Equality and Human Rights Commission (EHRC) is Britain's national equality body, advising governments on the effectiveness of equality and human rights laws and enforcing the Equality Act 2010.  EHRC recognises the risks posed by AI: "There is emerging evidence that bias built into algorithms can lead to less favourable treatment of people with protected characteristics such as race and sex."  Earlier this year, EHRC said that addressing those risks is one of the six areas it will focus on in its 2022-2025 strategy: "addressing the equality and human rights impact of digital services and artificial intelligence".

EHRC's strategic plan says that it will:

- ensure that:

• Improvements in policy and practice reduce barriers to accessing digital services for people with protected characteristics. 
• People understand how the Equality Act 2010 applies to the design and use of automated decision-making, and how discrimination that might arise through algorithmic biases can be identified and challenged.
• There is improved understanding of how the Human Rights Act applies to the use of new technology in terms of privacy, surveillance and the use of data. 
• The law is updated in line with the development of new technologies to protect people from discrimination and breaches of their rights.

- achieve this by:

• Supporting service providers to understand how digital exclusion affects people, and how to use technology to make services more inclusive. 
• Working with expert organisations and regulators to identify and challenge discrimination in relation to artificial intelligence and emerging technology, and to embed fairness and equal treatment in the design and operation of systems and services. 
• Providing guidance on how the Equality Act applies to the use of new technologies in automated decision-making. 
• Working with employers to make sure that using artificial intelligence in recruitment does not embed biased decision-making in practice. 
• Making rights and freedoms in the digital age clearer, including how the Human Rights Act applies to privacy, surveillance and the use of data. 
• Identifying gaps in the law created by the development and use of new technologies. Advising on how the law can be updated to provide protection from discrimination and breaches of rights.

As part of their strategy, EHRC highlights two of its upcoming monitoring projects:

• EHRC will will work with a cross-section of around 30 local authorities to understand how they are using AI to deliver essential services, such as benefits payments, amid concerns that automated systems are inappropriately flagging certain families as a fraud risk.
• EHRC will also explore how best to use its powers to examine how organisations are using facial recognition technology, following concerns that the software may be disproportionately affecting people from ethnic minorities. 

The monitoring projects will last several months and will report initial findings early next year.

Comment

The risks posed by AI to equality and human rights is already well recognised in the UK:

• The UK launched its ten-year National AI strategy in September 2021. It recognised the role of the EHRC to address human rights and equality issues, and the role of other regulators for specific areas (e.g. data protection and competition) and in specific sectors (e.g. financial services or medicines).  It also recognised the UK's role on working with 'like-minded partners' and other governments to 'ensure that shared values on human rights, democratic principles and the rule of law shape AI regulation and governance frameworks'.
• The proposed cross-sector principles as part of any future (minimalist) regulation of AI in the UK look to cover equality and human rights, such as "embed considerations of fairness into AI".

But the UK's proposed approach - in particular, that regulating AI in the UK will (largely) be up to the regulators and will differ between sectors - raises questions about whether and to what extent EHRC's guidance and enforcement action will, or will not, be consistent with the approach of other UK regulators.  There may be some clarity in the future, including when the UK publishes a white paper on regulating AI in the UK (expected late 2022).  It may also be that cross-sector organisations like EHRC will help deliver consistency across the market and user experience.

In any event, organisations looking to procure, develop or deploy AI systems now should consider compliance with the Equality Act 2010, as well as other laws and regulations, to address the risks posed to equality and human rights.

If you would like to discuss how current or future regulations impact what you do with AI, please contact Tom Whittaker or Martin Cook.