Flying high - filling regulatory gaps to incentivise mass take up of uncrewed aircraft

Uncrewed aircraft have the potential to revolutionise urban infrastructure and transport well beyond their current uses but there are a number of challenges to widespread adoption. These cover a range of safety, privacy, liability and security issues which need to be addressed before the public will be persuaded into mass acceptance. Industry standards and comprehensive regulation are required to address concerns and make uncrewed aircraft, particularly for passengers, a reality. In an ideal world, there would be international consensus but, in the meantime, the UK is considering its own legal framework.

As part of the UK Research and Innovation Future Flight Challenge, the Law Commission of England and Wales was asked to consult on how to prepare the UK for autonomy in aviation, particularly in light of the fact that many autonomous flight aircraft will rely on complex AI technologies which will be difficult to certify within the current framework. the Law Commission launched a consultation on the regulation of aviation autonomy on 26 February 2024 which closed on 27 May 2024.

As the Law Commission commented, there is a lot of aviation law in the UK and it is very prescriptive. There are concerns about gaps, uncertainties or restrictive regulation which could prevent the safe deployment of highly automated and autonomous aviation systems. The current UK regulatory regime around uncrewed aircraft is focused on two UK Regulations which are assimilated EU law. These adopt a safety-focused, risk-based approach, categorising operations as open (low-risk), certified (high-risk) and specific (a residual category for operations which do not fall into the other two). The certification system is the same as for conventional aircraft.

The consultation sought views on how to adapt and develop airworthiness and certification regulation. It looked at regulation of self-flying and remotely piloted aircraft (including drones), and advanced mobility vehicles including vertical take-off and landing (VTOL) aircraft. Areas of focus included safety, rules of the air to reflect remotely piloted craft, and liability issues where there is no pilot on board, in addition to specific types of remotely piloted aircraft. A further consultation later this year will look at air traffic management and air navigation services and a final report is expected in 2025.

Rules of the air

Views were sought on how the 'highway code' of the air should be adapted or developed to account for operations with a remote pilot or those that involve highly automated and autonomous aircraft.

VTOLs

VTOLs are currently usually piloted, however in time, it is expected they will be operated remotely. The Law Commission considers this raises legal issues including around responsibility for and management of passenger behaviour, and what happens when one remote pilot is operating more than one VTOL or if there is no remote pilot at all. The Law Commission asked:

• what the upper limit on number of remote aircraft to be operated by one person should be

• whether there should always be a role for human oversight, even where humans are not able to intervene directly

• how these new services can be made as safe and accessible as possible for people with different travel needs.

Drones

As use cases for drones develop, a higher level of automation is required - for example drones may be required to fly beyond the visual sight of their operators (BVLOS). The key question for the Law Commission is the level of risk this poses to other aircraft and to the public. The Law Commission sought views on requirements for drone operators in the specific and certified risk categories and asked about remote pilot responsibilities, including where one pilot operates multiple drones.

Civil and criminal liability

The Law Commission also asked about the approach to commercial and criminal liability for uncrewed aircraft and operations, including around safety, hijacking, carriage of dangerous goods, and offences relating to aerodromes. It asked whether the definition of 'hijacking' should be extended to include taking control of an aircraft when not on board.

What does this mean for you?

It is clear that the law needs to be updated to accommodate autonomous and automated transportation. The Automated Vehicles Act received Royal Assent on 20 May 2024 (as we discuss here) but reform of aviation law is lagging behind the reform of the law relating to automated road vehicles. The Law Commission's consultation is part of a three year review of the existing legal framework so changes are not expected in the immediate future but there are clear benefits to a simplified as well as a more comprehensive regime which takes account of evolving and future types of aviation.