Consultation outcome

Explanatory memorandum to The Highway Code amendment [self-driving vehicles] 2022 [2022] No. [XXXX]

Updated 25 April 2022

1. Introduction

1.1. This explanatory memorandum has been prepared by Department for Transport and is laid before Parliament by Command of Her Majesty.

2. Purpose of the instrument

2.1. This explanatory memorandum relates to a proposed alteration of The Highway Code to include a new section on the rules for the safe use of self-driving vehicles on public roads.

2.2. The new section uses the term ‘self-driving vehicle’ for any vehicle listed as an ‘automated vehicle’ by the Secretary of State for Transport under section 1 of the Automated and Electric Vehicles Act 2018 (‘the AEV Act’). This list can be found on GOV.UK.

2.3. An automated vehicle (which The Highway Code will call a self-driving vehicle) is defined in law in the AEV Act, as a vehicle that is capable of safely driving itself without human monitoring or control while in automated mode.

2.4. The earliest iterations of such self-driving vehicles may reach the United Kingdom (UK) market later this year.

2.5.The alteration to The Highway Code seeks to improve road safety by ensuring that owners of self-driving vehicles use the technology properly and safely. It also has the purpose of clarifying driver responsibility and rules on the use of self-driving vehicles.

3. Matters of special interest to Parliament

Matters of special interest to the [Select Committee on Statutory Instruments]

3.1. The Highway Code is not a statutory instrument or other instrument falling within the terms of reference of the Joint Committee on Statutory Instruments.

3.2. The Department for Transport is also publishing concurrently the Road Vehicles (Construction and Use) (Automated Vehicles) Order 2022, which modifies the application of regulation 109 of the Road Vehicles (Construction and Use) Regulations 1986 to automated vehicles. Its effect is to enable drivers of such vehicles to be able to be in such a position to see non-driving related information on the in-built apparatus of their vehicle, provided their vehicle is driving itself and is not requesting the driver to take over control.

4. Extent and territorial application

4.1. The territorial extent of The Highway Code is Great Britain.

4.2. The territorial application of The Highway Code is Great Britain.

5. European Convention on Human Rights

5.1. As the instrument is subject to negative resolution procedure and does not amend primary legislation, no statement is required.

6. Legislative context

6.1. Legislative provisions relating to the revision of The Highway Code are set out in section 38 of the Road Traffic Act 1988 (‘RTA’).

6.2. A contravention of an advisory rule in The Highway Code can be relied on as evidence in civil or criminal proceedings (section 38(7) of the RTA).

6.3. Section 38(2) of the RTA provides that the Secretary of State for Transport may from time to time revise The Highway Code by revoking, varying, amending, or adding to the provisions of it in such manner as the Secretary of State thinks fit.

6.4. Where the Secretary of State proposes to revise The Highway Code by making any alterations to its provisions (other than alterations merely consequential on the passing, amendment, or repeal of any statutory provision), he must lay the proposed alterations before both Houses of Parliament and must not make the proposed revision until after the end of a period of 40 days beginning with the day on which the alterations were so laid (section 38(3) of the RTA). In reckoning any period of 40 days, no account is to be taken of any time during which Parliament is dissolved or prorogued or during which both Houses are adjourned for more than 4 days (section 38(9)(c) of the RTA).

6.5. If within that period either House resolves that the proposed alterations be not made, the Secretary of State must not make the proposed revision (section 38(4) of the RTA).

6.6. Before revising The Highway Code, the Secretary of State must consult with such representative organisations as he thinks fit (section 38(5) of the RTA). Section 38(3) of the RTA provides for any alterations that are consequential on the passing, amendment, or repeal of legislation to be made without the need for consultation or laying before Parliament.

6.7. Currently, The Highway Code does not articulate the rules to drivers on what is expected from them if they drive a vehicle with self-driving capability (an ‘automated vehicle’ as defined in section 1 of the AEV Act). The new section to The Highway Code will articulate expectations for drivers of self-driving vehicles. This section will bring together everything the driver of a self-driving vehicle will need to know, referencing relevant rules where appropriate. This change will bring The Highway Code up to date, reflecting the current understanding of the changing technology available on our roads. The proposed change includes a reference to the modification made to regulation 109 of the Road Vehicles (Construction and Use) regulations 1986, as explained in paragraph 3.2 above.

