for the driving task.
  • Conditionally automated vehicles, which require the human driver to remain “receptive” to requests to intervene which the driving system might issue – essentially, the driver must be able to take over the driving task at short notice to ensure road safety (which contrasts with a highly automated vehicle’s ability to autonomously reach a so-called “minimal risk condition”).
  • Fully automated vehicles, which would not have any capability for human driving whatsoever (ie. no steering wheel, pedals or other controls) - although this level of automation is perhaps some way from being licensed for road use.

So, what is a user in charge?

The key concept behind the role of the UIC is twofold.

They would not be a driver whilst the vehicle’s automated driving system was in operation. During that time, they could undertake secondary activities, such as using a phone, and would not be responsible for the task of actually driving the car – including any civil or criminal liabilities which may arise as a result of the way the car was driven (which would variously fall on the insurer and/or the manufacturer/operator of the automated driving system).

The UIC would, however, require to be capable of taking over the driving task – meaning they must have a valid driving license, and must be fit to drive (ie. not over the legal alcohol limit or under the influence of drugs). These responsibilities arise from the fact that the UIC could require to become a “driver” of the vehicle at some point during the journey, either in planned circumstances or as a result of the vehicle reaching minimal risk condition. An example given in the consultation is that, if highly automated driving systems were confined to use on motorways (as is envisaged in the initial period of their use), the UIC would require to drive to and from the motorway at each end of the journey.

The consultation paper also proposes that the UIC of a highly autonomous vehicle should be responsible for ongoing obligations to insure and maintain the vehicle. In the current regime for conventional vehicles, these responsibilities rest with the “user” of the vehicle, generally interpreted to mean the driver.

What next?

The role of the UIC is, at this stage, no more than a suggestion, and the joint law commissions are seeking responses on everything from the fundamental appropriateness of the new role to the best name for it. However, the consultation has made a very good stab at dealing with what is a fundamental and complicated question posed by the rise of autonomous vehicles.

The consultation can be found here, and responses to the questions it poses are sought by 8 February 2019. These will be used to assist the joint commissions in auditing the current law and scoping out key issues, with the project eventually aiming to provide recommendations for legislative reform by March 2021.