#law - Cars of the Future

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.

UK Government list of self-driving vehicles (3 May 2023)

“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.

Hands-free but Highway Code says "both hands on the wheel" (3 May 2023) — Hands-free but Highway Code says “both hands on the wheel” (3 May 2023)

“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.”

Advanced, Automated and Electric Vehicle Law, 2023

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.

UK lawyer claims dangerous lack of evidence on safe driverless car to driver handover

Dr Subhajit Basu, of The University of Leeds’ School of Law, is a lawyer with impeccable credentials and a strong sense of public duty… and he’s got serious concerns about “handover” – the moment when a self-driving vehicle transfers control back to a human driver.

An editor at The International Review of Law, a Fellow of The Royal Society (RSA), and Chair of The British and Irish Law Education Technology Association (BILETA), he recently supervised research into “Legal issues in automated vehicles: critically considering the potential role of consent and interactive digital interfaces”.

The report, first published in the prestigious Nature journal, concluded that: “An urgent investigation is needed into the technology that allows self-driving cars to communicate with their operators”. Why? Because the “digital interfaces may be unable to adequately communicate safety and legal information, which could result in accidents”.

That is a stark warning indeed and Dr Basu believes the Government and the automotive industry need to be much more up-front about the issues.

Dr Basu report cover — Legal issues in automated vehicles report

SB: “The main safety messages surround the extreme difficulty most drivers will encounter when an autonomous vehicle suddenly transfers the driving back to them. Even if a driver responds quickly, they may not regain enough situational awareness to avoid an accident.

“The general public is not aware of their vulnerability, and it is doubted that an interface in an automated vehicle will communicate this point with sufficient clarity.

“The article in Nature was part of a multidisciplinary international project, PAsCAL, funded by the EU’s Horizon 2020, into public acceptance of connected and autonomous vehicles (CAVs).

“My expertise is in the regulation of emerging technologies. I’m one of those people who sees autonomous vehicles not as a disruptive, but as something which can improve human life. However, in order to do that, we have to put public safety, public service and public trust before profit. I always emphasise that transparency is paramount, but the autonomous vehicle industry can be extremely secretive.

“The overall goal of PAsCAL was to create a guide to autonomy – a set of guidelines and recommendations to deliver a smooth transition to this new system of transport, particularly with regards to the behaviour of the driver, or user in charge, of an autonomous vehicle.

“You have to recognise that an Assisted Lane Keeping System (ALKS) is basically an evolution of the lane departure warning systems that lots of cars already have, but in general self-driving cars are not an evolution but a revolution – they will change our way of life.

“We want to understand not just how the technology works, but also how people see it. The aim is to capture the public’s acceptance and attitudes – not just the users in charge, but pedestrians and other road users too – and to take their concerns into consideration.

“With any new technology there has to be a proper risk assessment. Take the example of smart motorways – it’s a brilliant idea in theory and it works in other countries, but there has been a lack of understanding in the UK. We didn’t create enough stopping places and the cameras weren’t good enough to monitor all the cars in real time. You need an artificial intelligence driven system which can identify a car which is slowing in a fraction of a second.

“Similarly with autonomous vehicles, if you want to deliver something like this you should have the right technologies in place. In this case, that means the human machine interface. The vehicle manufacturers (VMs) will basically give responsibility to the driver, the user in charge, saying “when you are warned, you should take over, okay?”.

“In our report, we argue that there will not be enough time for an individual to understand the legal complexities, what they are accepting liability for. The communication of that risk will not be easy for the user in charge to understand. Honestly, how many people have read the terms and conditions of Facebook?

“In autonomous vehicles, the human machine interface will communicate very important safety information and legally binding information, with civil or criminal implications if the driver fails to adequately respond.

“If you look at the proposed change to the Highway Code, it assumes that the driver will be able to take back control when prompted by the vehicle. We are concerned that even the most astute and conscientious driver may not be able to take back control in time. The effectiveness of the human machine interface is one limiting factor and then there is the driver – every driver has different cognitive abilities and different skill levels.

“Human beings are all different, they react differently to different circumstances, so defining the right timeframe for a handover is a difficult balance to strike. Are you going to assess people on their cognitive abilities, on the speed of their reflexes?

“In some circumstances, I have doubts about whether it is fair to have a handover even within 30 to 40 seconds. Certainly, there is nothing I have found where scientifically they have viewed 10 seconds as an adequate time. Cognitively, a blanket 10 seconds simply may not be possible – that’s my major concern.

“This is something we have been talking about for quite some time now. The UK government seems to be in very much in favour in pushing ahead with this technology quickly, because it fits with the “Build Back Better” tagline. There is a huge risk that we are disregarding safety in the name of innovation.

“I think the automotive industry has a responsibility here. When you are travelling in a self-driving car, the manufacturer is responsible for your safety, for ensuring that the technology is up to standard.

“The industry also has a responsibility to ensure that drivers are adequately trained, adequately educated. The argument that accidents happen and can be used for development is vulgar. Go and tell that to the person who has lost a relative – that this is a learning process.

“I am not against autonomous vehicles. What I am saying is that we need evidence-based conclusions. We need to be sure that the reaction time is well-founded and supported, so we don’t create a system which will fail.

“Personally, I propose that we should first create a comprehensive legal framework which should mandate additional driver training for the safe use of self-driving systems. The automotive industry could take a lead on this, actively push for it.

“At the end of the day, this is about road safety, it is about saving human lives. I believe that autonomous vehicles can reduce congestion, can be good for the climate, but they also have the potential to become deathtraps because we are getting over-reliant on the technology to work perfectly and over-relying on human ability, without the evidence-based research to find out whether we can react within the stipulated time.

“As a lawyer, it is my responsibility to uphold public safety, to highlight the risks. If the government and the automotive industry don’t face these issues, then people will lose trust in this amazing technology.”

For more, you can read the full Nature article here.