UK: Regulation Of Artificial Intelligence And Big Data In The UK

Last Updated: 21 August 2019
Article by Matt Hervey and John P. Cooper

As the seat of the first Industrial Revolution, the UK has a long history of designing regulatory solutions to the challenges posed by technological change. However, regulation has often lagged behind - sometimes very far behind - new technology. Artificial Intelligence (AI) is proving no exception to this historical trend.

Is a specialist regulator needed?

In the first place, there is currently no consensus on whether the development of AI requires its own dedicated regulator or specific statutory regime. Gathering evidence for its May 2018 report "AI in the UK", the Select Committee on AI of the House of Lords found that opinions were divided into three camps: "those who considered existing laws could do the job; those who thought that action was needed immediately; and those who proposed a more cautious and staged approach to regulation"1.

The first of these categories - where it was argued that existing laws were sufficient - included strong interest groups such as TechUK (a major trade association) and the Law Society of England and Wales. The Committee did not explicitly endorse their view, but it did reject the second option of creating a new regulator, concluding that "AI-specific regulation, at this stage, would be inappropriate"2.

The Committee therefore favoured no more than an incremental approach to new regulation. Nonetheless, the caveat "at this stage" is important. The conclusion that AI-specific regulation is inappropriate is not universally accepted, and could easily change over time as difficult cases of algorithmic decision-making become more widely reported.

Moreover, by the time the Committee reported, the Government had already announced the creation of a Centre for Data Ethics and Innovation (CDEI), whose remit includes an ongoing inquiry into these questions.

The role of the CDEI

The establishment of the CDEI formed part of the UK Industrial Strategy, set out in November 20173. It is therefore explicitly viewed as a key part of the environment that will make the UK an attractive place for AI developers.

The CDEI was created in large part as a response to two reports issued in the previous year by the Science and Technology Committee of the House of Commons. In the first of these reports, entitled "The Big Data Dilemma", the Committee proposed a body with the remit to address "the growing legal and ethical challenges associated with balancing privacy, anonymisation, security and public benefit"4 .

In the second report, "Robotics and Artificial Intelligence", the Committee recommended the creation of a Commission on AI that would focus on "examining the social, ethical and legal implications of recent and potential developments in AI ... as well as advising the Government of any regulation required on limits to its progression"5.

In practice, the role of the CDEI combines both of these functions. As set out in the Industrial Strategy, its overriding purpose is to "review the existing governance landscape and advise the government on how we can enable and ensure ethical, safe and innovative uses of data, including AI".

It took a further year, until November 2018, before the CDEI was established and the Government published its formal terms of reference6. These include: (i) "reviewing the existing regulatory framework to identify gaps"; (ii) "identifying steps to ensure that the law, regulation and guidance keep pace with developments"; and (iii) "publishing recommendations to government on how it can support safe and ethical innovation in data and AI through policy and legislation".

The current regulatory landscape

It is important to note that the CDEI is not a regulator, nor even a proto-regulator, for AI. It is an advisory body to the Government whose work will cover the question of whether further regulatory provision needs to be made in respect of AI, but which itself has no regulatory powers. While the suggestion is that the CDEI will in due course be established on a statutory basis, there is no proposal that this fundamental limitation on its role will change.

Moreover, its resources are limited and its remit extends far beyond questions relating to AI. At the time of writing, the CDEI has recently published its first annual work programme7. Within this, the main work of direct relevance is an inquiry into algorithmic bias, which is not due to report to the Government until March 2020.

The current UK regulatory landscape in relation to AI can therefore be summarised broadly as follows.

First, there is no specific legal provision for the regulation of the development of AI or the use of AI applications; however, a range of existing regulatory regimes may overlap this territory and be used to some extent to regulate these activities.

Of these regimes, the most significant single case is the data protection regime overseen by the Information Commissioner's Office (ICO). It is important both because it exhibits the greatest overlap of subject matter with algorithmic decision-making by AI, and because the ICO is one of the few regulators whose remit extends to other branches of Government, and therefore has the ability to regulate uses of AI in the public as well as the private sector. Its role and remit is considered more fully below.

