Co Producing Automated Public Decision Making

Co-Producing Automated Public Decision-Making Delegation and the New Machinery of Government Speaker: Dr Oliver Butler, University of Nottingham Date: May 10, 2024 Non-Delegation - Starting point - Parliament gave you the power, not someone else! - Transparency, accountability, contestability - Generous exceptions: • Courts treat departmental civil servants as ministerial "alter ego" • Courts imply powers to delegate • Some statutory: Deregulation and Contracting Out Act 1994 Response To Changing Administrative State - CARLTONA v Commissioners of Works: • "In the administration of government in this country the functions which are given to ministers (and constitutionally properly given to ministers because they are constitutionally responsible) are functions so multifarious that no minister could ever personally attend to them" • Otherwise... "public business could not be carried on" - Non-delegation as a response to "changing machinery of government" - Trend towards facilitation/tolerance of delegation - Driven by perceived impossibility of non-delegation in light of scale of decisionmaking in traditional bureaucratic hierarchies "Modern machinery of government" Supervised machine learning and decision-support Emerging Machinery of Government - PLP "Tracking Automated Government" project using FOIA requests - 2023 register contains 55 automated decision-making tools in use - Low transparency/many lack public impact assessments - Includes policing, immigration, benefits TAG Examples: Prediction - Common Risk Engine • - Modern Slavery Risk Profiles • - DWP fraud and error risk scoring of Universal Credit Claims Home Office identification of potential victims and perpetrators Rent Sense • Local authority predictive analytics for social housing tenant risk of failure to pay rent TAG Examples: Classification - Prisoner Categorization • Ministry of Justice algorithm to assign provisional prisoner category for review by a prison officer - Project Alpha • Home Office, NPCC, Metropolitan Police identification of gang members using intelligence from social media platforms - Visa Streaming Algorithm • Home Office classification tool (green/amber/red) to determine grade of decision-maker and level of scrutiny applied to visa applications Can Non-Delegation Adapt To ADM? - Supervised machine learning - Augmented and automated decision-making - Co-produced post-procurement by developers and public officials - Procurement rules do little: Sanchez-Graells (2024) - Complex and opaque supply chains: Cobbe (2021) Automated Decision-Making in Government - Prediction, classification, optimization algorithms - Supervised machine learning - variety of statistical methods - Training dataset, testing dataset, live dataset - Different measures of effectiveness, accuracy, confidence, bias, and false positives/negatives What Are The Important “Design Choices"? - Composition of the training/testing datasets - Choice of machine learning methods - Choices based on confidence, bias, false positives/negatives - Choice of deployment context What Are The Important "Design Choices"? - Choices are not simply technical questions about the "best" method - Trade offs between groups and values - They are, in that sense, political and not neutral - What is the appropriate degree of delegation to developers? LIMITATIONS OF NON-DELEGATION DOCTRINE Three Key Limitations 1. Focus on the delegation of the "final decision" 2. Tendency to analyses delegation as "all or nothing" 3. Scope of the non-delegation principles Focus On The "Final Decision" - Lavender v Minister of Housing and Local Government - fettering - R v SSHD, ex parte Oladehinde - "momentum... difficult to reverse" but only an "initial decision" - Noon v Matthews - "less strict" if "not final or conclusive" - Limits application of non-delegation to augmented decision-making - Potentially over-restrictive of fully automated decision-making - Missed opportunities to scrutinize design choices An "All Or Nothing" Approach - Examples - Carltona/Sherwin/Haw/Oladehinde - Amplifies importance of "inevitability" of delegation - ADM is attractive precisely where there are large case loads - Limits ability to consider important design choices of limited scope - Reduces the significance of "seriousness" of an "isolated and vitally important matter" [Skinner - accuracy of alcohol breath tests] - R v Adams - consideration to be taken into account - Adams left Skinner untouched Scope Of Non-Delegation Principles - Very permissive of delegation internal to Government - R v SSHD, ex p Sherwin/Castle v DPP - framework documents - Unless individual holds power due to "personal qualifications" - R (Chief of the West Midlands Police) v Birmingham Justices - Or where separation is a safeguard - R v SSHD, ex parte Oladehinde delegation would conflict with discharge of specific statutory duties - Very permissive of delegation internal to Government - Reflected in level of scrutiny applied to decisions to delegate - R (Chief of the West Midlands Police) v Birmingham Justices - "a" vs "the" proper and appropriate agent - R v SSHD, ex parte Doody - applied a rationality test Scope Of Carltona Principle - Very restrictive of delegation externally to Government - Bourgass - "constitutional separation" of departments/office holders - Deregulation and Contracting Out Act 1994 An Alternative Approach - Noon v Matthews – alternative approach - The extent of delegation was in issue - Policy vs operational distinction used by the court - Easier to question the "inevitability" of delegation HOW TO PRESERVE TRANSPARENCY AND ACCOUNTABILITY? Adapting to the Modern Machinery? - How to identify non-delegable "important design decisions"? - For the courts or for Parliament? - A matter for procuring entities to consider? - What role for developers in responsible (co-)design?