Automated Decision Making (“ADM”) and Assisted Decision Making (“ASDM”) systems are widely used to support decision making across the public sector. When deployed appropriately and lawfully, the adoption of these technologies offers the potential to improve the speed and consistency of decision-making whilst generating significant savings for the taxpayer. However, recent experiences in immigration, policing, welfare and education have highlighted the risks and limitations associated with the use of ADM/ADSM systems. These risks, if unaddressed, can undermine rights, damage trust in public sector bodies and generate costly litigation. As such, it is important that positive regulatory and legislative solutions are in place to govern the use of these systems and provide swift and effective routes to redress.
In June 2021, The Legal Education Foundation convened a technical legal workshop and commissioned research which revealed both the inadequacy of existing law and the consequences of its deficiencies. Existing legal frameworks are complex, piecemeal and provide insufficient clarity about whether, when or how ADM/ASDM systems can lawfully be deployed by public bodies. This creates uncertainty and increases the risk that ADM/ASDM systems will be deployed inappropriately, with deleterious consequences for individuals, public bodies and the taxpayer. Mechanisms for seeking redress are both complex and expensive to access, and the actual redress available limited.
To develop effective solutions, The Law Commission should examine and learn from international approaches to regulating public sector use of ADM/ASDM systems. In identifying models of best practice on which to base the Law Commission’s approach, primacy should be given to those frameworks that can be demonstrated to:
- Address both ADM and ASDM systems
- Ensure that ADM/ASDM systems uphold existing equalities and human rights law
- Secure meaningful and effective transparency in relation to the use of ADM/ASDM systems e.g. via public registers
- Deliver certainty for public bodies, suppliers and individuals around the circumstances in which ADM and ASDM systems can be used;
- Support meaningful public engagement in determining appropriate uses of ADM/ASDM
- Focus governance at the design and deployment stage
- Are capable of managing and responding to contextual complexity
- Introduce independent external scrutiny to ensure the efficacy and accuracy of ADM/ASDM systems
- Ensure clear lines of accountability for decisions taken by ADM/ASDM systems, and secure legally enforceable rights to an explanation.
- Provide timely, appropriate, accessible and cost-effective routes to redress where this is required.