CAM 2025: THE SHAPE OF THE TRANSPORT BILL

“What safeguard remains? Apparently only day-to-day – or perhaps year-to-year – opportunistic measures, a long sequence of small, correct decisions.”

John von Neumann, Can We Survive Technology? (1955)

Results Day

The announcement, when it came, seemed carefully timed. On 19 August 2022 – the day after publication of the first post-pandemic A-level results – the government published its response to the Law Commissions’ recommendations for law reform to regulate automated (or, as the government preferred to call them, self-driving) vehicles.

The attention given by the media to the A-level results had been intense. During the weeks leading up to results day, newspapers had tweaked the already-frayed nerves of students, their families and friends.

The Law Commission of England and Wales and the Scottish Law Commission might have felt similarly tested.  For years, they too had studied intensely, perfected written work and received detailed feedback.  They too had waited years for results day.

The publication of the government’s verdict on the Law Commissions’ work, in its ‘Connected and Automated Mobility 2025’ paper (CAM 2025), on 19 August, was a success for the Law Commissions. Acceptance of some the recommendations had been indicated in the government’s brief description of its Transport Bill in the House of Lords on 11 May 2022, the day after the Bill’s announcement in the Queen’s Speech.  But CAM 2025 is the reasoned response, and it shows that the Law Commissions’ AV law project has aced its exams.

Now that team proceeds to the next level.  As the project lead lawyer Jessica Uguccioni put it, in a post on 19 August:

“This [CAM 2025] is exactly what we hoped for when we embarked on the AV Review in 2018, but in many ways it is only the beginning. Our AV team is now supporting developing provisions for the Transport Bill.” 

Relief and elation having passed – both among AV lawyers in general and no doubt within the Law Commissions – it is worth looking at the detail of CAM 2025. We have no draft of the Transport Bill yet, but in CAM 2025 we begin to see its shape.

CAM 2025 and what it reveals about the Transport Bill

In CAM 2025, the government “congratulates the Law Commissions on their work and welcomes their recommendations” (page 28).  A list of the Law Commissions’ 75 recommendations and the government’s comments appear in Annexes C and D of CAM 2025.

The government’s comments section in Annex D “does not take each recommendation individually, but this Annex identifies those recommendations on which government makes specific comment” (page 119). So the government’s position must be understood both from the body of the CAM 2025 paper and from Annex D.

The Law Commissions’ Recommendations accepted by Government

This is not a list of all the accepted recommendations, but of the main areas in which there appears to be consensus (see CAM 2025 for further detail).  In particular, the government appears to accept the Law Commissions’ proposals for:

– A “new ‘Automated Vehicles Act’ to ‘regulate automated vehicles on roads and other public places in Great Britain’, emphasising the need for uniformity across the country. We agree, and we seek to implement their recommendations in the forthcoming Transport Bill.” (page 119, Annex D).

– A new, “comprehensive” safety framework, based upon assuring the safety of a self-driving system both before and while it is in use on the roads” and a “continuous learning” culture, including the establishment of a Road Safety Investigation Branch (RSIB) and (although recommendation 18 is not expressly accepted by number, by implication from the responses below, and from the assumption of such a regulator in the recommendations of the Centre for Data Ethics and Innovation report, also of 19 August 2022, relied upon by the government) of an in-use AV safety regulator:

“The framework as a whole creates a safety feedback loop which provides for continuous learning throughout the life of a self-driving vehicle.” (page 34) “We agree with the Commissions that an in-use regulatory scheme must be established to ensure self-driving vehicles remain safe and legal throughout their lives and to collect evidence for the overall safety of self-driving compared to conventional driving.” (page 122, Annex D)

“As recommended in Recommendation 25, we intend to ensure the in-use regulatory scheme abides by the Regulators’ Code, subject to the Legislative and Regulatory Reform Act 2006, and will address this in more detail ahead of the scheme coming into force.” (response to recommendation 25, pages 122 to 123, Annex D)

– Organisational liability for self-driving vehicles:

“An ASDE [Authorised Self-Driving Entity] is the organisation that will be held responsible for a vehicle when it is driving itself. An ASDE will need to be registered, considering whether they are suitable to take on responsibility for a vehicle, such as having sufficient financial standing and good repute.” (page 37)

“We intend to set the following, broad duties on the ASDE:

• Ensuring that vehicles drive safely and legally throughout their life (which includes remaining compliant with their authorisation),
• Ensuring cybersecurity,
• Updating the safety case and any assessment of fairness,
• Providing data to the regulator,
• Communicating information to users, owners, and registered keepers,
• Continuing to meet ASDE requirements (such as financial standing and good repute),
• Processing data in compliance with data protection law,
• Collecting, storing, and sharing data to process insurance claims,
• Co-operation with government and other necessary parties.

