Use of AI by public bodies creating barriers to judicial review, says access to justice charity
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The lack of transparency around public authorities' use of artificial intelligence (AI) in decision-making is creating barriers for those wishing to challenge decisions through judicial review, the Public Law Project (PLP) has warned.
In a report titled “Missing Pieces: Transparency and Accountability in Public Body Automated (and Automated Assisted) Decision-making”, the access to justice charity claimed that a "patchwork of transparency mechanisms" is failing to provide the information in the detail, form and time required to bring such legal challenges.
The report comes as local authorities are increasingly using automated technologies, including AI, to make or support decisions in areas such as planning and data analysis, as well as for tasks such as minute-taking.
However, the report said that effective accountability "is being held back by challenges in gathering and assessing relevant information about those tools and the decisions made using them".
The report found that people are rarely told whether an automated tool has been used to make a decision, leaving them unable to effectively contest the use of such tools or decisions made using them.
It also found that information about the risk of discrimination is "especially thin", with researchers finding that just one of 125 public body reports on AI use linked to an Equality Impact Assessment.
Other barriers to gathering information included withheld Freedom of Information requests, inadequate notification requirements under data protection law, and a lack of technical capacity within public bodies themselves.
The PLP said these information gaps create a "vicious cycle" in judicial review litigation, adding: "Without enough information to assess the merits of a case, claimants find it too risky to issue a claim so never reach the stage when full disclosure is required."
To help tackle these problems, the report made 10 recommendations, including that:
- Governance, engagement and design processes should be informed by public law considerations from the outset.
- The Algorithmic Transparency Recording Standard (ATRS) should be placed on a statutory footing to strengthen monitoring, compliance and enforcement.
- A legal requirement should be introduced to notify people when and how automated systems have been used to support individual decisions about them, alongside enforceable rights to information about those systems.
The report, which was funded by the Nuffield Foundation, said: "Government has been clear about the importance of transparency in public body ADM systems, including for the purpose of ensuring accountability and contestability.
"However, this research has found that while there is a patchwork of existing transparency rights and requirements that apply to these systems, they individually and collectively fail to provide the information in the detail, form and time required to effectively challenge ADM systems (and the decisions made using them) by way of judicial review.
"While this includes gaps, which we think should be filled...., significant improvement could be made through improved compliance with and enforcement of the requirements already in place."
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