In general, transport in the UK has been regarded as a well-regulated sector. It is not surprising, given the obvious potential for public harm, and the high profile of any errant behaviour or system failures. Vehicles, drivers, infrastructure, and service provision by operators are all subject to safety and customer protection regimes. But technology and business practice move on, generating new issues to be addressed. Generally, this happens on a rather piecemeal basis when new modes, technologies, or commercial models emerge, but not always then.
Accordingly, under the Boris Johnson government, the Department for Transport launched its Future of Transport Regulatory Review in 2020 in the form of a call for evidence, initially focused on three areas: micromobilty; flexible bus services; and Mobility as a Service. Other topics that have been considered under this broad initiative included the future of flight, and modernising road vehicle standards. There has also been a look at ‘regulatory sandboxes’ as a means to introduce temporary or specific place-based regulatory flexibilities to support innovation. Yet addressing such topics ad hoc seems to have so far yielded little in the way of useful regulatory advance in any of these fields, let alone others of concern such as secure digital payment systems, customer data protection, and standards of information provision, for example.
One area that has been subject to full consideration is the regulation of automated road vehicles (AVs), an area where the last government seemed to believe there to be a major new industrial development and employment opportunity. The Law Commission was asked to recommend a regime to govern responsibilities when vehicles are operating in driverless mode, whether as ‘robotaxis’ or individually owned vehicles. The outcome was the Automated Vehicles Act 2024, which had broad political support. There is now in place a comprehensive legal framework that developers, operators and insurers of AVs might see as helpful in making clear their legal responsibilities, which, however, might be seen as quite onerous compared with arrangements in countries where the main development of the technology is taking place, the US and China in particular. UK developers of AVs are limited in number and their commercial prospects are unclear.
To be sure, the regulatory regime being put in place for AVs is forward looking and intended to encourage innovation. But the implications for the wider transport system and the management of the road network as a whole, particularly in urban areas, are consequential matters that also need careful consideration, a topic recently reviewed by the International Transport Forum and the subject of an exploratory project report by the National Infrastructure Commission.
Another fast-moving technological development area is aviation. Here a comprehensive sectoral regime operated by the Civil Aviation Authority is well established to oversee safety, security, the efficient use of airspace for maximum public benefit, and to protect the consumer interest. The CAA has set up an ‘innovation hub’, the purpose of which is to create an environment where innovation in aviation can develop in line with the CAA principles. These include ‘pilotless‘ planes and drones. A recent review endorsed the view that CAA is a world class regulator that is fit for purpose, delivering high quality services to the aviation and aerospace industry and the consumer. Moreover, the CAA and DfT are consulting on the creation of a new UK Airspace Design Service that would act as a single guiding mind for modernising the design of UK airspace, exemplifying the CAA’s proactive approach to innovation.
A further sector-wide regulator is the Office of Rail and Road, which originally was solely charged with regulatory oversight of railways, including holding Network Rail to account for stewardship of its network, its funding, as well as protecting the consumer interest in respect of services provided by the train operating companies. The ORR carried out a consultation in 2015-16 on its approach to innovation, following a prompt from the government. The ORR has taken the view that innovation is led by the rail industry and where appropriate it would be supported by the overall regulatory framework, including the duty to promote improvements in railway service performance and promote efficiency and economy on the part of providers of railway services. So, compared with the CAA, the ORR’s approach is relatively passive.
Since 2014, the ORR also has some oversight of roads, but this is limited to the engineering performance and efficiency of National Highways in England in respect of its network, not to other roads. The ORR’s remit does not allow it to address the benefits to road users of new road investments – whether the outturn from investment in new road capacity meets expectations – nor whether the strategic road network is being efficiently utilised (unlike the CAA’s concern with the efficient use of airspace). Again, there is a lack of intention actively to foster technological innovation for the strategic road network, or to analyse and prioritise the optimal use of capacity, and identify where enhancement is most justified.