7. Policy background

What is being done and why?

7.1. Self-driving vehicle technology is set to play a major role in the transport revolution across the UK, helping to improve transport across the nations by making everyday journeys safer, more flexible, accessible and reliable.

7.2. Self-driving vehicle technology has the potential to reduce human error and reduce collisions and injuries on our roads. The technology also has the potential to improve the driving experience and give back productive time to the driver while travelling.

7.3. Self-driving vehicles are known in law as ‘automated vehicles’, which are defined as such by having been listed as required by the Secretary of State under section 1 of the AEV Act. The Secretary of State must list them if they are, in the Secretary of State’s opinion, designed or adapted to be capable of safely driving themselves in at least some circumstances or situations and may lawfully be used when doing so on roads and other public places in Great Britain. Under section 8(1)(a) of the AEV Act, a vehicle is ‘driving itself’ “if it is operating in a mode in which it is not being controlled, and does not need to be monitored, by an individual”. Part 1 of the AEV Act was commenced on 21 April 2021.

7.4. The first self-driving vehicles likely to meet the definition of an automated vehicle in the AEV Act are those with automated lane keeping system technology (specified in a new United Nations Economic Committee for Europe Regulation^{[footnote 1]}, known as the ALKS Regulation) which may be sold in Great Britain from the later part of 2022. ALKS technology is designed to operate at relatively low speeds on motorways, controlling the lateral and longitudinal movement (speed and direction) of the vehicle to keep it within its lane. It is designed to perform the driving task instead of the driver, for an extended period.

7.5. The scope of the ALKS Regulation, which came into force in January 2021, is currently limited to light passenger vehicles and to speeds on motorways of up to 37 mph. It is therefore designed for situations of slow-moving traffic on a motorway. However, an amendment to extend the scope to other vehicle categories will come into force in June 2022^{[footnote 2]} and there is a future intention to over time amend the ALKS Regulation to enable greater functionality, paving the way for more widespread use of self-driving vehicle technology.

7.6. The amendments to The Highway Code give guidance to the user, enforcement authorities and the courts, on what the legal expectations are concerning the safe use of self-driving vehicles. As reflected in the amendments, while a self-driving vehicle is driving itself, the driver is not responsible for how it drives and they do not need to pay attention to the road. However, they must be ready to take back control of the vehicle when the vehicle demands the driver to do so. The driver should follow the manufacturer’s instructions about when it is appropriate to engage the self-driving function.

7.7. The amendments also make clear that, while the human driver is not responsible for the driving task while the vehicle is operating within a valid self-driving mode, the driver retains all other aspects of the driver responsibility, such as ensuring they are fit to take back control of the driving task from the vehicle and ensuring the vehicle is roadworthy. These amendments are intended to provide for automated vehicles on the visible horizon.

7.8. The government wishes to amend and clarify these rules on use of vehicles listed as automated before their commercial deployment in the UK.

7.9.In January 2022, The Law Commission for England and Wales published a joint report^{[footnote 3]} with recommendations for a new legal framework for automated vehicles, which require a new act. Government is currently considering the recommendations but, since commercial deployment of automated vehicles is expected to take place before a new legal framework can be created, measures such as this instrument are needed in the interim.

8. European Union withdrawal and future relationship

8.1. This instrument does not relate to withdrawal from the European Union / trigger the statement requirements under the European Union (Withdrawal) Act.

9. Consolidation

9.1. Not applicable. No consolidation is being carried out.

10. Consultation outcome

10.1. The department ran a 10-week public consultation on the call for evidence for the Safe Use of Automated Lane Keeping System on Great Britain Motorways, from 18 August to 17 October 2020. The consultation focused on how to enable the safe use of vehicles fitted with ALKS technology and whether they could be considered to be ‘self-driving’, ie would meet the definition of an automated vehicle under the AEV Act.

