Throughout December 2024, members of the House of Lords took part in Committee Stage – a detailed, line by line, scrutiny – of the Data (Use and Access) Bill. The Data Bill is an incredibly important piece of legislation that will have a huge impact on the way data is used in the UK, potentially unlocking opportunities and guaranteeing important protections for citizens. The Government have said the Bill will “harness the power of data for economic growth, support a modern digital government, and improve people’s lives”. All admirable goals that speak to the power of data in an age of AI and automated decision-making.
One of the more controversial elements of the Bill is Clause 80 which proposes changes to Article 22 of UK GDPR and which my colleague Lord Clement Jones said “won’t wash”.
Currently, Article 22 of the UK GDPR, is aligned to GDPR and enshrines the right not to be subject to a decision based on solely automated processing that has legal or otherwise significant effects on the individual concerned.
Clause 80 introduces a provision that allows the Secretary of State to use regulations to define what constitutes “meaningful human involvement” and “a similarly significant effect for the data subject”. Both these terms are critical in defining the scope of Article 22 protections and have also been the subject of uncertainty and debate, due to limited existing case law. “Meaningful human involvement” raises important questions around the impact of the automation bias, opacity, competence and authority of the human involved. “A similarly significant effect” raises equally important questions, for example, about how the law applies to decision processes with multiple stages.
The only mechanism for clarifying these terms in the Bill is the power vested in the Secretary of State to define them in the context of data protection and automated decision-making. These are not merely technical changes: they represent significant policy decisions and may put the UK out of kilter with the EU.
A raft of amendments were introduced to try to deal with these concerns. Many by Lord Clement-Jones who has also introduced a Private Members Bill on Public Authority and Automated Decision-Making Systems Bill in which he explained his thinking.
“The speed and volume of decision-making that new technologies will deliver is unprecedented. They have the potential to offer significant benefits, including improved efficiency and cost effectiveness in government operations, enhanced service delivery and resource allocation, better prediction and support for vulnerable people and increased transparency in public engagement.
However, the rapid adoption of AI in the public sector also presents significant risks and challenges, with the potential for unfairness, discrimination and misuse through algorithmic bias and the need for human oversight, a lack of transparency and accountability in automated decision-making processes and privacy and data protection concerns”.
Lord Clement-Jones, December 13 2024, House of Lords,
I supported the spirit of all the amendments put forward to address the concerns about the watering down of Article 22 protections and proposed two of my own amendments which both focussed on a fundamental principle that these technologies should be in our human hands, with our human values feeding into human oversight: human in the loop and indeed, where appropriate, human over the loop.
My first proposed that if someone is subject to an automated decision then they have the right to a personalized explanation of that decision. That explanation should be accessible in its being in plain language, not having a cost attached to it and not being in any sense technically or technologically convoluted or opaque. That would be relatively straightforward to achieve, but the positive impact for all citizens would be significant.
My second again speaks to the point about “meaningful human engagement”.
It is not enough to simply say that there are individuals within an organisation responsible for the provision of personalized explanations for automated decisions; it is critical that those individuals have the training, the capabilities and, perhaps most importantly, the authority within that organisation to make a meaningful impact regarding those personalized explanations. If not, this measure may have a small voice but would have absolutely no teeth when it comes to the citizen.
In short, ADM is proliferating so we need to ensure that we have a symmetrical situation for citizens, for consumers, and for anyone who finds themselves in any domain or sector of our economy and society. We must assert the principles: human-led, human in the loop, “Our decisions, our data”, and “We determine, we decide, we choose”. That is how I believe we can have an effective, positive, enabling and empowering AI future. I look forward to the Minister’s comments.
Lord Holmes of Richmond, December 16 2024, House of Lords
As pointed out by Lord Clement-Jones concerns about Clause 80 are shared by a great number of civil society organisations, such as Big Brother Watch, the Ada Lovelace Institute, Connected by Data, Defend Digital Me, Liberty, the Open Rights Group, Privacy International, the Public Law Project and Worker Info Exchange.
Another issue raised during the debate was the Algorithmic Transparency Recording Standard, which was created in 2022 and is intended to offer a consistent framework for public bodies to publish details of the algorithms used in making these decisions. Six records were published at launch, and from the latest update in December 2024 there were just 23 records – far fewer than the 74 areas the Public Law Project’s TAG project found ADM to be being used. There is clearly a shortfall in the implementation and rolling out of the use of the ATRS across government departments.
Safeguards around automated decision-making are critical to public trust in AI and I am sure this is an important area that will be revisited during report stage.
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