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Drones - don’t blame regulators for a lack of support, says lawyer. Be more responsible.

Chris Middleton Profile picture for user cmiddleton January 29, 2024
Summary:
What is the legal perspective on drone regulation? A barrister speaks out

Image of a flying drone

My previous report on the drone sector found Robert Garbett, CEO of air and sea drone consultancy the Drone Major Group, explaining how and why the industry needs to grow up. Innovators should abandon absurd flights of fancy, he suggested, and focus on commercializing the ideas that solve real problems (rather than the imaginary ones solved by last-mile urban deliveries and autonomous air taxis, for example).

His views were broadly welcomed by other speakers at a Westminster drone policy conference, such as Professor James Scanlan, Professor of Aerospace Design at the UK’s University of Southampton. I endorse them too; indeed, I was heartened by the long-overdue outbreak of common sense.

However, Scarbett also made the point that some in the industry blame the regulators for the lack of commercialization in some quarters, as if all that stands between a bad idea and big profits is a bureaucrat with a rubber stamp. 

So, what is the legal view on this? What are the unique challenges in regulating a sector that may soon see traditional aviators sharing the sky with thousands of autonomous or remotely piloted craft?

Tom Walker is Senior Associate Barrister at legal partnership Blake Morgan. He observed that the British government’s rhetoric on technology innovation is not helping, because it has the effect of suggesting that regulators are somehow Luddites and inhibitors, rather than skilled enablers. 

Speaking at the eForum event, he said:

‘World-leading this’ and ‘world-leading that’, and ‘cutting through red tape’, and so on… 

We need to be cautious about wholeheartedly adopting the idea that regulation stifles innovation, because when you look at some of the source material that has driven these conclusions, and at the academic papers, lots of the evidence for it is based on the self-reporting of industry professionals, and how they perceive regulation. But when you actually get down to the detail, it's generally to do with speed, not substance

So, it’s important to draw a distinction between the speed of regulation versus the actual substance. And to take with a pinch of salt the idea that regulation itself is something we need to ‘cut through’.

If you want a long-term approach – with stable investment and a stable, profitable, and safe sector – then it is through, careful, nimble, quick, flexible regulation.

An ambitious mix of aims. However, in general terms, this echoed Scarbett’s observation that the UK’s Civil Aviation Authority (CAA) is not inhibiting innovation in future flight technologies deliberately (if at all), or out of innate conservatism. It is more that it is overwhelmed by its workload – an organization understaffed and underfunded for the new world in which it finds itself. As a result, it errs on the side of caution. 

I would add that we should be grateful for that caution, given that traditional aviation is currently still the safest form of transport. An aerial Wild West is best avoided, if it puts at risk lives in the air and on the ground, not to mention adds an intolerable burden to people’s quality of life in cities.

Walker explained:

Drones pose a regulatory challenge because they're agile, accessible, affordable, adaptable, and anonymous. And I'm going to add a sixth ‘A’ to that in terms of the solution, and that is [the need for] accountability. 

The cure for all these ills is accountability. What we need with drones is a clear enforcement network with clear accountability.

He added: 

Although a just culture tends to avoid apportioning criminal liability in the early stages, we do need a clear mechanism for that in relation to drones. 

At the moment you can prosecute drone safety issues under some other legislation, but going forward we would need more detail about how you could prosecute and apportion liability, both corporate and individual, in relation to the use of drones. 

I also think it's important to have individual criminal liability as a tool in the regulatory toolkit, reserved for the most serious incidents. My experience of working with companies, and with individual directors, is that this focuses the minds of those in industry – that they could, potentially, be individually liable if things go wrong.

Overall, that improves the working culture, and it drives the safety culture forward, as well as improving public perception. All of which goes to that sixth ‘A’ that I mentioned, accountability. When you have a new industry that is accountable, it helps both internally and in terms of the external perception.

Outcome focused regulation

So, what of the view expressed in some quarters that critics of drone innovators’ wilder flights of fancy are just Luddites and stick-in-the-muds opposed to technology change? He said:

Not all opposition to technical developments is anti-technology! It can be very nuanced. People will oppose certain technologies because they don't believe the risk, or the cost, is worth tolerating in terms of the overall objective.

That is certainly the case when it comes to opposition to last-mile drone deliveries, for example. Walker continued:

So – whichever side of the fence we are on – I think it's important that we don't typecast our opponents as simple-minded. That we actually listen to what they have to say.

Quite right, which brings us back to the regulators’ role in all this. In general terms, there are two approaches, he noted:

One is prescription-based regulation, which is very much directive: ‘Do it this way, or that way’. And it is often regarded as the best for safety-critical areas where there are very well-known technical standards. 

However, the other objective – which is ‘soft law’, if you like – is more outcome focused, where you look at the overall objective. For example, by saying that you need to reduce the risk as low as is reasonably practicable. And for something like drone development, this second approach is perhaps more flexible.

But that would not mean taking a more relaxed, laissez-faire view of the sector, he explained. Quite the opposite:

In order to support that, you need the development of a strong industry, a strong safety culture, and strong industry associations. And you need the development of guidance to inform stakeholders where they're going. 

So, ultimately, the starting point for all this is in the industry itself. Excuse the pun, but to really get [drone innovation] off the ground, you need the development of a drone safety culture, and a drone just culture. And that would make the life of the regulators easier.

My take

Wise words. So, if drone innovators want regulators’ support, then they need to act more responsibly, transparently, and with accountability from the get-go, and not blame others for failing to greenlight ideas that, in some cases, are frankly not worth the risk in the first place.

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