Aviation Autonomy Phase 2: the Future of UAS Traffic Management in the UK

Automation and UAS traffic management

There seems little doubt that, in order to ensure a safe and orderly flow of the potential volume of future UAS operations, far greater levels of automation will be required at all levels of the system. This includes the world of air traffic management, air traffic services and air navigation services and within that, the realm of UAS traffic management or UTM. This raises significant issues around the integration of uncrewed aircraft with conventional traffic, much of which operates in uncontrolled airspace. Whether or not aircraft operating outside controlled airspace make use of air traffic services, those aircraft have significant freedom of operation and are dependent, in the last instance, on ‘see and avoid’. The limitations of that philosophy in terms of safety for crewed aviation are well debated and in any event are not available for uncrewed aircraft.

The UK approach is to pursue maximum integration of conventional and uncrewed aircraft, rather than adopting the European U-space concept which appears likely, at least in the medium term, to entail creation of segregated airspace. This poses a particular challenge to ensure the regulatory structure is fit for all types of aerial traffic in all classes of airspace.

Law Commission consultation – Phase 2

Hence the importance of the Law Commission’s consultation on UAS traffic management. This is the second phase of the Law Commission’s project to review the regulatory framework in the UK that applies to autonomy in aviation. It has been requested by the Civil Aviation Authority and the Department for Transport and is funded in part by UK Research and Innovation as part of the Future Flight Challenge. We reported on phase one last year (Aviation Autonomy – a New Legal Order? - Bird & Bird), which in many ways was more wide-ranging. However it is interesting to note that when we discussed the phase one consultation with Chris Daniels and Gareth Beverley, one of the fundamental issues which they raised then was whether the traffic management system or the pilot of an uncrewed aircraft would, in reality, be in charge. Indeed one of the key issues which is yet to be addressed is the extent to which the technology effectively merges some of the traditional operational and ATC functions.

Industry will no doubt be relieved that, at slightly over half the length of the phase one consultation paper, this is a rather shorter paper and contains a significantly smaller number of questions for response. Again, the Law Commission emphasises that respondents are not required to answer every question. Nevertheless, perhaps because of the narrower focus, there is considerable detail on the way in which air traffic services and other air navigation services contribute to air traffic management as a whole, how those services are regulated, where equipment must be certified and when individuals and organisations must hold licences or approvals. Understandably, one of the main aims is to of the paper is to determine whether the existing regulatory structure can accommodate the new types of ATS that are envisaged in a way that is compatible with integrating UAS and conventional aviation in all classes of airspace. For instance, the principle that there may only be one ATS service provider for a particular block of airspace makes it difficult to have separate controllers for conventional and uncrewed aircraft in the same area.

A new regulatory regime for UTM services?

The Law Commission generally favours the introduction of a separate regime for UTM regulation, primarily on the basis that the existing regime is both overinclusive and under inclusive, in failing to capture all UTM services that will be needed, but also imposing requirements that are not necessary in the context of UAS operations, or requiring particular roles to be fulfilled. For instance continuous air to ground voice communication is required in certain classes of airspace, which presumes both human air traffic controllers and pilots – something which is not likely to be the case. Other services such as registration and identification or discovery and synchronisation do not have obvious parallels with existing services. Meteorological services may need to provide more detailed information.

There are a number of examples of obvious similarities between aspects of geo-consciousness services and conflict management and their conventional counterparts, and the Law Commission does acknowledge that UTM service providers could be regulated within the existing structure. However the consultation argues that the outcome would be unsatisfactory. Possible solutions to some of the issues include increased authority to the CAA to allow derogation within the current regime – i.e. to licence certain functions without doing everything that is required of conventional ATM or ANS providers, or making use of subcontract or delegation arrangements for provision of ATS within certain areas of airspace.

The Law Commission’s view is that existing law on civil liability for acts or defaults by ATM/ANS service providers is likely to read across to UTM service providers and there is no overwhelming need to change – a view we largely share. However part of the logic is that passengers on board uncrewed aircraft usually benefit from a regime of strict (or at least presumed) liability on the part of the operator. If a large number of private operators were to emerge, who would not be subject to the liability of a commercial operator, that logic would not hold good and may result in more claims against ATM/ANS providers. These would typically be fault-based with all the difficulties that arise in disputes over the functioning of complex technology systems.

Industry should respond

Generally the questions posed by the Law Commission are items on which technical industry input, rather than legal, is required. Nevertheless the analysis is thorough and undoubtedly offers a fresh perspective on a subject which, in the development of drone regulation in the UK, has not received the same level of attention as operational procedures, platform standards and so on for light UAS. As we move into an era of steady state BVLOS operations, UTM is of increasing importance. 

Responses are requested by Friday 18 July, and the Law Commission aims to issue a single report on both phases of the project, with its recommendations for legislation, by early 2026. Whether any of those recommendations result in legislation will no doubt be a function of available Parliamentary time, but those recommendations should carry considerable weight, so we believe it important for industry to make its voice heard. 

We would, of course, be interested to discuss any of the issues arising with our clients and contacts. To do so, please get in touch with me at: [email protected].