Remote driving: Law Commission gears up for regulatory change

Autonomous vehicles have dominated headlines for some time now, but the Law Commission has recently turned its attention to remote driving. On 20 February 2023, it published a 134-page paper advising the UK Government on the legal status of remote driving, along with proposals for reforms. The full paper is accompanied by a more digestible 20-page summary and a high-level overview document.

Background

The paper follows a 2022 consultation (with stakeholder responses), and forms part of a wider legal review of emerging vehicle technologies. For example, the Commission produced a joint report on automated vehicles (AVs) in January 2022 (itself following previous consultations and reports, e.g. see our blog from May 2020), and the Department for Transport is planning to amend the Highway Code to accommodate the use of AVs (see our blog from April 2022).

What is remote driving?

Remote driving is different from using AVs, although there are some similarities and overlaps. It involves a driver (beyond the line-of-sight) using wireless connectivity to control a vehicle.

It is already in use in “controlled environments” such as mines, warehouses and farms, with benefits including safety and efficiency. This paper focused on remote driving on public roads, where its use has so far been limited, but could be harnessed as an “add-on” to automated driving or to deliver rental vehicles to customers, for example.

However, the risks of the technology are readily apparent, including loss of connectivity and cyber-attack. Remote drivers may also lack “situational awareness”, be more “detached” than in-vehicle drivers, and are unable to offer first-aid or other physical assistance in an incident.

Current legal status 

The paper highlights that “there is no express legal requirement for a driver to be in the vehicle” under existing UK law, although laws were written with this assumption. The current legal position is therefore unclear. As such, the paper notes that a “risk-tolerant organisation” could increase its use of remote driving without proper oversight, whilst the risk-averse might be deterred from adopting the technology.

Also, if someone is classed as a remote “driver” (with control of the vehicle), there is much greater scope for criminal liability if there was an accident than if they are merely a “remote assistant” (i.e. simply offering advice). The lack of clarity around this distinction, together with potential difficulties obtaining insurance given such uncertainty, could have a further chilling effect on the adoption of the technology.

Proposed reforms and next steps 

Licensing 

To plug the regulatory gap in the short term, the Commission proposes expressly prohibiting remote driving:

• without an in-vehicle safety driver, unless operators are granted a “Vehicle Special Order” (VSO), the existing legal mechanism also used for trials of electric scooters, exempting them from the safety driver requirement if certain criteria were met; and 
• from abroad, at least for now. There are numerous issues around accountability and enforcement against foreign individuals and companies (consider breathalysing a drink-driver, for example). As such, the Commission proposed a ban on remote driving from abroad, at least until international agreements can address these issues – perhaps unsurprisingly, this point caught the main focus of media attention on the paper.

In the longer term, if remote driving technology proves viable on public roads, primary legislation should establish a more detailed licensing regime along with a stronger range of sanctions, inspection and enforcement powers. The Commission proposals suggest principles from AV regulations should be used as far as possible.

Liability

One of the trickiest problems in both the AV and remote driving contexts is liability: who should be responsible if there is an incident? The paper looks at both civil and criminal liability, drawing on ideas already proposed for AVs. It proposes:

• No-fault insurance, as provided in the Automated and Electric Vehicles Act 2018 for AVs, should compensate someone injured as a result of remote driving. The victim therefore does not have to prove who (if anyone) is at fault – this is left to the insurer to establish.
• In a criminal context, new statutory defences should be available for remote drivers, to cover scenarios they could not have been aware of – for example, where a crash is due to the condition of the tyres (unless the technology alerted them of such). The test will be what a competent and careful driver would have done in the relevant circumstances. Courts are, however, still likely to have to perform complex assessments of novel scenarios.

Next steps

The tide is clearly moving towards more widespread use of remote-operated vehicles (as well as AVs). The Government therefore needs to decide whether the Commission’s recommendations are the best way to enable this in a safe and manageable way. However, as safety groups have stressed the urgency of regulating in this space, particularly given the current uncertainty on whether an in-vehicle driver is required, the paper suggests that the Government introduces secondary legislation (e.g. VSOs) which can already be made under existing powers, before a new Act of Parliament can be passed.