For road vehicles more generally, there are important examples of regulatory approaches that both drive and support technological innovation. Tackling the harms from tailpipe emissions of petrol and diesel enginned vehicles has been effected by regulations within the portfolio of the Department for Transport that have driven down emissions of air pollutants and by the ZEV Mandate, a legal requirement for a minimum percentage of each manufacturer’s new car and van sales to be zero-emission each year. Regulations made by local authorities to create urban clean air zones (in London known as the Ultra Low Emission Zone) also help incentivise the switch to electric propulsion, a once-in-a-century transport technology innovation. While the propulsion systems and physical impacts of individual classes of vehicles are a DfT matter, concern for overall emissions and air pollution lie elsewhere – with the Department of Environment, Food and Rural Affairs (Defra) and Department for Energy Security and Net Zero (DESNZ).
When it comes to new modes of travel, the Department for Transport again seems to be following rather than leading, with actions in fits and starts, for example in making regulations allowing trials of rental e-scooters to be fast tracked and expanded in response to proposals from local authorities. The intention is to understand usage, safety, and environmental impacts, and to explore changing travel patterns since the coronavirus pandemic and as e-scooters become more embedded in public life. Only e-scooters participating in official rental trials may be used legally on roads. It is expected that a decision will be made in due course about legalisation of e-scooters as a vehicle class, and about the appropriate regulatory regime, which may include a requirement to park rental e-scooters in prescribed bays. E-bikes are already legal and treated as ordinary bicycles if of limited power, but the problem of inappropriately parked dockless rental e-bikes prompts complaints and pressure to regulate.
In contrast to the supportive approach to e-scooters, and a permissive approach to e-bikes, as innovative mobility technologies, there has been inaction in several other significant areas. This includes updating the historic taxi and private hire legal regime, with minimal recognition by the authorities of the merits of ride hailing as an innovative means of summoning a taxi, exemplified by Uber’s struggles to get acceptance in London. This involved a number of court cases, which found in favour of Uber, while the company lost some other cases concerned with the employment status of drivers, which nevertheless has not seemed to impact on the provision of the service. Uber’s digital request and booking/payment system has proved very popular with users as a better means of getting a taxi compared with licenced black cabs or conventional private hire vehicles, as well as being sufficiently attractive to drivers so as to offer customers an acceptable level of service. But this outcome was no thanks to a taxi regulatory regime having a remit to foster innovation. On the contrary, taxi regulation is historic, not modernised for the digital age, rightly concerned with the protection of customers, less defensibly having the effect of protecting the trade of established black cab drivers. There is a marked contrast between this reluctance to welcome innovative approaches to taxi services and the progressive stance towards automated vehicles, including robotaxis.
In terms of road usage, beyond the urban areas where e-scooters and ride hailing taxis operate, regulation of the inter-urban system roads is confined to vehicle and driving licence holding, vehicle type approval and performance – handled by a number of specific agencies like DVLA and DSA – with speed limits and other rules of the road embodied in the Highway Code – an historic regime that has not generally recognised advances in innovative technologies.
One technological innovation that has been widely adopted is digital navigation, applicable to all travel modes to replace conventional maps. In the road context, this is generally known as satnav and is offered by a number of providers including Google Maps and Waze via free-to-use smartphone apps, and others who provide input to equipment installed by vehicle manufacturers. A key element of many of these offerings is to indicate the fastest route in the light of prevailing traffic conditions. Digital navigation is changing the way drivers use the road network in three main ways: local users are attracted to new capacity on major roads, pre-empting the additional capacity intended for longer distance business users and so weakening the economic case for the investment; longer distance users can divert to local roads that offer faster journeys than on congested major routes, roads that are well suited to active travel; and predictive journey time information allows more efficient use of the network.
At present, provision of digital navigation is a free-for-all, funded by sales of direction-finding to businesses that wish to attract clients to their premises, as for Google Maps; or by the sale of services to vehicle manufacturers that fit navigation as original equipment, as for TomTom. Road authorities generally seem to be paying little if any attention to these developments. Yet there are opportunities being overlooked to make better use of the road network, both urban and inter-urban, including buses services.
Curiously, legislation has long been in place to allow providers of digital navigation to be regulated. This dates back to 1989 and requires what were then termed ‘dynamic route guidance systems’ that take account of traffic conditions to be licensed by the government. The intention was to facilitate the introduction of a pilot route guidance system, known as ‘Autoguide’, that had been developed by the government’s Transport and Road Research Laboratory and required roadside equipment to be installed – a good example of forward-looking regulation to support innovation. The licence could include conditions concerning the roads that should not be included in the route guidance, the provision to road authorities of information on traffic conditions, as well as the right to install roadside equipment. In the event, the Autoguide pilot did not proceed, due, I suspect, to the limited computing power available at that time. Nevertheless, the legislation has remained on the statute book although no licences have been applied for or granted.
