Enabling regulation and clarity is still required in most jurisdictions to enable safe and appropriate testing of AV technology, ideally with global consistency.
Much maligned as the enemy of innovation, regulation in developing industries such as AV’s plays an important role – to safeguard users, to create appropriate standards, to create a level playing field and to offer certainty and clarity. The chilling effect of uncertainty in a market is well known14. Having well developed and informed regulatory responses, whether that be soft law or hard law provisions, plays an important role in engendering investor and market confidence. The lack of regulatory framework is equally as harmful to progress as poorly designed regulation.
However, both automated vehicles and the broader issues related to smart cities share a common feature, in that they are both experimental. In a similar vein, the regulatory and governance responses also remain at an early stage of exploration. As it stands without government permits, testing self-driving cars on public roads is almost universally illegal. The Vienna Convention on Road Traffic, which has regulated international road traffic since 1968, stipulates that a human driver must always remain fully in control of and responsible for the behaviour of their vehicle in traffic. Some signatories to the Convention have taken the view that amending domestic legislation is required. Others, such as the UK have hitherto taken the view that the convention neither requires the driver to be in the vehicle, or defines ‘control’.
Regulatory responses to the growth of autonomous vehicles can be categorised as either (1) relating to the fit of existing regulatory frameworks to autonomous vehicles or (2) relating to the new regulatory concepts and approaches required. It is highly likely that some existing regulations remain relevant, and are neither a hindrance nor obsolete; that some will eventually be archived to the history books; and finally, there will be a need for a whole new set of rules to govern new and emerging concepts. Furthermore, the regulatory impacts of AV’s/CAV’s go far beyond vehicle focused rules – there is a network of interrelated frameworks which come into play – GDPR, consumer protection laws, and health and safety to name but three. Reframing all these relevant areas of the law will take time and as such will act as form of soft break on the advancement of broad and large scale roll out. It is undeniable that some form of regulation will be required, but reaching a settled state is likely to take some time. Globally governments are each taking a different approach.
In the UK the government first started to focus on the regulatory framework in 2015 with the production of the code of practice for testing of automated vehicle technologies. Although this was not mandatory, it was ahead of some of the UK’s peers. The Automated and Electric Vehicles Act 201815 has started to pave the way, although it focuses heavily on insurance and liability issues. It is however part of a much wider exercise involving a review by the Law Commission, which is due to report in 202116. The first consultation exercise which concluded earlier this year considered (1) safety requirements before automated vehicles are placed on the market, as well as ongoing monitoring and maintenance requirements once they are on the road, (2) criminal and civil liability, and (3) the need to adapt road rules for artificial intelligence. The consultation tested out concepts such as the ‘user in charge’ – an individual who would not be a driver while an automated driving system (ADS) is engaged. However, the ‘user in-charge’ would be qualified and fit to drive. Their role would be to take over from a Level 4 system either in planned circumstances; or in unplanned circumstances after the vehicle had come to a safe stop.
In Europe, despite attempts at the European level to develop consistency through its Digital Agenda, such as the Communication on Automated Mobility, and the Co-operative Intelligent Transport Systems (C-ITS) initiative17 there are very different approaches across the continent, and all at difference states of development. In Belgium, for instance, the Ministry of Mobility issued a Code of Practice in 2016 in relation to testing. This was followed in March 2018 with an amendment to the Belgium Highway Code which enabled provisions, such as the need for a driver, to be loosened for the purposes of testing AV’s. As a result of this, subject to being successfully granted the permission, companies can test their products on public highways in Belgium. The only requisite being that there must be a “distance operator, from a control room, supervising”18.
France has worked on similar provisions, under the auspices of Le plan d'action pour la croissance et la transformation des entreprises (PACTE19) (The Business Growth and Transformation Action Plan), which was enacted earlier this month, and the loi d’Orientation des Mobilités (Mobility Orientation Act 2019). France is looking to allow for broad open road testing of autonomous level 3-5 vehicles, supporting better data access, and safety requirements for public transport deployment.
