April 3, 2023
In its National AI Strategy, the Government committed to developing a pro-innovation national position on governing and regulating AI and it outlined its position in a policy paper in 2022. The Government has now published a White Paper setting out its proposals for implementing what it says is a “proportionate, future-proof and pro-innovation framework for regulating AI”.
The UK Science and Technology Framework sets out the Government’s strategic vision to “make the UK a science and technology superpower by 2030”. It identifies AI as one of five critical technologies and notes that regulation plays an important role in creating an environment for AI to flourish.
Through this approach to AI regulation, the Government says it will “help the UK harness the opportunities and benefits that AI technologies present” to “drive growth and prosperity by boosting innovation and investment and building public trust in AI”. In the Government’s view, this approach will “strengthen the UK’s position as a global leader in AI, by ensuring the UK is the best place to develop and use AI technologies”.
The Government says that it is taking an “adaptable approach to regulating AI”. Instead of giving responsibility for AI governance to a new single regulator, it will empower existing regulators, such as the Health and Safety Executive, Equality and Human Rights Commission and Competition and Markets Authority, to come up with tailored, context-specific approaches that suit the way AI is being used in their sectors.
The White Paper outlines five clear principles that these regulators should consider to best facilitate the safe and innovative use of AI in the industries they monitor:
- safety, security and robustness: applications of AI should function in a secure, safe and robust way where risks are carefully managed;
- transparency and explainability: organisations developing and deploying AI should be able to communicate when and how it is used and explain a system’s decision-making process in an appropriate level of detail that matches the risks posed by the use of AI;
- fairness: AI should be used in a way which complies with the UK’s existing laws, for example the Equality Act 2010 or UK GDPR, and must not discriminate against individuals or create unfair commercial outcomes;
- accountability and governance: measures are needed to ensure there is appropriate oversight of the way AI is being used and clear accountability for the outcomes; and
- contestability and redress: people need to have clear routes to dispute harmful outcomes or decisions generated by AI.
This represents a significantly different approach to that taken by the EU in its rule-based EU AI Act and offers a pragmatic and flexible approach which is, in theory, capable of meeting the speed with which the technology is developing.
The Government says that over the next 12 months regulators will issue practical guidance to organisations, as well as other tools and resources, such as risk assessment templates, to set out how to implement these principles in their sectors. When parliamentary time allows, legislation might be introduced to ensure regulators consider the principles consistently, through the implementation of a statutory duty. However, at the moment, no new legislation is proposed.
The Government is consulting on this White Paper. The deadline for responses is 21 June 2023. As part of this consultation, the Government is also seeking views on new processes to improve coordination between regulators as well as monitor and evaluate the AI framework, making changes to improve the efficacy of the approach if needed.
The Secretary of State for the DSIT has also written to the Chief Executives of the Digital Regulation Cooperation Forum (DRCF) member regulators (the CMA, the FCA, the ICO and Ofcom), setting out the regulatory priorities of the DSIT, building on the pro-innovation approach outlined in the Government’s Plan for Digital Regulation and Digital Strategy, and identifying important opportunities for the DRCF to support the implementation of the new AI regulatory framework.
A regulations-based approach is very much welcome – and the framework and principles in the White Paper were first identified in the Manifesto for Responsible AI, published in the book, AI on Trial. The approach offers the ability to keep pace with technological developments and respond to how the technology is deployed, which is fundamental.
Criticism of principles-based regulation is frequently focused on the lack of certainty it provides. The approach here is no exception to this rule. All attention will therefore be on the regulators and the guidance they introduce. In particular:
- will sufficient resources be made available not only to educate regulators as to the technology, but to implement, monitor compliance and intervene where appropriate to correct behaviours?
- how do we deal with technologies, such as autonomous vehicles and the advent of large language models such as ChatGPT and Bard, which do not naturally fall under the remit of any one regulator?
- crucially, in the absence of the oversight of an independent AI Agency (a notable omission from the paper) is it possible for a coherent approach to emerge from potentially competing and conflicting interpretations of the principles?
We should expect these areas to be addressed and developed further in consultation.
The Government also says that it will launch a new sandbox, where businesses can test how regulation could be applied to AI products and services, to support innovators bringing new ideas to market without being blocked by rulebook barriers. As identified in the Manifesto for Responsible AI, testing of all products and services before launch is a vital way of understanding how the technology will perform and securing fairness – confirming that the technology should not adversely impact a particular part of society in a discriminatory way. Against this background, the sandbox concept does not go far enough and certainly the £2m of funding looks anaemic.
The DSIT and Office for Artificial Intelligence has also published evidence to support the analysis of impacts for AI governance.
To read the Government’s press release in full and for links to the White Paper and consultation, click here. To read the letter to the DRCF, click here. To access the evidence to support the analysis of impacts for AI governance, click here. AI on Trial and the Manifesto for Responsible AI was published by Bloomsbury Professional, June 2022, click here.