The possibility of achieving more efficient use of the road network through provision of better information about traffic conditions to both road users and road authorities was recognised early on by John Wardrop, a traffic analyst at the then Road Research Laboratory, in a seminal paper published in 1952. He postulated two equilibria. The first states that, under equilibrium conditions, traffic arranges itself in congested networks in such a way that no vehicle can reduce its costs (time and money costs) by switching routes. For this to happen in practice, drivers would need to have perfect knowledge of all feasible routes and travel times. Digital navigation may be seen as improving such knowledge, thus enhancing network efficiency, yet with a number of independent providers that may offer conflicting advice, it is hard to assess to what extent increased efficiency is being achieved.
Wardrop’s first equilibrium assumes that road users make decisions without regard to the impact their choices may have on others – a ‘selfish’ equilibrium. According to his postulated second equilibrium, the average journey time would be at a (lesser) minimum if all users behave cooperatively in choosing their routes to ensure the most efficient use of the whole system. This would be the case if an omnipotent central authority could command them all which routes to take. Traffic flows satisfying Wardrop’s second equilibrium are generally deemed system-optimal, and the loss of efficiency from this to the selfish equilibrium is an example of what is known as ‘the price of anarchy’.
Economists argue that a more socially optimal outcome could be achieved if the costs imposed by the marginal road user on others, by adding to congestion, could be internalised by a congestion charge, thus modifying behaviour by reducing demand through higher vehicle operation costs. However, implementing road pricing is difficult in practice, and there are issues of equity, so a question worthy of investigation is to what extent a more socially optimal outcome could be achieved through flexing the routing advice offered by providers of digital navigation – ‘nudging’, not compulsion
The likelihood that improved operational efficiency could be achieved through digital navigation is suggested by the wide use of such routing and navigation systems by the competitive road freight sector. Everyday experience of online shopping indicates the use made by logistics businesses of digital technologies to manage, track and predict flows of goods, often offering delivery time slots of two hours or less, all done algorithmically. This points to techniques to achieve operational efficiency on congested road networks that might be extended to the generality of traffic in a way that could be far more cost effective and less carbon generating than civil engineering technologies.
The competing providers of digital navigation services are generally uncommunicative about their operations, while highway authorities appear to show no interest in the impact of this technology on the functioning of the road networks for which they are responsible. One kind of opportunity for mutual benefit would be when the network is under stress, for instance on the occasion of major incidents, peak holiday flows, bad weather and the like. It is probable, and certainly worth further investigation, that coordination between highway authorities and digital navigation providers could make better use of available capacity. There is also the possibility of improving operations at normal times, including avoiding routing through traffic via unsuitable minor roads. There is therefore likely to be scope for coordination that would improve outcomes for road users. This might be through the parties acting voluntarily for mutual benefit, or through the updating and implementation of the 1989 regulatory regime.
Although, by and large, the transport sector is functionally regulated to avoid calamity, there are obvious gaps that could usefully be filled to the benefit of users and to give innovators a sound basis upon which to progress their new ideas – or at least try them out with appropriate dispensation. This is particularly the situation in respect of the operation of the road network. As well as concern for safety and customer protection, all regulators should have a remit to encourage innovation that offers user benefits, since making effective use of existing infrastructure is preferable to creating new capacity, given the need to achieve the Net Zero climate change objective.
The new Labour government has set up a Regulatory Innovation Office, with the aims of supporting regulators to update regulation, speeding up approvals, ensuring different regulatory bodies work together smoothly, informing the government of regulatory barriers to innovation, and setting priorities for regulators which align with the government’s broader ambitions. This is an ambitious and potentially extensive agenda. Yet it will be disappointing if the emphasis solely on novel and exciting new technologies, a possibility suggested by one initial topic, the role of drones as a form of connected and autonomous vehicle technology – surely a rather niche market. In contrast, there is much scope for encouraging innovative approaches in the mainstream emerging transport technologies, where the new Office could hopefully play an influential role.
This blog post is the basis for an article that was published in Local Transport Today 0f 31 October 2024.