Judicial Review of AI in UK Government: Two Emergent Forms of Legal Risk

This chapter argues that the development of AI and automation in the UK public sector is occurring in an unpredictable public law environment, in significant part because there have been so few judicial review judgments establishing how existing administrative law applies. We argue that two distinct forms of risk are emerging as a result. One risk is that public bodies are proliferating the use of systems that they will later realise to be unlawful, which could create serious and wide-scale implementation problems for public bodies. Another risk is that systems of ambiguous legality become so deeply embedded in bureaucratic practice that, by the time meaningful judicial review occurs, the courts will likely be placed in an invidious position. We conclude the chapter with some observations about how-beyond the growing debate about the possibility of new statutory forms of regulation-ensuring ventilation of claims, non-court redress mechanisms, and the flexibility of judicial review remedies might all have a role to play in allowing the public law system, and government, to effectively to manage these risks.