The UK’s Automated Vehicles Act 2024: A Comprehensive Overview
On 20 May 2024 the UK’s Automated Vehicles Act 2024 (“the AVA 2024”) received royal assent. In this article, Scarlett Milligan of 39 Essex Chambers explains the key functions of the AVA 2024 and what the future holds for automated or ‘driverless’ vehicles on the roads of Great Britain.
The Road Travelled So Far: Where Were We Before the AVA 2024?
A comprehensive legal framework governing the use and regulation of automated vehicles (“AVs”) has been some time in the making. In 2016, the UK’s Centre for Connected and Autonomous Vehicles consulted on the challenges that AVs were likely to pose to the UK’s existing vehicle safety and road traffic rules and regulations. The Government response to the consultation, dated January 2017, set out that the UK intended to take “a step-by-step approach, and regulating in waves of reform”.
The first wave arrived in 2018, with the passing of the Automated and Electric Vehicle Act 2018 (“the AEVA”), which provided for insurers of automated vehicles to be directly liable to those who suffered losses because of an accident caused by an automated vehicle when driving itself on a road or other public place (under s.2 AEVA), with insurers able to reduce their outlay for contributory negligence of the claimant (s.3 AEVA) and/or recoup their outlay as against those that are responsible for the accident (s.5 AEVA). Those provisions of the AEVA came into force on 21 April 2021.
Beyond providing for a direct cause of action against AV insurers, the AEVA did not actually change the law that governed whether and when a driver (or ‘user in charge’), manufacturer, or other party might be liable for an accident involving an AV.
Between 2018 and 2021 no further waves of reform came, but the Law Commission published three consultation papers concerning all manner of AV-related matters. The Law Commission’s final report was published on 26 January 2022. Its comprehensive recommendations formed the basis of the AVA 2024, which began its life as a bill in the House of Lords in November 2023.
The AVA 2024 Explained: 10 Key Concepts
In the grand scheme of ‘waves’ of reform, the AVA 2024 is a big one: extending to 100 sections and six schedules, the AVA 2024 is a comprehensive framework for the regulation and roll-out of AVs in the UK. There are ten key features or concepts of the AVA 2024 that those interested in the development and roll out of AVs in this country – as well as those who practice in personal injury and/or product liability – need to be aware of.
1. A new system of approval and authorisation for AVs
Vehicles will need to be authorised and licensed for autonomous use in accordance with a procedure set out in forthcoming regulations (ss.11 and 13). The authorisation regime will apply whether the vehicle is fully autonomous or has discrete autonomous features (such as a self-parking mode) only. In addition to the AVA 2024 authorisation procedures, AVs will be subject to the well-established type approval process, which will be updated to include AV-specific standards under s.91 of AVA 2024.
The AVA 2024 will make it a criminal offence for false or misleading information to be given – or for relevant information to be withheld by – responsible organisations in support of an application for authorisation, or in respect of other information gathering provisions in the act (see ss.24-27 AVA 2024).
2. AVs are to achieve a level of safety that is equivalent to, or higher than, careful and competent human drivers
To be authorised under AVA 2024, AVs will need to be authorised under s.3 as having satisfied the self-driving test, defined under s.1(2) AVA 2024 as meaning that:
“(a) it is designed or adapted with the intention that a feature of the vehicle will allow it to travel autonomously, and
(b) it is capable of doing so, by means of that feature, safely and legally”
It is also likely that authorisation requirements will be contained within regulations made under section 5 of AVA 2024. Those requirements, and the general authorisations under s.3, will be informed by statutory guidance (a “statement of safety principles”) that s.2 AVA 2024 mandates must be prepared and laid before Parliament by the Secretary of State.
This statutory guidance will be at the heart of the new regulatory framework. Section 2(3)-(4) AVA 2024 requires the Secretary of State to consult “such representative organisations [in relation to the interests of relevant businesses, road users, and the cause of road safety] as the Secretary of State thinks fit” on the content of the guidance.