The above, at page 121, is described as a “non-exhaustive list”, with a final list to be provided in the Transport Bill.

– A new system of pre-deployment approval of vehicles, which includes authorisation of any self-driving system (which will replace the listing of vehicles as “automated” by the Secretary of State for Transport under section 1 of the Automated and Electric Vehicles Act 2018):

“Government’s intention is to develop secondary legislation that will establish the detailed process by which an ASDE obtains authorisation for their vehicle(s)” (page 45)

“It must first meet appropriate technical safety standards, for example UNECE Regulations or GB vehicle type approval standards for automated vehicle technologies. It must then be ‘authorised’ to drive itself by government.” (page 42)

“Authorisation will also consider whether a suitable ASDE can vouch for the safety and lawfulness of the vehicle.” (page 37)

“The overall authorisation scheme, including an appeals process, will be subject to further consultation ahead of secondary legislation.” (page 122, Annex D)

“The Automated and Electric Vehicles Act 2018 has been a central focus of self-driving vehicle regulation since receiving Royal Assent in 2018. It laid the foundations for the new regulatory framework we seek to bring forward in the forthcoming Transport Bill. However, though it has lent its definition, in part, to the new scheme, it is now right that the authorisation decision replaces ‘listing’ …, which is more limited in scope. Any vehicles that have already been listed by the time the new framework is commenced will have time to convert to authorisation prior to the regime coming into force.” (page 126, Annex D)

– Authorising a vehicle to self-drive upon certain criteria, to be set out in published National Safety Principles (page 45). Those criteria will (the government writes) “build on existing work” carried out in relation to the Automated Lane Keeping System (ALKS) which has included the following, 5-part “monitoring test” (pages 37, 120):

“A vehicle must:

• Comply with relevant road traffic rules
• Avoid collisions which a competent and careful driver could avoid
• Treat other road users with reasonable consideration
• Avoid putting itself in a position where it would be the cause of a collision
• Recognise when it is operating outside of its operational design domain” (page 37)

– Immunity from liability for the driver (of a “User in Charge” or “UiC” self-driving vehicle) while the vehicle is driving itself:

“Self-driving features are designed to undertake all elements of the dynamic driving task and must be sufficiently capable that a human driver is not needed in order for the vehicle to behave safely and legally on the road when the feature is active under agreed conditions. If this bar is met, under our legislative proposals, the human driver would no longer be responsible for the vehicle’s behaviour whilst it is driving itself.” (page 40)

– Subjecting the conduct of a self-driving vehicle to the same standard of civil and criminal liability as would apply in law to a human driver:

“self-driving vehicles should be held to the same standard of behaviour as that expected of human drivers; competent and careful. This standard is higher than that of the average human driver – which includes, for example, drivers who are fatigued, distracted or under the influence of drink or drugs.” (page 35)

– Considering the effects of the use of self-driving vehicles upon driver training and licensing:

CAVPASS (the Connected and Automated Vehicles: Process for Assuring Safety and Security) will review “whether changes are needed to driver training and licensing, and whether further additions or changes to The Highway Code are necessary” (page 49)

– Legislating for misdescription of self-driving capabilities, by “making it an offence to market a vehicle as self-driving (or to use terminology that suggests self-driving) where that vehicle has not been authorised to drive itself.” (page 40). However, such criminal liability seems to be intended to apply only to marketing to consumers: the government “would not wish these new offences to apply to interactions between businesses. A business that will not use the vehicle, but may be intending to seek authorisation in the future, is not at risk of using a vehicle unsafely.” (page 123, Annex D).