However, the ICO is not unique in having some regulatory responsibility in this area. This is also true for the UK Equality and Human Rights Commission, Competition and Markets Authority, Office of Communications and a range of other sector regulators whose remit - and existing array of regulatory tools - provides them with the power to intervene when the use of AI affects citizens or consumers within the territory covered by their statutory powers.

The question is whether those regulators will have the institutional capacity and expertise to use those powers in respect of AI, or will sufficiently prioritise doing so against the competing demands on their limited resources. The answer is that this is highly doubtful. In its May 2018 report on "Algorithms in Decision-Making", the House of Commons Science and Technology Committee thought that this was an important area for exploration by the CDEI8, although it does not feature as a key aspect of that body's initial work programme.

Second, the UK can be expected to explore, over time, whether additional detailed regulatory arrangements need to be made for specific AI use-cases. Of these, currently the most important and advanced piece of work relates to the use of AI in autonomous vehicles (AVs). In March 2018, the Government referred the regulatory framework for AVs to the Law Commission for England and Wales, and the Scottish Law Commission - bodies whose role is to examine major areas of law reform.

These bodies have already carried out a preliminary consultation and are now in the detailed policy-consideration phase of their work9. However, they are not due to report to the Government until March 2021 on their analysis and final recommendations. Moreover, like the CDEI, they are advisory and not law-making bodies. Although their report will have significant weight, and even if its recommendations were to be immediately accepted by the Government (which is far from certain), it would be at least an additional two or three more years before legislation to implement them could begin to find its way onto the statute book.

Third, it is inevitable that there will continue to be significant scrutiny of the adequacy of the regulation of AI, both by the nascent CDEI and by a range of Parliamentary select committees with an interest in this area (as well as many interested parties in the private sector).

While none of these bodies has the power to legislate to fill regulatory gaps that emerge, they may be expected, over time, to identify issues that Government, or existing regulatory bodies, will then be under pressure to address.

Conclusion

A great deal has been written and said about the regulation of AI in the UK. However, the reality is that there is currently no overall coherent approach to the regulatory challenges posed by the rapid development of AI applications.

The current landscape involves pressing into service existing regulators to use their powers - none of which were designed to address the specific issues raised by AI - as the need arises, while at the same time creating new institutional capacity (in the form of the CDEI) to keep the area under review, and subjecting specific important use-cases (like AVs) to a more detailed process of policy consideration.

In the long run, a more coherent regulatory environment may develop out of this incremental approach. However, all things considered, it is hard to avoid the truth of the judgment expressed by Jacob Turner that, despite the amount of fine words expressed on the subject, with respect to the UK's regulation of AI, "specific policy developments remain elusive"10.

This text first appeared in the UK chapter of Global Legal Insights - AI, Machine Learning & Big Data 2019, published by Global Legal Group, Ltd. Download the entire chapter here.

Footnotes

1 See AI in the UK: ready, willing and able? (paragraph 373).

2 Ibid., paragraph 386.

3 See Industrial Strategy - Building a Britain fit for the future (at page 40).

4 See The big data dilemma (paragraph 102).

5 See Robotics and artificial intelligence (paragraph 73).

6 See Centre for data ethics and innovation - Government response to consultation (pages 16-18).

7 See The Centre for Data Ethics and Innovation (CDEI) 2019/ 20 Work Programme.

8 See Algorithms in decisionmaking (paragraph 97).

9 See Law Commission - Automated Vehicles.

10 Robot Rules - Regulating Artificial Intelligence (1st ed. 2019), page 227.

Read the original article on GowlingWLG.com

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.

To print this article, all you need is to be registered on Mondaq.com.

Click to Login as an existing user or Register so you can print this article.

Authors
Events from this Firm
26 Sep 2019, Seminar, London, UK

Providing GCs, Heads of Legal and senior in-house lawyers with timely, topical and practical legal advice on a variety of topics.

8 Oct 2019, Seminar, Birmingham, UK

Supporting the development of paralegals, trainees and lawyers of up to five years' PQE by providing valuable knowledge and guidance together with practical tips.

