“Human review” of decisions made by computer algorithms will be quietly axed under a bonfire of EU laws, MPs have been warned – risking a repeat of the 2020 “A-levels fiasco”.
A former government lawyer has raised the alarm over plans to dilute GDPR data rules, following Brexit, suggesting the change will be slipped through without scrutiny in the Commons.
A single Bill will remove all unwanted “retained law” – using backstage regulations, behind MPs’ backs – with arch-Brexiteer Jacob Rees-Mogg now in charge of the process.
Eleonor Duhs, head of data privacy at the law firm Bates Wells and a lawyer who worked on the 2018 EU Withdrawal Act, branded the idea “dangerous” and criticised the likely lack of scrutiny.
“Changing data protection law is very central to the government’s post-Brexit policy,” she told the Commons European Scrutiny committee.
She added: “We all remember the A-levels fiasco in 2020, when an algorithm decided what A-level students’ results should be and research showed that the poorest students received worse marks.”
Ms Duhs said: “These sorts of decisions are really quite dangerous, potentially, and the Information Commissioner’s Office said it didn’t agree that this human review of automated decision making should be removed.”
Ministers could claim it was “minor and technical”, but, the data protection lawyer warned: “It isn’t minor in technical – it’s really important that parliament is able to scrutinise it, able to debate this change.”
Fears are growing over the use of a single Bill to delete retained law, to prevent the need for different legislation that “would take years”, No 10 has admitted.
Tearing it up could come at a price, if divergence triggers disputes under the Brexit trade deal – potentially allowing Brussels to curb access to EU markets for British firms.
This week’s mini-reshuffle gives responsibility to Mr Rees-Mogg – who has suggested EU safety standards cut be cut to levels in India – as minister “for Brexit opportunities”.
Article 22 of GDPR guarantees that people can seek a human review of an algorithmic decision, such as whether to award a loan, or of a recruitment aptitude test to filter job candidates.
The proposal to remove it was made in a consultation last September, having first been put forward by a deregulatory task force led by Iain Duncan Smith, another hard Brexit supporter.
The document notes “the use of automated decision making is likely to increase greatly in many industries in the coming years”.
It then adds: “The need to maintain a capability to provide human review may, in future, not be practicable or proportionate, and it is important to assess when this safeguard is needed.”
Jonathan Jones, the government’s former legal chief who quit over Brexit policy, echoed the criticism that MPs must be allowed to scrutinise the removal of long-standing laws.
He warned of “hundreds of other” examples of legal protections that could be quietly ditched, calling for “meaningful democratic input”.
“I’m a bit suspicious of references to special mechanisms, or changes being made easier or faster,” he warned, adding: “Secondary legislation typically gets minimal scrutiny by parliament.”