Germany is a globally leading auto manufacturer, the sector plays an important role in the German economy. The sector generated roughly 426 billion euros in total sales in 2018, with VW topping the global rankings of the leading motor manufacturer, based on sales20. It is therefore not surprising that Germany was earlier out of the blocks than some, having implemented its amendments to the Vienna Convention21 in 2016. The amendment22 allows for the testing of vehicles in which the control is transferred to the vehicle itself, transfer of driving tasks to the vehicle itself, providing that the technologies used can be overridden or switched off by the driver. Fundamentally the provisions require that the vehicles should allow for manual oversteering at any time. The legislation requires that an onboard recording – a black box - collects and record journey details, including who is in control of the vehicle. As would be expected in Germany, access to the data collected is limited to law enforcement issues and civil liability. The legislation is due a review at the end of 2019 to assess its impact and effectiveness.
The Netherlands, although not a large auto market like the USA, Germany or China, has has however managed to out perform many of these other larger countries
Source: Global Survey of Autonomous Vehicle Regulation Synced, 2018
In a report compiled by KPMG in 201823, the Netherlands came first globally for preparedness for AV’s. The USA came 3rd, China 16th. In regulation terms autonomous vehicle road testing was approved in 2015, with further revisions in more recent years. In addition the Dutch government is investing large sums focused on transportation connectedness and communication
In the USA at the Federal level, comprehensive legislative framework remains elusive, despite SELF Drive Act24 passing through the House of Representatives in 2017, and attempts to make progress on AV START25 legislation. However, there remains a strong push to get the legislation through due to heavy lobbying from industry and others who fear that the USA may lose out in AV readiness to countries such as China.
Whilst awaiting comprehensive legislative action at the Federal level, there have been advances in guidance at and action at State level. In 2017 National Highway and Transportation Safety Administration (NHTSA) released new federal guidelines for Automated Driving Systems (ADS)26. This set of guidance, focuses on vehicle performance guidelines, a model state policy, NHTSA’s current regulatory tools, and possible new regulatory actions which the NHTSA believes could be helpful in ensuring the safe deployment of AVs. However, this guidance is just that, it is in no way compulsory for States to follow it.
National Congress of State Legislators autonomous vehicles legislative database
Interestingly, despite not having a federal framework in place some states have allowed a degree of AV experimentation on their roads, most known for this being Arizona. According to the National Conference of State Legislatures (NCSL), 29 states and Washington, D.C., have passed legislation related to autonomous vehicles. Governors in 11 states, including Arizona, Delaware, Hawaii, Idaho, Illinois, Maine, Massachusetts, Minnesota, Ohio, Washington, and Wisconsin have issued executive orders related to autonomous vehicles.
Source: Global Survey of Autonomous Vehicle Regulations, Synced, 2018
Meanwhile in China the Government has made it clear that it also does not want to be left behind. The Government is looking to move fast with fairly recent changes at the municipal and national level to allow for road testing. A global survey of AV regulations in 2018 found that things were moving fast in China – with a focus on the first tier cities27.
China's Preparation for the Introduction of Autonomous Vehicles, Nov 2017, AMMI
As in the USA, the approach is not uniform across China, with differing approaches adopted by local authorities and regulatory institutions. 2017 saw the introduction of the first road testing regulations for ADVs, otherwise referred to as the Beijing Regulations. Although not a nationwide set of regulations they encouraged others to follow suit. The rules apply to only specified level of ADV’s, generally referred to as the equivalent to level 3 of the SAE standards. Testing Entities are required to apply for permits from the Authorised Institution, which also monitors and tracks road tests by establishing a monitoring platform, and collecting real time data. In April 2018 the national government followed suit with its national guidelines28, paving the way for more cities to follow Beijing’s example. Including Shanghai, Chongqing, Shenzhen, Changchun, Changsha. This has sown the seeds for a significant expansion in testing zones.
Singapore often tops the headlines for ambition and focus on connectedness and smart cities. Likewise it has also made progress in the AV sector. Ranking 2nd globally, Singapore’s 2017 amendment to its Road Traffic Act29 allowing self-driving vehicles to be tested on public roads has helped it to compete with others in the field. It also has a single entity to coordinate AV work, the Singapore Autonomous Vehicle Initiative – a relatively easier task for a small city state. Although testing can take place on roads the regulations require initial testing in less busy areas in order to demonstrate preparedness. Akin to other countries, data logs are required to enable investigations and assess liability claims.
The challenge for those in the development and manufacturing of AV technology is how to reconcile this global patchwork of regulations, laws, standards and certification regimes. Some internationally focused organisations, such as the IEEE stand a better chance of developing a cohesive framework across borders. However nation states are all moving at different paces, and sometimes in diverging directions – reconciling the difference will remain a challenge for development teams in the short to medium term.