Majestic irony?

“My ministers will ensure the United Kingdom is at the forefront of technology for new forms of transport, including autonomous and electric vehicles.” You may well wonder how the Queen could keep a straight face announcing this part of the Government’s legislative programme on Wednesday morning, shortly after having arrived at Westminster in a horse-drawn coach built in 1851 by the Lord Mayor of Dublin. Nevertheless, it is now clear that legislation to facilitate so-called driverless cars is to be brought forward in the current Parliamentary session.

One of the main points to tackle, in our view, is the legal status of the operator (perhaps better described as the ‘disengaged driver’) of the autonomous car. He or she can hardly be said to be driving or using the vehicle (“use” here in the sense of the Road Traffic Act (RTA) requirement to insure the use of vehicles).

If the vehicle causes an accident when running in autonomous mode, who is the defendant against whom an injured pedestrian (or anyone else) should bring a claim? The obvious candidates would appear to be either the manufacturer (or software house) or the disengaged driver. But if the latter is not “using” the vehicle in the RTA sense, where is the liability and where is the insurance cover? And if the manufacturer is going to be liable, will there be cover (probably product liability-based), that would meet the present RTA requirements of unlimited protection against personal injuries and £1m against property damage?

What are the rights of the ‘disengaged driver’? How is he or she to claim against either the manufacturer or – at a stretch – a policy which he or she has arranged and which covers this sort of event? Does this raise the question whether the law should include first party insurance and / or insurance of the vehicle, rather than the conventional insurance of the use of the vehicle against third party risks? Another key question is whether there should be a requirement for data about the operating mode of the vehicle at the time of the accident to be shared as part of the claims process?

In an earlier post this week on our policy blog I called this one wrongly, having suggested there that it was unlikely that the Government would push existing activity – such as its ongoing work on all the policy aspects of autonomous vehicles, launched before the 2015 General Election in the report The Pathway to Driverless Cars – into the Queen’s Speech.

That it has now done so clearly is to be welcomed and should mean that consultation about the questions above is now more likely to begin before the summer recess. If that is the case, I would expect a window of around 8 – 10 weeks for responses; which could take us very nearly into early October.

It seems that relevant legislation to deal with these issues will form part of the Modern Transport Bill. According to the detailed material accompanying the Queen’s Speech, this Bill will also include provisions setting a framework for drone operations and paving the way for commercial spaceplanes. In the short term, as it is hardly likely that either of those sorts of craft is going to transport any future monarch to the Palace of Westminster for the State Opening of Parliament, the role of the Irish State Coach in the ceremony looks secure. But the nature and extent of its insurance cover for use on roads or other public places is another matter entirely.

About the Author

akAlistair Kinley is BLM’s Director of Policy & Government Affairs.

Alistair is responsible for BLM’s engagement with government departments and regulators on policy and public affairs issues and consultations affecting the firm and its customers. He coordinated BLM’s market-facing activities in connection with the Insurance Act 2015 and the consultations which preceded its publication and introduction in Parliament.

He is a member of the Civil Justice Council (CJC), a regular speaker and experienced commentator on legal and procedural reforms and was a contributing editor to the Law Society’s Litigation Funding Handbook (September 2014).

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