Autonomy in aviation – Law Commission consults on UK regulatory framework as lawyers call for a new human right

At the request of the Civil Aviation Authority (CAA) and the Department for Transport (DfT), the Law Commission has issued a public consultation on reforms to enable autonomous and remotely piloted flights to take place safely.

The consultation takes place in the midst of emerging technology and following the publication in March 2024 of the Department for Transport “Future of Flight Action Plan”, which will see drones piloted outside the visual line of sight of the operator and both manned and unmanned Vertical Takeoff and Landing Aircraft (VTOLs).  For more details on this, please see our “Future of Flight Action Plan” article.

The consultation 

This covers a number of areas to include “rules of the air”, drones, and VTOLs’ civil and criminal liability.

The provisional view of the CAA and DfT are expressed in several places within the consultation document, namely that:

• Current regulation of air carrier civil liability for injury/death of passengers and for cargo remains adequate for autonomous/remotely piloted aircraft.
• The current approach of the Air Navigation Order [2016,- placing criminal liability on operators, should remain.
• For any “reasonable case” defence, the remote pilot should be treated as the pilot in command.
• Product liability currently governed by the Consumer Protection Act [1987] should be reviewed to consider all emerging technologies and not be confined to aviation/automated vehicles.

More uncertain areas include:

• Who in unmanned passenger VTOLs will bear the responsibility for passenger behaviour.
• Whether current criminal sanctions around hijacking in domestic law should include an extent of the unauthorised seizure or control of autonomous/remotely piloted aircraft by technical means by persons not on board.
• Cyber threats. 
• Software bugs or malfunctions.
• Integration into air traffic management.
• Flexibility and remotely piloted aircraft to deviate from CAA rules in the interests of safety.

Commentary 

The aim of the consultation is to plug gaps and uncertainties in existing legislation by seeking a comprehensive review through this consultation of all salient issues. 

Currently, commercial aviation in most instances imposes strict primary liability on operators – which it appears both the CAA and DFT are keen to replicate in their future recommendations.  This will not, however, preclude secondary contractual and liability disputes with suppliers and producers.

The difficult balancing act will be in ensuring that current exacting safety standards in aviation, which have led to an admirable safety record, are maintained without stifling innovation or investment in truly “game changing” technology.

Insurers will play a key role in providing reassurance to operators, suppliers and producers and this opens the door for them to provide products and policies in an exciting new market. We note calls made elsewhere for data sharing between the CAA/DfT and insurers to allow them to assess risk and price competitively but realistically. The consultation closes on 28 June 2024 with the Law Commission’s report due to be published in 2025.

Separately, the Law Society Gazette reports (article 22^nd June 2024) on a campaign launched by lawyers, academics and artists for a new human right ‘to live without physical or psychological threat from above’.

The proposed right is to be presented to the United Nations and Council of Europe this summer. Counsel Kirsty Brimelow KC comments ‘whilst we have a human right to the peaceful enjoyment of possessions there is not yet a right to be in possession of peaceful enjoyment of airspace’.

Existing international law governing aviation and space dates back to the 1940’s and 1960’s. Human rights law expert Professor Grief states ‘the proposed right would take into account the pervasive impact of technologies unforeseen at the time’.

Whether the proposed new human right ’takes off’ remains doubtful. However, what is clear is that the UK is committed to embracing these new forms of aerial transportation and to ensuring that the regulatory framework is appropriate to support this emerging risk.