10 Oct 2019, Seminar, London, UK

Supporting the development of paralegals, trainees and lawyers of up to five years' PQE by providing valuable knowledge and guidance together with practical tips.

 
In association with
Related Topics
 
Related Articles
 
Related Video
Up-coming Events Search
Tools
Print
Font Size:
Translation
Channels
Mondaq on Twitter
 
Mondaq Free Registration
Gain access to Mondaq global archive of over 375,000 articles covering 200 countries with a personalised News Alert and automatic login on this device.
Mondaq News Alert (some suggested topics and region)
Select Topics
Registration (please scroll down to set your data preferences)

Mondaq Ltd requires you to register and provide information that personally identifies you, including your content preferences, for three primary purposes (full details of Mondaq’s use of your personal data can be found in our Privacy and Cookies Notice):

  • To allow you to personalize the Mondaq websites you are visiting to show content ("Content") relevant to your interests.
  • To enable features such as password reminder, news alerts, email a colleague, and linking from Mondaq (and its affiliate sites) to your website.
  • To produce demographic feedback for our content providers ("Contributors") who contribute Content for free for your use.

Mondaq hopes that our registered users will support us in maintaining our free to view business model by consenting to our use of your personal data as described below.

Mondaq has a "free to view" business model. Our services are paid for by Contributors in exchange for Mondaq providing them with access to information about who accesses their content. Once personal data is transferred to our Contributors they become a data controller of this personal data. They use it to measure the response that their articles are receiving, as a form of market research. They may also use it to provide Mondaq users with information about their products and services.

Details of each Contributor to which your personal data will be transferred is clearly stated within the Content that you access. For full details of how this Contributor will use your personal data, you should review the Contributor’s own Privacy Notice.

Please indicate your preference below:

Yes, I am happy to support Mondaq in maintaining its free to view business model by agreeing to allow Mondaq to share my personal data with Contributors whose Content I access
No, I do not want Mondaq to share my personal data with Contributors

Also please let us know whether you are happy to receive communications promoting products and services offered by Mondaq:

Yes, I am happy to received promotional communications from Mondaq
No, please do not send me promotional communications from Mondaq
Terms & Conditions

Mondaq.com (the Website) is owned and managed by Mondaq Ltd (Mondaq). Mondaq grants you a non-exclusive, revocable licence to access the Website and associated services, such as the Mondaq News Alerts (Services), subject to and in consideration of your compliance with the following terms and conditions of use (Terms). Your use of the Website and/or Services constitutes your agreement to the Terms. Mondaq may terminate your use of the Website and Services if you are in breach of these Terms or if Mondaq decides to terminate the licence granted hereunder for any reason whatsoever.

Use of www.mondaq.com

To Use Mondaq.com you must be: eighteen (18) years old or over; legally capable of entering into binding contracts; and not in any way prohibited by the applicable law to enter into these Terms in the jurisdiction which you are currently located.

You may use the Website as an unregistered user, however, you are required to register as a user if you wish to read the full text of the Content or to receive the Services.

You may not modify, publish, transmit, transfer or sell, reproduce, create derivative works from, distribute, perform, link, display, or in any way exploit any of the Content, in whole or in part, except as expressly permitted in these Terms or with the prior written consent of Mondaq. You may not use electronic or other means to extract details or information from the Content. Nor shall you extract information about users or Contributors in order to offer them any services or products.

In your use of the Website and/or Services you shall: comply with all applicable laws, regulations, directives and legislations which apply to your Use of the Website and/or Services in whatever country you are physically located including without limitation any and all consumer law, export control laws and regulations; provide to us true, correct and accurate information and promptly inform us in the event that any information that you have provided to us changes or becomes inaccurate; notify Mondaq immediately of any circumstances where you have reason to believe that any Intellectual Property Rights or any other rights of any third party may have been infringed; co-operate with reasonable security or other checks or requests for information made by Mondaq from time to time; and at all times be fully liable for the breach of any of these Terms by a third party using your login details to access the Website and/or Services

however, you shall not: do anything likely to impair, interfere with or damage or cause harm or distress to any persons, or the network; do anything that will infringe any Intellectual Property Rights or other rights of Mondaq or any third party; or use the Website, Services and/or Content otherwise than in accordance with these Terms; use any trade marks or service marks of Mondaq or the Contributors, or do anything which may be seen to take unfair advantage of the reputation and goodwill of Mondaq or the Contributors, or the Website, Services and/or Content.

