Farming: Agricultural tenancies project
The Law Commission has launched a project to examine whether new legislation is needed on automated decision-making (ADM) by public bodies, using algorithms and artificial intelligence (AI).
Developing a legal framework for ADM could “reasonably be described as the most significant current challenge in public law”, and judicial review was “not well-suited” to scrutinising automated decisions, it said.
The project was one of 10 announced by the Law Commission in its 14th programme of law reform, with the others ranging from agricultural tenancies and elements of commercial leases to deeds and desecration of a corpse.
On ADM, it said: “There is no specific legal framework governing the use of ADM by the state to make decisions affecting the public. Public law developed to ensure the accountability of human officials and not automated systems.
“Fundamental legal questions – such as whether it is lawful to use an ADM system to discharge a particular statutory function – remain unanswered.”
As ADM became “more and more prevalent”, the legal principles of the 20th century needed to adapt to the technological advances of the 21st century.
“There are legal risks and potential harms to the public and public confidence in government when ADM goes wrong.”
Project outcomes could include “an overarching legal framework for ADM”, bespoke law reform in particular departmental areas or a best practice guide on the lawful use of ADM.
The commission said there were two types of agricultural tenancy – tenancies governed by the Agricultural Holdings Act 1986, which generally provided lifetime security of tenure and rent control and tenancies governed by the Agricultural Tenancies Act 1995, which contained neither protection.
“We have heard that these regimes may not correctly balance the interests of landowners and tenants and 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.
“We have also been told that the current law may restrict tenant farmers from diversifying and adapting their businesses and benefiting from new opportunities.”
Detailed consideration of reform of the law “in this important area is long overdue”.
On commercial leases, where there is an existing project on the right to renew, the new project will examine whether reform is needed to the Landlord and Tenant (Covenants) Act 1995 and rights of first refusal under the Landlord and Tenant Act 1987.
It will also consider changes to the law on the “maintenance, repair and upgrading of leased commercial buildings”.
A new project on the law of deeds will consider whether the concept remains fit for purpose, whether there should be changes to the existing requirements for deeds, such as witnessing and attestation, and whether changes in the law are needed so compliance can be facilitated by smart contracts.
Another project will look at the law on ownerless land – the Crown’s ancient right to unowned goods or bona vacantia and when land reverts or escheats to the Crown Estate after a freehold is disclaimed.
A further project will consider how residents could be given greater control over the management of housing estates.
Turning to criminal law, a project has been launched on the issue of consent, where the law remained “unsettled, incoherent, and unpredictable”, despite being the subject of “extensive judicial consideration and legislative reform” over the last 40 years.
Another will look at “widely criticised” rules on the insanity defence, which date back to 1843 and on which the Law Commission published a discussion paper in 2013.
Meanwhile, there was not currently an “explicit offence of desecration of a dead body” and a new project would examine the gaps in the law, including “intimate image abuse, mutilation, and other non-sexual offending, including a killer’s refusal to provide the location of their victim’s body”.
A further project will look at potential changes to the UK’s product liability regime set out in the Consumer Protection Act 1987, which had not kept pace with the rapid development of emerging technologies, including AI.
Sir Peter Fraser, chair of the Law Commission, described the programme as “a substantial body of work that will bring the existing law up-to-date”.
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