Those principles are, ultimately, required to prioritise the safety of AV use, with s.2(2) AVA 2024 mandating that the principles “must be framed with a view to securing that-
(a) authorised automated vehicles will achieve a level of safety equivalent to, or higher than, that of careful and competent human drivers, and
(b) road safety in Great Britain will be better as a result of the use of authorised automated vehicles on roads than it would otherwise be.”
3. There will be clear boundaries of automation
Where an AV is authorised under s.3, the authorisation must clearly identify the feature(s) that the Secretary of State has determined satisfy the self-driving test (s.4 AVA 2024). In respect of each feature that satisfies the self-driving test, the Secretary of State’s authorisation must specify:
“(a) whether the mode of operation of the feature is "user-in-charge" or "no-user-in-charge",
(b) how the feature is engaged and disengaged, and
(c) the locations and circumstances by reference to which (in the opinion of the Secretary of State) the vehicle satisfies the self-driving test by virtue of the feature.”
An authorisation should, therefore, make clear to users in charge what an AV’s automated capabilities are, the limits of those capabilities, how to engage and disengage them (including the relevant ‘transition demand’, by which the vehicle will request the user in charge to assume control of the AV) and where the feature can be used (whether by reference to situations such as parking, road types such as motorways, or geographical locations, for example, where the road infrastructure enables data to be provided to the AV).
4. Clear transitions between automation and human control
Where AVs require control to be handed back to the user in charge, the Secretary of State must impose authorisation requirements that are designed to secure the requirements set out in s.7(3), namely:
“(a) the transition demand will be capable of being perceived by anyone who might legally be a user-in-charge of the vehicle (having regard in particular to users-in-charge with disabilities),
(b) the transition period will be long enough for the user-in-charge to prepare to assume, and assume, control of the vehicle,
(c) the vehicle will continue to travel autonomously, safely and legally during the transition period,
(d) equipment of the vehicle will make a further communication at the end of the transition period to alert the user-in-charge to the ending of the period, and
(e) the vehicle will deal safely with a situation where the user-in-charge fails to assume control by the end of the transition period.”
As commentary on AVs has repeatedly explained in the years since the AEVA 2018, one of the most concerning aspects of AV use for road safety is the interplay between automation and human control: in a situation where the user in charge is not actively engaged in and controlling the driving task, their awareness and ability to re-take control of the AV safely is compromised.
The regulation of the transition demand and the transition period under s.7 AVA 2024 seeks to minimise and mitigate the most dangerous aspects of these transitions (where, for example, an AV encounters an unknown road environment, or is otherwise unable to continue the driving task, and hands over control to the user in charge at short notice). Instead, authorisation requirements will limit transitions to well-defined and safe situations, where an AV will be able to control itself safely in the event that a user in charge fails to re-take control. In practice, this is likely to require AVs to operate to an extremely high standard and level of automation before being authorised for automation.
5. Clear bounds of liability for an AV’s automated functioning
The clear delineation as between a vehicle’s automated driving and that of its user in charge is reflected in, and gives the benefit of, clear lines of liability: where an authorised automated feature is engaged, the user in charge will not held responsible – whether for criminal offences or in civil law – for the actions of the AV (ss.47-49).
The user in charge is, however, still responsible for remaining in a position and state to control the AV further to a transition demand and will be responsible for any acts amounting to criminal offences or giving rise to civil liability once the transition period has ended, unless those acts arise from the AV behaving unpredictably and in breach of the authorisation requirements concerning transition made under s.7 AVA 2024.
In this sense, the AVA 2024 promotes a system where automated features can be relied on as automated, as opposed to a ‘halfway house’ whereby users in charge are expected to scrutinise and intervene in an AV’s driving. This, combined with the type approval and authorisation requirements explained above, results in the system of regulation under the AVA 2024 intending to authorise only truly ‘automated’ features of AVs.
6. When ‘driverless’ really means ‘driverless’: restrictions on marketing
A regime that places criminal and civil liability on the AV when operating an automated feature requires there to be clarity as to what an AV can and cannot do in its automated capacity. In addition to the requirement under s.4 AVA 2024 that an authorisation must clearly specify the bounds of automation, sections 78 and 79 of the AVA 2024 gives the Secretary of State a power to place restrictions on how automated features may be marketed to consumers.
