Developers of driverless cars around the world are facing a major hurdle; the absence of a legal framework that will allow their creations to be used on the road. This Briefing Note looks at how prepared Ireland is for the testing and arrival of driverless cars.

The Global Picture
In the race towards driverless technology being available to the public, Singapore is leading the field, with the first ever public trial of robo-taxi services launched in August 2016. The company behind the trial (nuTonomy) was the first company to get permission from the Singapore government to test the cars in small public area, and has now begun tests with passengers. The cars are still manned by a driver during this testing phase, however, the company intends to roll out a fully automated taxi service once approved.

The United States has recently begun to prioritise the introduction of regulatory provisions in order to advance the development of self-driving cars. As of June 2016, some sixteen states had introduced Bills relating to automated vehicles. While these bills initially tended to take a cautious approach to the regulation of automated vehicles, subsequent revisions and reforms have revealed a willingness to put in place more progressive parameters.

In California, for example, fifteen companies currently hold permits to test driverless vehicles within the State. In 2015, the California Department of Motor Vehicles (“DMV”) released draft regulations for the public deployment of autonomous vehicles. These regulations included requirements that the autonomous vehicles had to have a driver capable of taking the wheel, eliminating the possibility of a fully driverless car. Most recently the DMV indicated that the more advanced self-driving cars will no longer be required to have a licenced driver at the wheel if federal officials deem them sufficiently safe.

Until recently, the absence of U.S government guidance had left the burden on state DMVs to manage the introduction of driverless technology, however, new federal guidelines (issued jointly by the Department of Transportation and the National Highway Traffic Safety Administration) on the testing and deployment of driverless cars have now been issued. While the guidelines do not explore the specific mechanics of regulation, they indicate that the Department of Transport will take responsibility for regulating the driving hardware and software, and have devised a model state policy which will relieve the pressure on individual state agencies.

The Vienna Convention
The 1968 Vienna Convention on Road Traffic is an accord among the participating members of the United Nations which covers road traffic safety regulations. One of the fundamental principles of the Convention (Article 8) is the concept that the driver is fully in control and responsible for the behaviour of a vehicle in traffic. Amendments have recently been made to the Convention which allow for the use of automated driving technologies or “driver assistance systems” which transfer driving tasks to the vehicle, provided that these technologies do not breach the United Nations general safety requirements for vehicles or can be overridden or switched off by the driver. This may be seen as the first step towards accommodating the concept of a driverless car within the Convention framework. However, Ireland is not a signatory to the Vienna Convention and as such these changes will have no effect in this jurisdiction.

The EU Approach
The European Union is currently funding research on automated road transport as a priority. The focus of this research is on how data protection and cyber security can be managed and how liability issues will be solved. Currently within the EU, deploying vehicles without a driver is only permitted by certain Member States which have put in place domestic legislation legalising the testing of automated vehicles in restricted areas (for example on approved test routes).

The Domestic Position
The behavioural laws in relation to driving in Ireland are governed by the Road Traffic Act, 1961 (as amended) and road traffic offences are enforceable by An Garda Síochána (the Irish police force). Legislation is supplemented by guidance from the Road Safety Authority (the “RSA”), a statutory body formed by the Irish Government to promote road safety. Legislation in Ireland does not yet conceive of the possibility of an automated vehicle and there are no anticipated changes to legislation in the near future.
The existing legislation which has been in place for a significant period of time is (understandably) aimed at what drivers are doing and seeking to ensure that drivers pay attention on the road. This includes requiring drivers to drive with due care and attention and not to drive a vehicle in a manner which is or is likely to be dangerous to the public. While one might argue that an automated vehicle means drivers do not need to “pay attention” and cannot be “careless”, the reality is that the legislation does not contemplate what is proposed and that a new regime will be required.

Challenges for Industry
The management of liability for autonomous vehicles will be a very important factor in the success of the industry. As human drivers will have less (or no) control over the choices made by the autonomous vehicle, the liability for accidents will fall primarily on the manufacturer of the vehicle (or its software developer). This is a shift from the current position which sees drivers shoulder liability for the majority of accidents (in the absence of an obvious technical fault with the car). Regulators will need to consider whether it is fair that this new liability for autonomous vehicles should be borne solely by the manufacturer (and they should also consider the likely impact that this will have on the cost of automated vehicles).

Some thought is already being given to the potential ethical choices which will have to be programmed into the software which will govern the behaviour of the autonomous vehicle. Those charged with programming the choices of autonomous vehicles will find themselves having to make choices in order to “optimise” the outcome of a certain crash. To illustrate the problem, some technological ethicists have drawn on the analogy of the classic trolley problem – if a driverless car is certain to crash, should it be programmed to continue its course (at the loss of several lives) or divert its course in order to cause the loss of just a single life? These are difficult (perhaps impossible) decisions for a manufacturer to make and might benefit from external guidance or regulation.

Globally there is currently a huge divergence in the approach to the arrival of driverless technology. Widespread reform of domestic legislation in Ireland will be required in order to introduce a framework which allows for the possibility of a driverless vehicle. Aside from the complex legislative changes, there are a number of other issues which will impact this area.

Difficulties in legislating will be compounded by the different approaches taken by manufacturers in relation to driverless technology. For example, while some developers are focussing on mapping routes (Google), others are exploring the possibility of smart streets (incorporating sensors in roads and smart traffic lights systems) in order to make the technology usable.

Aside from the required legislative changes, there will also be an impact on infrastructure, for which many countries may be under prepared. Notably, while there has been steady progress in legislation in the United States, few cities are considered to have incorporated autonomous vehicles into their long term planning processes.

Why Arthur Cox?
Our Transport Group includes lawyers who are market leaders in their fields of expertise and advise on all aspects of transport regulation including technology and innovation. We are advising a number of clients in this developing sector, assisting them in understanding the regulatory environment and devising commercial strategies with them for implementation in Ireland.