10.2. The department received a total of 186 responses to the consultation document including from individuals, insurers, the automotive sector and civil society groups. Many of the respondents principally agreed with the suggested approach. The department published a summary of responses to the call for evidence on 28 April 2021, with a government response to the points raised.

10.3. The department ran a further 4-week public consultation entitled Rules on the Safe Use of Automated Lane Keeping System on GB Motorways, from 28 April to 28 May 2021, which specifically sought views on the draft wording of The Highway Code amendments.

10.4. The department received a total of 59 responses to the consultation including from individuals, insurers, lawyers and local transport authorities. Respondents to the consultation were generally supportive of the intention of the changes and asked for more clarity and detail on driver responsibilities and rules for use of automated vehicles. There were also requests for guidance on how to identify whether individual vehicles were automated.

10.5. The outcome of the second consultation can be found on GOV.UK.

11. Guidance

11.1. We will communicate the new section on self-driving vehicles in The Highway Code to the members of the public once it receives statutory approval in Parliament. Once the proposed amendment has passed the sitting period, The Highway Code on GOV.UK will be amended to include the new section on self-driving vehicles. DVSA will use its media channels to update all of their stakeholders and issue a press notice on the amendment. Hard copies of The Highway Code are published on a 6-monthly basis – the next hard copy version of The Highway Code, scheduled for publication in the autumn which will reflect this amendment, In addition, the government has established a group of stakeholders to develop and communicate messages on the capability and use of self-driving vehicles to drivers.

11.2. Driver and Vehicle Standards Agency (DVSA) intends to issue supplementary guidance on The Highway Code amendment shortly, which will be reflected across their whole range of resources for drivers.

12. Impact

12.1. There is no, or no significant, impact on business, charities or voluntary bodies.

12.2. There is no, or no significant, impact on the public sector.

12.3. A full impact assessment has not been prepared for The Highway Code amendment. However, de minimis impact assessments (DMAs) were conducted on the costs to businesses arising from the new process for registering self-driving vehicles and on the effect of the modification to Regulation 109. As the estimated combined cost of both DMAs was below the DMA threshold of £5 million per year the Better Regulation Unit was able to approve the DMA. The main benefit of these instruments arises from drivers being able to carry out other activities for either leisure or work (which may be very helpful for professional drivers). This will make self-driving vehicles more desirable, driving faster uptake and development of the technology.

13. Regulating small business

13.1. The amendments to The Highway Code apply to activities that may be undertaken specifically by small businesses, who use automated vehicles as part of their business.

13.2. The amendments to The Highway Code are intended to provide clarity about safe use of an automated vehicle for all drivers of automated vehicles, including manufacturing businesses regardless of size. Given this instrument primarily impacts on consumers and does not significantly impact any particular type of business, it is not thought appropriate to exempt small businesses, or that they require special provisions.

14. Monitoring and review

14.1. The government will continue to monitor and review The Highway Code section on self-driving vehicles to ensure that it is up to date, aligned with road traffic legislation and developments in the technology.

14.2. The Law Commissions have conducted a review of the legal framework for automated vehicles, (or what The Highway Code is calling self-driving vehicles) and published recommendations for regulatory reform in January 2022. The government is currently considering what legislative changes are required to facilitate the safe deployment of such self-driving vehicles and what changes will be needed to The Highway Code as a result.

15. Contact

15.1. [Name] at the Department for Transport, [telephone] or [email] can be contacted with any queries regarding the instrument.

15.2. [Name], Deputy Director for Centre for Connected and Autonomous Vehicles at the Department for Transport can confirm that this explanatory memorandum meets the required standard.

15.3. Baroness Vere of Norbiton, Parliamentary Under Secretary of State at the Department for Transport can confirm that this explanatory memorandum meets the required standard.

1. UN Regulation No 157 – Uniform provisions concerning the approval of vehicles with regards to Automated Lane Keeping Systems [2021/389]. See TRANS/WP.29/343. ↩

2. See the UN regulation on Automated Lane Keeping Systems (ALKS) extended to trucks, buses and coaches news story ↩

3. Automated vehicles: joint report, published on 25 January 2022. ISBN 978-1-5286-3149-5 ↩