The appropriate standard for deciding whether an automated vehicle is safe should be that it is as "safe as a competent and careful human driver", according to the Faculty of Advocates.

In its response to the third joint consultation paper of the Law Commission and Scottish Law Commission into a regulatory framework for automated vehicles ("AVs"), Faculty calls for a regulatory scheme that provides for transparency and accountability, and for independence in testing, all enshrined in primary legislation.

One general opening observation Faculty makes is that there are certain questions to which "there is more than meets the eye. A number of the questions raise interesting and complex issues which require more detailed consideration, and which expose that there may be unspoken assumptions which lie behind the questions, which assumptions need examination".

On the proper safety standard, Faculty notes that this is primarily a policy decision, but considers that the first option put forward by the Commissions is the correct "aiming point". 

The response continues: "We accept the point made in the consultation paper that there are some scenarios in which AVs will generally be better than a competent and careful human driver (due, say, to faster reaction times) and some scenarios in which it will be very challenging for AVs to match the standard expected of a human driver (those requiring wider contextual awareness such as... children playing near a road)...

"We consider that the definition of the safety standard may therefore need to be more nuanced than can be achieved in a single sentence. We would tentatively propose that the definition and publication of the acceptable safety standard... should be a duty placed on the Secretary of State rather than one to be enshrined in legislation."

Faculty further states its view that the ultimate liability for the safety of vehicles must remain with the manufacturer and not be assumed by the regulator, but there must be adequate and independent scrutiny of safety claims. "The regulatory scheme must avoid the twin dangers of over-reliance on manufacturers’ safety case claims (such as may have been the case with the Grenfell cladding) or specific tests (as with the diesel emissions scandal where manufacturers became focused on achieving the best test performance regardless of real-world performance)."

It also agrees with a proposal in the consultation paper that a specialist incident investigation unit be established to analyse data on collisions involving automated vehicles, to investigate serious, complex or high-profile collisions, and to make recommendations to improve safety.

Commenting on who should administer an operator licensing scheme as regards automated vehicles, Faculty believes this should be done by the Driver & Vehicle Standards Agency on behalf of traffic commissioners, as it was a task "broadly aligned with existing obligations held by DVSA".

On civil liability, Faculty notes a possible outcome that claims might be resolved differently depending on whether a vehicle is or is not under automatic operation at the time of an accident, "and this might open up a question (on which we express no view) as to whether to introduce a no-fault regime for all motor claims, as already exists in a number of jurisdictions internationally". It comments: "It seems sensible to consider such possible reforms as part of a wider review once more practical experience is gained."

Click here to view the full response.