By Mark Schaub and Atticus Zhao, Corporate & Commercial Group, King & Wood Mallesons

On April 28, 2021, the UK Department for Transport (the “DfT”) announced an open consultation for proposed changes to The High Way Code to pave the way to allow level three self-driving vehicles on UK roads by the end of 2021.

Level three automation includes Automated Lane Keeping System (the “ALKS”) and the proposed consultation supports the safe use of ALKS. ALKS enables the driver to hand control over to the vehicle to drive itself in a single lane, while the driver can in theory turn his/her mind to other things such as checking email or even watching a movie – until the car prompts the driver to re-take control.

The DfT intends to allow for vehicles fitted with ALKS technology to be legally defined as automation under the Automated and Electric Vehicles Act 2018 (the “AEVA 2018”). This is provided that the technology is approved in Great Britain and that there is no evidence challenging the vehicle’s ability to self-drive.

This announcement proposed the addition of a new section to The Highway Code to ensure the safe use of automated technology. This new section hopes to strike a balance between allowing a driver to delegate control to the self-driving car but also ensuring there is residual responsibility on the part of the driver when control is required to be returned.

1. Functions of Automated Vehicles

Automated vehicles are defined as vehicles listed by the Secretary of State for Transport. Such automated vehicles can perform all tasks involved in driving – at least under certain circumstances. In respect of vehicles fitted with assisted driving features (i.e. those which carry out some tasks) the driver MUST stay in control of the vehicle.

2. Driver’s Residual Responsibility

Drivers will not be responsible for how an automated vehicle drives when it is driving by itself. The driver is required to follow the manufacturer’s instructions as to when it is appropriate to engage the self-driving function. Furthermore, if the vehicle is designed to require the driver to resume driving upon being prompted to, while the vehicle is driving itself, then the driver MUST remain in a position to be able to take control. The driver is also still responsible for the vehicle to be in a roadworthy condition and insured.

The proposed new section of The Highway Code in conjunction with the AEVA 2018 will provide a clear view as to how a driver of an automated vehicle may be liable.

Looking at the two Acts together it is clear that they mark a major step towards the safe use of self-driving vehicles in the UK and promote the growth of the UK’s autonomous car sector.