Quiet regulation of a radical step: Barrister raises concerns about lack of guidance on hands-free driving
Alex Glassbrook, a barrister at Temple Garden Chambers, says that approval of hands-free driving is a radical development in UK motoring, and should be accompanied by effective official guidance, training and information to the public and affected organisations.
Where does the Ford hands-free announcement sit in the shift to self-driving in the UK?
AG: “The first question many of us asked was: Is this the first automated vehicle under the Automated and Electric Vehicles Act (AEVA) 2018? It appears that it’s not. First, because it hasn’t been listed under Section 1 of the Act by the Secretary of State for Transport. Second, because it seems not to fulfil the criterion of a system that does not need to be monitored by the driver, which is part of the legal definition under Section 1 and Section 8.
“So, what we’re looking at is a vehicle with advanced driver assistance, but not a driverless vehicle. Equally, what we’re looking at is something that does represent a culture change, because the driver is allowed to remove their hands from the steering wheel. It’s described as a ‘hands off, eyes on’ system, although this hasn’t prevented the media reporting it as a driverless system, which has implications for safety.”
What do you note about the roads which have been designated ‘Blue Zones’?
AG: “A Blue Zone seems to be the marketing name for an area in which this system can work. I’m not an engineer and I’ve not seen the technical details of the permission that has been given by government for this to operate. However, I note the description of the system as being limited to pre-mapped motorways.
“In a regulatory sense, there is broad symmetry between this and the e-scooter trials, in that they both appear to be based upon government permissions on a set of conditions and restricted to certain areas. But there are plenty of dissimilarities too. For example, that motorised scooters and mopeds (as e-scooters are classified) have been with us for over 100 years, whereas computer mapping technology is relatively new.
“What’s new about a ‘hands off, eyes on’ system is the relinquishing of physical control of steering by the human driver, which is a radical step. The technology itself is a progression of cruise control, which was introduced in the 1950s and came to prominence in the 1970s during the fuel crisis in the US. But relinquishing control of steering at motorway speeds is different – a profound step in both regulatory and practical terms.”
What needs to be considered now that hands-free driving is a legal reality in the UK?
AG: “Let’s begin with some historical context. Driver assistance systems have been accumulating for some time, but the legal standard for driving has not really altered since 1971. It was then that Lord Denning, in the case of Nettleship v Weston, set what can be summarised as the standard of the reasonably prudent human driver.
“It’s a largely objective test, and there are some exceptions, but since established it has never been substantially altered. That’s quite surprising because cruise control is now in such common use that you might have expected the standard of care to have been particularised in relation to it. Now we have a system that explicitly allows the driver to let go of the steering wheel while the car is in motion at motorway speeds. In the coming years, a court might face the question of what standard of attention is required of a driver using a ‘hands off’ system.
“For good reasons, namely the need to plan future laws, we have become very focused on fully driverless vehicles. That’s not a complete strategy, as it can mean that we’re looking to the horizon rather than at what is actually in front of us. To go back to the history for a moment, it took quite some time after the introduction of the motor car for The Highway Code to be introduced. The first edition was published in 1931, written guidance which many of us will have looked at.
“The Highway Code isn’t meant to be specialist guidance to industry, it’s meant to be comprehensible guidance to the public. Advanced driver assistance systems (ADAS) have been regulated ‘quietly’, mainly settled by negotiation at international level and then applied as industrial standards by national approval authorities. ‘Hands free’ driving seems too significant a step for that trend to continue without better official education about advanced driver assistance systems, and what they can and cannot be relied upon to do.”
So how does the guidance need to change?
AG: “The number of driver assistance systems has increased over time, and the quantity of such systems alone can be confusing. I saw an article recently on the most irritating modern vehicle features! Meanwhile, The Highway Code is still largely a text document, not very friendly to mobile devices, and there are plenty of situations it simply doesn’t deal with.
“At the moment, the guidance on driver assistance systems, rule 150, says in essence that those systems are only assistive, that you have to be careful while using them and not let your attention be distracted. Is that guidance too general, for a ‘hands off, eyes on’ system which allows the driver to take their hands off the wheel while driving a car on a motorway? Then there’s rule 160 – “Once moving you should… drive or ride with both hands on the wheel or handlebars where possible” – which will presumably need revision.
“We need to think practically about the information which people need to use these systems safely, and how best to communicate it. For example, a feature of this and other systems is that their announcement is often accompanied by explanatory YouTube videos. The Secretary of State for Transport has wide powers to provide guidance and road safety training and information, not only by the Highway Code, under sections 38 and 39 of the Road Traffic Act 1988. He is not limited to one means of providing that information.
“There’s also an argument that we focus too much upon the user of the system. Should road users around a vehicle be made aware that it might be being steered by a computer rather than a human?
“Others affected include those who enforce driving laws and who respond to road traffic collisions, particularly the police and National Highways officers. Then other public authorities, such as the judiciary, and businesses, such as driving instructors and insurance companies – those who form part of the wider motoring ecosystem. All of these people need to be aware.
“So, as well as the issue as to its content, I come back to the question of whether the Highway Code, coming up for its 100th birthday, and still a text document, represents the best or only available form of communication.”
The author of 2017’s “The Law of Driverless Cars: An Introduction” and co-author of 2019’s “A Practical Guide to the Law of Driverless Cars”, Alex Glassbrook’s new book “Advanced, Automated and Electric Vehicle Law” is available for pre-order now.