Section 78 enables the Secretary of State to make regulations that specify certain “words, expressions, symbols or marks” are appropriate only for use in connection with authorised AVs, and making it a criminal offence to use those terms in respect of vehicles not so authorised. The terms “driverless” and “self-driving” are likely to be candidates for such restrictions.
Similarly, it will be a criminal offence under s.79 AVA 2024 to make a communication in connection with the promotion or supply of a product or service that “would be likely to confuse end users of road vehicles in Great Britain as to whether a vehicle that is not an authorised automated vehicle is capable of travelling autonomously, safely and legally on roads or other public places”.
Amidst widespread and worldwide reports of AV users mis-understanding the boundaries of an AV’s capabilities, at times in reliance upon marketing materials that failed to clearly lay down those boundaries, these restrictions are an important and welcome aspect of the new regulatory regime. It will be important for these powers to be exercised swiftly and comprehensively to have any meaningful effect. The AVA 2024 provides that the Secretary of State may apply for a civil interim and/or final injunction preventing the use of such communications and restricted terms (see paragraph 4 to Schedule 5), but it is also likely that such restrictions will be enforced via regulations made under the AVA 2024 and as conditions of authorisation under the act.
7. Remotely operated vehicles can be authorised, although subject to additional regulation and authorisation
Typically, AVs will continue to have a user-in-charge on board within the vehicle, at least in the initial waves of AV technology. However, the AVA 2024 envisages and provides for AVs to be operated remotely, by a licensed no-user-in-charge (“NUiC”) operator, subject to additional requirements set down in regulations pursuant to s.12 AVA 2024. In the event that those AVs are operated as an automated passenger service, they will also require a permit (see s.82 AVA 2024), which presents another layer of safety-focused regulation.
Section 12 AVA 2024 envisages that regulations will specify that NUiC operators “should have general responsibility for the detention of, problems arising during a no-user-in-charge journey overseen by the operator” and, as with authorised self-driving entities (discussed below), NUiC operators must be of good repute and financial standing, and “capable of competently discharging any authorisation requirements imposed on it”.
8. The role of the ‘Authorised Self-Driving Entity’
For each AV given authorisation under the AVA 2024, a person must be designated as the ‘authorised self-driving entity’ (“ASDE”) in respect of the vehicle. Section 6 of the AVA 2024, which introduces this requirement, states that regulations shall be designed to secure, so far as reasonably practicable, the following objectives:
“(a) that an authorised self-driving entity should have general responsibility for ensuring that an authorised automated
vehicle continues to satisfy the self-driving test by virtue of its authorised automation features, and
(b) that an authorised self-driving entity should be—
(i) of good repute,
(ii) of good financial standing, and
(iii) capable of competently discharging any authorisation requirements imposed on it for the purposes of paragraph (a).”
Those requirements ensure that the safety of AVs, and their compliance with stringent regulatory requirements, is the responsibility of – and can easily be placed at the door of - a well-resourced legal person (whether the manufacturer, software producer, or other appropriate party). The aim of introducing an ADSE is the swift actioning of any safety or enforcement issues, as well as any co-operation with the Secretary of State of AV Inspectorate (see item 10 below), without any wrangling as to the precise cause of, and the legal responsibility of, those issues.
Whilst the identification of an ADSE also has the benefit of ensuring that those who suffer injury or loss as a result of the operation of an AV have an easily identifiable and well-resourced entity to have recourse to, in reality the operation of s.2 AEVA 2018 will mean that insurers are likely to be the first port of call for individuals who suffer injury or loss, with insurers pursuing, in turn, an ADSE or other liable party pursuant to section 5 AEVA 2018.
