Law Commission to review public sector use of AI in automated decisions

The commission also announced aims to review the legislation around managing housing estates, ownerless land, agricultural tenancies, and commercial leasehold, among other legislative areas.

The new projects – which were detailed in the Commission’s 14th Programme of Law Reform – will join the Commission's 17 ongoing projects, all aimed at modernising and simplifying the law in areas from crime and commercial law to property and public law.

Automated decision making (ADM) encompasses decisions made by or for public bodies using algorithmic processes and artificial intelligence. These processes involve varying degrees of human input and oversight.

The report noted that there is no specific legal framework governing the use of ADM by the state to make decisions affecting the public, as public law "developed to ensure the accountability of human officials and not automated systems".

The report said that fundamental legal questions – such as whether it is lawful to use an ADM system to discharge a particular statutory function – remain unanswered. It added that judicial review is not well-suited to scrutinising decisions made using ADM.

A "coherent legal framework to facilitate good and lawful ADM can reasonably be described as the most significant current challenge in public law", the report said.

The Commission plans to make recommendations about the legal framework necessary to promote good, lawful ADM. The project may recommend legislative change, if needed, as well as focusing on when ADM systems can be effectively regulated by the common law or governmental guidance.

It said that it may also recommend a best practice guide be produced on the lawful use of ADM.

The Commission's plans to look at legislation around the management of housing estates will meanwhile consider whether the right to manage (RTM) regime that benefits leaseholders in blocks of flats could be adapted to apply to housing estates. It will also explore any additional or alternative solutions to the problems of estate management.

Ownerless land will also come under review, the Commissioner announced.

Such land could include property, for example, that was owned by a company that has since been dissolved.

This type of property typically passes to the Crown. Depending on its location, it may pass to the Duchies of Cornwall or Lancaster, while other land transfers to the Treasury Solicitor as bona vacantia (the Crown's ancient right to "unowned goods").

The Treasury Solicitor has a power of disclaimer. If a freehold is disclaimed, the land reverts ("escheats") to the Crown Estate, as the Crown is presumed to be the ultimate owner of land in England and Wales.

The Commission's review aims to analyse instances where plots of land with development potential or which present environmental or safety hazards become ownerless.

The report referenced instances where the current "antiquated" law resulted in blocks of flats, dangerous industrial sites and mines, recycling centres, reservoirs, and city landmarks becoming ownerless.

The law around agricultural tenancy will also come under review as the legislation "may not correctly balance the interests of landowners and tenants.

It also suggested that the lack of security of tenure and often short-term nature of many tenancies "is a barrier to investment and the viability of some tenanted farm businesses".

Problems around commercial leasehold are also set to be reviewed by the Commission.

The Commission said it will review issues with the Landlord and Tenant (Covenants) Act 1995 and rights of first refusal under the Landlord and Tenant Act 1987 (in so far as the law relates to commercial premises).

Law Commission Chair Sir Peter Fraser said: "With this 14th Programme of Law Reform, we are laying out a substantial body of work that will bring the existing law up to date. As always, there has been great interest in our Programme, and I would like to thank the hundreds of individuals and organisations who responded to our consultation. It is because of these contributions that we have been able to develop this diverse and forward-looking Programme of Law.

"Our values are independence, integrity and expertise. In all our projects, we endeavour to provide high-quality recommendations for law reform for Parliament to consider so that the law remains modern and relevant to our changing society."

Adam Carey