Technology Rules: The Advent of New Technologies in the Justice System (Justice and Home Affairs Committee Report)

Baroness Ludford Excerpts

Monday 28th November 2022 Grand Committee

[Baroness Ludford (LD)]

My Lords, this report produced by the committee chaired by my much-praised noble friend Lady Hamwee is both powerful and shocking. It does not mince its words. I will be quoting from it, as I cannot improve on its wording. The report is not before time—indeed, it is overdue. One can only wonder that successive Governments have neglected to introduce the reforms and protections that this report so convincingly explains are essential to protect us from breaches of equality, human rights and data protection safeguards.

The committee is a remarkably strong one, including as it does a former Home Secretary, the noble Lord, Lord Blunkett; a former National Security Adviser, the noble Lord, Lord Ricketts; a former director of Liberty, the noble Baroness, Lady Chakrabarti; and several very senior lawyers. The report says that the committee was

“taken aback by the proliferation of Artificial Intelligence tools potentially being used without proper oversight, particularly by police forces across the country.”

It warns that,

“without sufficient safeguards, supervision, and caution, advanced technologies may have a chilling effect on a range of human rights, undermine the fairness of trials, weaken the rule of law, further exacerbate existing inequalities, and fail to produce the promised effectiveness and efficiency gains.”

That is a stunning catalogue of dangers.

The report explains how public bodies and all 43 police forces are free to individually commission whatever tools they like or buy them from companies

“eager to get in on the burgeoning AI market”.

The committee found this

“particularly concerning in light of evidence we heard of dubious selling practices and claims made by vendors as to their products’ effectiveness which are often untested and unproven.”

No wonder that the committee reports that it

“uncovered a landscape, a new Wild West, in which new technologies are developing at a pace that public awareness, government and legislation have not kept up with.”

It refers to the phenomenon of “digital excitement”—one could say the delight in boys’ toys, if that were not sexist—felt by some who get their hands on a new technology product. That is of course not a good rationale for purchase. It is hardly surprising that my noble friend Lady Hamwee, in her letter to the Home Secretary, said that the committee was “disheartened” by the Home Office’s response to its “constructive conclusions and recommendations”, saying it found the Home Secretary—I think my noble friend Lady Hamwee quoted this—

“more satisfied with the current position than is consonant with the evidence”

that the committee had received. That is quite a strong message.

My noble friend Lady Hamwee said with considerable feeling that the committee

“hoped that when the House debates the report, the Minister will be able to explore with us in more depth the points that we raised, and not simply be briefed to repeat the formal response”.

We very much look forward to that more realistic response today. The Government’s response was disappointing and complacent, and failed to do justice to the quality of the evidence, the report and the committee. The Government

“was not persuaded that a new independent national body and certification system should be created. It said whilst certification worked in some contexts, it could also create false confidence and be costly. It disagreed with the idea of making transparency a statutory principle. It said … making transparency a legal duty could limit the police’s current transparency efforts to whatever would be set out in statute.”

Also, the Government said that

“it could not make the police and the judiciary undertake training on ‘meaningful interaction with technologies’. This was because training was the responsibility of the College of Policing and Judicial College, rather than the government.”

However, as the noble Baroness, Lady Sanderson of Welton, said, we oblige drivers to have a licence as well as for the car to have an MOT. The Government

“disagreed that there should be statutory ethics groups created to scrutinise the use of technologies and veto deployment … because they would not be democratically elected.”

These all seem remarkably weak points. An alternative term would be “scraping the barrel”.

The committee said that:

“While we found much enthusiasm about the potential of advanced technologies… we did not detect a corresponding commitment to any thorough evaluation of their efficacy … there are no minimum scientific or ethical standards that an AI tool must meet before it can be used in the criminal justice sphere. Most public bodies lack the expertise and resources to carry out evaluations … we risk deploying technologies which could be unreliable, disproportionate, or simply unsuitable for the task in hand.”


Are the Government happy with that situation?

The committee found the institutional landscape confused and duplicative—no wonder, with at least 30 organisations, initiatives and programmes having some input or other—and found governance arrangements complex and disconnected, while the Government are appointing still more bodies which make the picture even more crowded. The committee said:

“We have heard no evidence that the Government has taken a cross-departmental strategic approach to the use of new technologies in the application of the law … Thorough review across Departments is urgently required.”


Can the Minister tell us that that at least will happen? The report mentions that a government White Paper is supposedly in the pipeline. Can the Minister tell us the envisaged date for that?

The report has a number of important proposals on governance, oversight and evaluation to address these various deficits. One very sensible proposal is a new national body to set scientific and quality standards and certify new products against those standards. The committee recommends “evaluate centrally, procure locally”.

The committee says its

“evidence reflected organisational confusion about what guidance, regulation and legislation applied”

and argues persuasively for a strong legal framework to remedy the fact that

“users are in effect making it up as they go along.”

No wonder it uses the term “Wild West”.

The report refers to the EU artificial intelligence regulation, or “AI Act”, that is in preparation—I am not sure where it has got to—and notes that it would ban systems that pose an “unacceptable risk’”, such as social scoring and many deployments of facial recognition. I hope the Government are still willing to learn from the EU.

The committee suggests legislation to set principles, supplemented by regulations to govern the use of specific technologies. If the Government object that there is a lack of parliamentary time, I suggest at least three Bills that could and should be dropped to make space: the Northern Ireland Protocol Bill, the revocation of EU law Bill and the Bill of Rights Bill, otherwise known as the Human Rights Act destruction Bill.

The committee found the market “worryingly opaque”, with buyers often pretty ignorant about the systems that they were buying due to companies’ insistence on commercial confidentiality. It found some “dubious selling practices” and untested, unproven claims about effectiveness of the products.

The committee therefore makes a number of important proposals for increased transparency and explainability, including consultations and published impact assessments. The committee reports that there is no central register, making it virtually impossible to find out where and how these systems are being used such that parliamentarians, the media, academics and those subject to them could scrutinise and challenge them. The committee rightly called for a mandatory register.

The Government published their consultation paper Data: A New Direction just over a year ago, promising

“a bold new data regime”,

a phrase that makes me wary. I am concerned about prejudice to our data adequacy decision from the European Commission but also worried if it makes the Government less vigilant about data protection and privacy issues.

The committee said it sees

“serious risks that an individual’s right to a fair trial could be undermined by algorithmically manipulated evidence”,

with defendants and indeed courts ignorant of what technologies might have been used in their case. That is a pretty dire state of affairs.

The report raises serious concerns that bias in data collection could lead to discriminatory policing, especially in predictive policing. It is well-known, as my noble friend Lord Clement-Jones pointed out, that facial recognition technology is not sound when used on female and ethnic minority subjects because the learning algorithms have leaned more on data from white men than from other groups. The committee also warned of the danger of overpolicing through the use of predictive tools, which could become a vicious circle of concentration on poorer people in more disadvantaged areas.

The committee is highly concerned at the lack of accountability for the misuse or failure of these AI technologies and hence the lack of recourse for people who might suffer from their use. It suggests that the Government appoint a taskforce to produce guidance on consistent lines of accountability.

This is a first-class and hugely valuable report. The Government’s complacency—I could say blinkered complacency—is profoundly unwise when defects and unfairness in the deployment of AI systems could create a backlash through a loss of trust or become, in the words quoted by the noble Baroness, Lady Sanderson of Welton, “another frontier of failure.”

The glittering prize for the UK is, in the words of the report, to be

“a frontrunner in the global race for AI while respecting human rights and the rule of law.”

I hope we hear a better response than we had in June and concrete plans now from the Minister.