In 2018 the Law Commission of England and Wales and the Scottish Law Commission launched a three-year review into the legal frameworks needed for the successful deployment of self-driving vehicles in the UK. In their first consultation, the Law Commissions explored issues of safety assurance and civil and criminal liability and we considered their analysis of the responses received in our previous article.
The Law Commissions have now issued their analysis of the 109 responses received to their second consultation paper on automated vehicle road passenger services where they proposed the concept of 'Highly Automated Road Passenger Services' or 'HARPS' – a new category of regulated public passenger transport.
When the HARPS consultation paper was issued in October 2019, the Law Commissions acknowledged that, notwithstanding the future impact of automated vehicles, the existing frameworks for public transport were potentially due for reform with some applicable legislation now dating back to the 19th century. If anything, with the government’s announcement of a consultation ahead of the creation of the UK’s first Transport Decarbonisation Plan and call for evidence under the Future of Transport Regulatory Review, the re-shaping of public transport appears to be gathering pace. In their summary of the responses to the HARPS consultation, the Law Commissions have even noted the potential impact of the current COVID-19 pandemic on the debate as the UK emerges from lockdown and into a phase of pandemic management.
Shifting sands aside, the Law Commissions have conducted a comprehensive analysis of a huge body of responses to the HARPS consultation, highlighting some key areas of consensus and areas for further exploration in the area of passenger transport by automated vehicle.
HARPS gathers momentum
Consultation responses demonstrated broad acceptance in principle and consensus for the concept of HARPS, a new regulated mode of public passenger transport under a national licensing framework, in particular given some of highly technical aspects likely to be associated with such vehicles and on operator requirements.
Whilst initial proposals had suggested a focus merely on services provided on roads, the Law Commissions have recognised concerns from consultees and will consider expanding the HARPS concept to services on 'roads or other public places'. This would extend the scope of permissible HARPS operation to include in particular 'pod' style operations (such as those in our partner project, Capri) that may operate at times and at low speed over surfaces not designated as road.
There was also broad consensus that HARPS regulation must be flexible and dynamic to take into account the variation across potential different types of HARPS vehicles and innovation in transport delivery models. 'One-size-fits-all' regulation is not the objective.
Work in progress
By contrast, a broader range of responses were received over more granular aspects of HARPS regulation, some of which the Law Commissions have indicated will need to be explored further and possibly carried forward into the third and final consultation paper in its review programme. Responses were less conclusive in particular on:
- Devolved and local authority powers and regulatory tools on HARPS alongside a national scheme
- Accessibility requirements for HARPS operators
- The potentially blurring distinction between privately-owned or leased automated passenger-only vehicles and HARPS operation and associated issues around 'exclusive use' and services 'for hire or reward'
- The extent to which emerging standards and requirements should be legislated for as opposed to driven by guidance and codes of practice
- The extent to which HARPS should be regulated in line with existing public transport modes where they may not be providing the same types of services
Our response to the consultation
Burges Salmon provided a comprehensive response to the Law Commissions’ HARPS consultation based both on our extensive experience with both automated vehicles and the existing legal framework on public transport regulation. Recognising the changing landscape of public transport and the emerging policy and vision on future mobility, it is important that any proposed regulatory framework for HARPS is not overly-constrained by existing public transport frameworks where it is not necessary. Regulated appropriately, HARPS has the potential to play its own role in a future mobility ecosystem to the benefit of public transport systems and priorities as whole. Whilst the technology emerges and new operational and commercial models are trialled and implemented, it is important not to stifle innovation. The balanced and considered approach of the Law Commissions and the responses that it has received reflects this need to regulate as well as enable.
Our response to the Law Commissions’ consultation is available in full here.
What’s next?
A third and final consultation will be published by the Law Commissions later this year, with the themes yet to be finalised but bringing together the themes of the previous two consultation proposals and outstanding issues. Indications from the Law Commissions’ analysis to date are that it will include, amongst other things, corporate liability and, in respect of HARPS, core safety requirements and data access and protection.
Upon conclusion of that final consultation, the Law Commissions aim to formulate recommendations and legislative proposals in 2021.
Burges Salmon’s involvement in CAV research and development
Burges Salmon has been actively partnering in Connected and Autonomous Vehicles (CAV) research and development projects and trials since 2014. These include the Innovate UK-funded projects VENTURER, FLOURISH, Capri, RoboPilot and MutiCAV. To date, we have published a number of joint insurance and legal reports in conjunction with AXA UK on CAV issues relating to insurance, safety, civil and criminal liability, data and cyber-security.
If you would like to know more about our involvement in CAV research or development or would like to discuss how we may be able to work with you, please contact Chris Jackson, Brian Wong or Lucy Pegler in our Transport Technology and Intelligent Mobility team.