9. The Secretary of State’s enforcement and remedial powers
Separate from, and additional to, civil causes of action concerning AV accidents, the Secretary of State will have a power to issue redress notices where regulatory requirements are not met or an automated vehicle has committed a traffic infraction (anything that, if an individual were in control of the AV, would amount to an offence or give rise to a penalty charge, see s.44 AVA 2024) and “as a result, users of roads in Great Britain have suffered loss, damage, inconvenience or annoyance” (s.35). Traffic infractions will be the responsibility of the AV, unless “wholly caused by a failure of a licensed no-user-in-charge operator to comply with a requirement under operator licensing regulations”
Ultimately, the Secretary of State may vary, suspend or withdrawn an AV’s authorisation (see s.8 AVA 2024) where an authorisation requirement is not met or has not been met, an AV has committed a traffic infraction, or the AV no longer satisfies the self-driving test in respect of all authorised locations and circumstances. Whilst taking such action under s.8 will ordinarily involve the ADSE being given an opportunity to make representations prior to any withdrawal, suspension or variation taking effect, the Secretary of State will have the power to urgently suspend or vary an AV’s authorisation at the same time as seeking the ASDE’s representations where the Secretary of State considers that the need to suspend an authorisation is “too urgent” (see paragraphs 1-2 of Schedule 1 AVA 2024)
10. Annual Monitoring of AVs and the Establishment of an AV Inspectorate
The AVA 2024 contains a number of powers that enable information to be obtained from ADSEs and NUiC Operators by the Secretary of State and for premises to be investigated (see, in particular, Chapters 3-4 of the AVA 2024). Plainly, that safety information will be central to an effective authorisation system of AVs, but it is also likely to inform the Secretary of State’s remedial orders (see item 9 above) as well as national monitoring of how AVs are performing as compared to the safety principles. Two particular forms of monitoring are noteworthy.
First, under s.38 AVA 2024, the Secretary of State must put in place an effective and proportionate system for monitoring and assessing the general performance of AVs, which must look in particular at AV performance as against the statement of safety principles under s.2 AVA 2024, and report his or her conclusions on an annual basis. The Secretary of State must also make arrangements to identify the occurrence and causes of “relevant incidents”, which are defined as involving an AV on a road or public place which “reveal grounds for enquiring into whether any of the enforcement powers has become exercisable as a result of the incident” (s.39).
Second, s.60 AVA 2024 makes provision for the mandatory appointment of civil servants as inspectors of automated vehicle incidents, whose main purpose is the “identifying, improving understanding of, and reducing the risks of harm arising from the use of automated vehicles on roads in Great Britain” and, like other independent inspectorate bodies, has no role in establishing blame or liability for particular incidents (s.61), though may investigate those incidents for the purpose of determining their cause (s.62) and for reporting to the Secretary of State accordingly (s.68 and s.72). The inspector has powers to require information, items, or materials to be provided to him/her (s.63) as well as powers of entry and seizure (s.64) and other forms of assistance that may be provided pursuant to regulations made under the AVA 2024 (see ss.63(2) and 70).
The Future of AV Law: What Does the Road Ahead Hold?
First and foremost, the substantive provisions of the AVA 2024 need to come into force: they will come into force on a day that the Secretary of State so appoints under secondary legislation: see s.99(1).
Thereafter, many of the Act’s key features and provisions require regulations to be made or, in the case of the statement of safety principles under s.2 AVA 2024, statutory guidance to be issued. Both the statutory guidance and the vast majority of the regulations to be made under the AVA 2024 require representative organisations to be consulted. Against the dynamic backdrop of rapidly evolving automated technology and artificial intelligence, those provisions seem entirely sensible and worthwhile. They will, however, inevitably introduce a delay to the roll out of the substantive features of the AVA 2024.
What is clear is that the safety of AVs is the core and overriding principle of the regulatory framework. One of the likely side effects of those high standards is that vehicle features will need to be automated to a high standard to be authorised under the regime, removing the cause of much of commentators’ anxiety in respect of transition periods and user in charge monitoring of AV driving.
In announcing the royal assent of the AVA 2024, the Transport Secretary issued a press release stating that automated vehicles could be on Great Britain’s roads as soon as 2026. Whilst the framework of the AVA 2024 makes that possible, it remains to be seen whether the substantive foundations can and will be laid in automated vehicle technology, and in the framework for its approval, to see a wider range of automated features on our roads in a year and a half.
