The Law Commission has started a consultation to help determine their next programme of law reform. Under the theme of "emerging technology", one potential question is:
"Should a legal framework be developed to support the increased automation of public decision-making?"
As the Law Commission says, "automated decision-making systems use algorithms – a set of rules or instructions to be followed – in order to assist humans in making decisions." The legality of those decisions is then subject to administrative law. "But the relationship between technology and public decision-making is changing. As adoption rates of sophisticated algorithmic platforms in the public sector increase, questions will emerge about the risk of error, bias, transparency and public confidence in outcomes. The public seek assurance that these automated processes are fair and objective. Officials who wish to harness technological developments equally seek legal certainty." Whether or not the current law is appropriate with emerging technology and how it is used in practice is open for debate.
The issue of automated decision-making by public authorities may not form part of the Law Commission's next programme of law reform. The consultation for the previous programme received over 1300 responses and approximately 230 individual ideas for law reform; that programme finally settled on 14 projects (including smart contracts which we wrote about here).
However, the fact the Law Commission has chosen this as a potential area of reform is of note. This reflects wider debate and action on the issue. Some jurisdictions have introduced legislation on how public bodies should approach automated decision-making (such as the Canadian Directive on Automated Decision-Making or New Zealand's Algorithm Charter, which we wrote about here). There have been calls for legislation in England on the use of automated decision-making in certain contexts, such as in the employment process (such as proposals by the Institute for the Future of Work). More broadly, automated decision-making by public bodies is being scrutinised: it is part of the UK's National Data Strategy and has been the subject of detailed reports by government bodies, such as the Centre for Data Ethics and Innovation.
If the Law Commission include automated decision-making in its next programme it may take many years for a report or draft legislation to be published, let alone for legislation to be passed. In any event, the potential for law reform and the wider debate emphasises the importance of careful consideration now by public bodies of how, when and why automated decision-making is used.
Should a legal framework be developed to support the increased automation of public decision-making?