Mondaq reserves the right, in its sole discretion, to take any action that it deems necessary and appropriate in the event it considers that there is a breach or threatened breach of the Terms.

Mondaq’s Rights and Obligations

Unless otherwise expressly set out to the contrary, nothing in these Terms shall serve to transfer from Mondaq to you, any Intellectual Property Rights owned by and/or licensed to Mondaq and all rights, title and interest in and to such Intellectual Property Rights will remain exclusively with Mondaq and/or its licensors.

Mondaq shall use its reasonable endeavours to make the Website and Services available to you at all times, but we cannot guarantee an uninterrupted and fault free service.

Mondaq reserves the right to make changes to the services and/or the Website or part thereof, from time to time, and we may add, remove, modify and/or vary any elements of features and functionalities of the Website or the services.

Mondaq also reserves the right from time to time to monitor your Use of the Website and/or services.

Disclaimer

The Content is general information only. It is not intended to constitute legal advice or seek to be the complete and comprehensive statement of the law, nor is it intended to address your specific requirements or provide advice on which reliance should be placed. Mondaq and/or its Contributors and other suppliers make no representations about the suitability of the information contained in the Content for any purpose. All Content provided "as is" without warranty of any kind. Mondaq and/or its Contributors and other suppliers hereby exclude and disclaim all representations, warranties or guarantees with regard to the Content, including all implied warranties and conditions of merchantability, fitness for a particular purpose, title and non-infringement. To the maximum extent permitted by law, Mondaq expressly excludes all representations, warranties, obligations, and liabilities arising out of or in connection with all Content. In no event shall Mondaq and/or its respective suppliers be liable for any special, indirect or consequential damages or any damages whatsoever resulting from loss of use, data or profits, whether in an action of contract, negligence or other tortious action, arising out of or in connection with the use of the Content or performance of Mondaq’s Services.

General

Mondaq may alter or amend these Terms by amending them on the Website. By continuing to Use the Services and/or the Website after such amendment, you will be deemed to have accepted any amendment to these Terms.

These Terms shall be governed by and construed in accordance with the laws of England and Wales and you irrevocably submit to the exclusive jurisdiction of the courts of England and Wales to settle any dispute which may arise out of or in connection with these Terms. If you live outside the United Kingdom, English law shall apply only to the extent that English law shall not deprive you of any legal protection accorded in accordance with the law of the place where you are habitually resident ("Local Law"). In the event English law deprives you of any legal protection which is accorded to you under Local Law, then these terms shall be governed by Local Law and any dispute or claim arising out of or in connection with these Terms shall be subject to the non-exclusive jurisdiction of the courts where you are habitually resident.

You may print and keep a copy of these Terms, which form the entire agreement between you and Mondaq and supersede any other communications or advertising in respect of the Service and/or the Website.

No delay in exercising or non-exercise by you and/or Mondaq of any of its rights under or in connection with these Terms shall operate as a waiver or release of each of your or Mondaq’s right. Rather, any such waiver or release must be specifically granted in writing signed by the party granting it.

If any part of these Terms is held unenforceable, that part shall be enforced to the maximum extent permissible so as to give effect to the intent of the parties, and the Terms shall continue in full force and effect.

Mondaq shall not incur any liability to you on account of any loss or damage resulting from any delay or failure to perform all or any part of these Terms if such delay or failure is caused, in whole or in part, by events, occurrences, or causes beyond the control of Mondaq. Such events, occurrences or causes will include, without limitation, acts of God, strikes, lockouts, server and network failure, riots, acts of war, earthquakes, fire and explosions.

By clicking Register you state you have read and agree to our Terms and Conditions