The DfT (through the Centre for Connected and Autonomous Vehicles) has issued a call for evidence on the introduction of Automated Lane Keeping Systems ("ALKS") closing on 27 October 2020.

ALKS, once activated, typically controls longitudinal and lateral movements of a vehicle allowing a vehicle to both stay in lane and keep a safe distance from vehicles in that lane.  The Operational Design Domain of such systems tends to be limited (amongst other things) to motorway driving and speeds below 60 km/h.

The systems are a technology development beyond mere automated braking systems or lane keeping assist systems and are intended to allow for extended periods of system 'driving.'  There are increasing calls for their introduction for safety reasons.  The UNECE (WP29) adopted a harmonization regulation in respect of them in June this year (the ALKS Regulation).

The question as to whether or not ALKS constitutes "automated driving" is not however just one of semantics.  The nature of ALKS operation is that a human driver may disengage from the driving task for extended periods or be permitted to perform other tasks whilst ALKS is activated (such as using an infotainment system).  It also engages the difficult human factors issue of machine to human handover or transition demand when ALKS is both activated and deactivated.

The UK's Automated and Electric Vehicles Act 2018 (AEVA) provides that the Secretary of State for Transport can designate a vehicle as an "automated vehicle" where they are "designed or adapted to be capable, in at least some circumstances or situations, of safely driving themselves" (section 1(1)) (emphasis added).   

"driving itself" under AEVA is defined as "operating in a mode in which it is not being controlled, and does not need to be monitored, by an individual" (section 8(1))(emphasis added)

The challenging safety and definitional issues of vehicle to human handover and the extent to which a system requires drivers only to be receptive to handover requests as opposed to active monitoring were key themes arising from our 2018 VENTURER project report, "Driverless cars: liability frameworks and safety by design" authored in conjunction with AXA.  

At the time (report, page 10), we identified in the context of the then Automated and Electric Vehicles Bill, the question of whether vehicles with such "Level 3" or "conditional automation" functionality would be considered to be driving themselves safely and noted the then Government's position that AEVA was not intended to cover Level 3 vehicles.

Obviously much has happened since 2018 and the pace of technological and regulatory development continues to accelerate.  The ALKS Regulation sets out extensive operational safeguards and criteria and the UK Government has proposed (in conjunction with the Law Commissions and their work on Automated Vehicles law reform) in this call for evidence a series of further regulatory measures, amongst other things on control and monitoring criteria.  Emphasis is also put rightly on wider policy measures such as driver education, data use and law enforcement which is critical when it comes to supporting introduction of new technology.

The framework is intended to be able to put ALKS-capable vehicles under the statutory definition of "automated vehicle" for the purposes of AEVA which is critical from the perspective of motor insurance and the protection of third parties.  The "single insurer" model prescribed by AEVA ensures that, in the event of an accident, parties can be assured that, in the first instance, insurers will deal with the claims and the at-fault driver's insurer will be liable.  If ALKS functionality is not automated driving under AEVA, recovery of damages and claims handling would otherwise be highly unsatisfactory and mired in potentially complex technical disputes as to whether the driver or system caused the accident.

This call for evidence provides a valuable opportunity for the industry to assess what is potentially the first step in the road to automated vehicles.