– That measures are put in place with the Motor Insurers’ Bureau “for uninsured self-driving vehicles in time for the first self-driving vehicles being either listed or authorised (whichever comes first).” (page 126, Annex D)

And yet …

… there remain significant challenges.  Not least the environmental aspect, and the effect of CAM upon the number of vehicles on the roads.  While CAM 2025 asserts that “CAM must lead the transition to zero emissions” and that “walking, cycling and active travel must remain the best options for short urban journeys” (page 82), it also concedes that

“The ‘Connected and Automated Vehicle Decarbonisation Paradox Report’ identified five fundamental factors through which CAM may impact emissions, but concluded it was unclear whether the overall impact of CAM deployment on the UK’s total carbon emissions would be positive or negative without further research.” (page 94)

The detail of the in-use AV safety regulator’s powers (recommendations 19 to 28, discussed by the Law Commission in detail at pages 92 to 111 of the Law Commissions’ joint paper containing recommendations to government (Law Com No 404, Scots Law Com No 258, 25 January 2022)) will – unsurprisingly, given the issues and the number of government agencies involved – be subject to further consultation (CAM 2025, page 122 to 123, Annex D).

The Legislative Task Ahead

Drafting the Transport Bill is the next task. CAM 2025 allows us to sketch the early shape of the Bill.

It will be Parliament’s task to draw out the detail.  The Law Commissions’ help has been enlisted in drafting the Bill. Particular drafting tasks will include revisions to Construction and Use regulations and prescription of “the detailed process by which an ASDE obtains authorisation for their vehicle(s) and the process by which a NUiC [No User in Charge, i.e. fully-automated vehicle] operator receives a licence”: page 45). 

CAM 2025 states that the task of writing legislation will be informed by continuing work from CAVPASS, whose “team includes staff from across DfT and its Motoring Agencies (Vehicle Certification Agency, VCA; Driver and Vehicle Standards Agency, DVSA; and Driver and Vehicle Licensing Agency, DVLA) as well as from other government departments and their agencies including Innovate UK, National Cyber Security Centre, NCSC; and the Law Commissions” (page 46).

The Law Commissions’ AV law team has been recruited again.  That team seems never to have stopped working. The Law Commission of England and Wales’ current consultation on remote driving includes and extends to that topic many of the themes explored and developed during theLaw Commissions’ AV law project (2018 to 2022), including reform of the laws of testing new road vehicle technologies. CAM 2025 notes the importance of the Law Commissions’ work on remote driving to testing of new vehicle technologies (at pages 51 and 52).

Conclusion and Beginning

So the exam results season has gone well for the Law Commissions’ AV law team. With the publication of its high marks in CAM 2025, it is tempting to stretch the metaphor to say that the team is going to its first-choice university. As Jessica Uguccioni has said, in many ways this is a beginning.

The Law Commissions bring a fresh approach to regulation of road transport, in which regulation works to the principle that safety is alwaysmonitored during use, so that lessons are continuously learned.  That is an old idea, applied elegantly by the Law Commissions to the regulation of future driving technologies. 

So the Law Commissions’ AV law team will progress not only to the next stage of writing settled ideas into law, but beyond.  In 2018, the Law Commissioner Nicholas Paines QC introduced the first consultation paper of the AV law project by writing that

“This is the first time that either Law Commission has been asked to recommend how the law should be adapted to circumstances that (in the main) do not yet exist, but are in prospect. This requires us to anticipate what might happen.”

The better metaphor might be that the Law Commissions’ team are not going to university but establishing their own, advanced institution, to write far-seeing laws. That might be the truer measure – both of their achievements to date and of the challenges ahead.

Alex Glassbrook

Endnote

The image at the top of this article (reproduced with the kind permission of and with thanks to the Leo Baeck Institute, Call Number F 31361) is Paula Wright’s photograph of Albert Einstein with students at the Institute for Advanced Study at Princeton, which had opened in 1933. As well as Einstein, other founding professors of the IAS included the mathematician, computer scientist and polymath John von Neumann.  In his 1955 article “Can We Survive Technology?”, von Neumann wrote that miniaturised twentieth century electronics “put automation on an entirely different footing” than previously, and that “transportation developments are likely to accelerate even more” than nuclear technology. He warned of the “directly and truly worldwide” effects of global warming.  He concluded that “All experience shows that even smaller technological changes than those now in the cards profoundly transform political and social relationships … We can specify only the human qualities required: patience, flexibility, intelligence.”