Withers responds to the UK Government's consultation on its AI White Paper

In late March, the UK published its White Paper on a "pro-innovation" approach to AI regulation. We previously outlined salient issues arising out of the White Paper and how discrepancies between the UK and EU's approaches may impact businesses using or deploying AI tools. 

Following publication of the White Paper, the UK Government opened a consultation period to allow interested parties to comment on its proposed approach. The consultation window closed on 21 June 2023.

As a firm, our international reach and cross-sectoral practice areas allow us to have a holistic view of the way in which AI regulation has the potential to impact individuals and businesses operating in a range of sectors given how ubiquitous AI tools and services are. We have responded to the consultation paper drawing on our expertise in (amongst other things) AI ethics and data regulation; litigation and regulatory and compliance services in the cryptocurrency and digital assets space and our experience in advising entrepreneurs, disruptive start-ups and early-stage clients in the tech sector. A copy of our response is available here.

Our response focused on the White Paper principles (safety, security and robustness; appropriate transparency and explainability; fairness; accountability and governance; contestability and redress – together the "Principles") and on the specific legal queries posed by the White Paper, where our expertise and experiences enabled us to provide constructive responses.  

As part of our response we highlighted the possibility of Principles coming into conflict with each other and the need for greater clarity on what businesses would be required to do if that were to happen.  

We also emphasised that, in view of the UK Government's proposed approach to let regulators issue guidance on how to apply the Principles, each regulator's mandate must be clearly defined and regulators must work collaboratively to ensure that businesses, users and civil society have clarity as to the requirements they must meet and the rights they have – especially because under the UK Government's plan, the Principles are not intended to have statutory footing. 

Similarly, whilst the UK Government plans to engage a range of experts on the topic of liability throughout an AI's lifecycle, we emphasised the need for these discussions to take place quickly so as to equip not just businesses and users but also lawyers and judges with relevant frameworks. 

We also noted that whilst the UK Government's proposed one-size fits all approach accounts for the fact that what appears to be "typical" AI usage may, if not regulated properly, still have serious implications for end users,  there is a risk that the 'average' UK organisation using and deploying AI tools may have compliance burdens disproportionate to the risk level associated with its activity, whereas a competitor in the EU would potentially have less onerous obligations.  

Unlike GDPR notices which had to be retrofitted to traditional use of the web through clunky cookie banners, there is an opportunity to facilitate any notices requiring organisations to make it clear when they are using AI at the genesis of the technology in a consumer setting, which may increase the prospect of it being developed in a user-friendly and practical way.  

AI regulation continues to dominate the news cycle as the EU inches closer to finalising the EU AI Act and Rishi Sunak is trying to promote the UK as an AI-hub, including by hosting a global summit on AI safety this autumn. As different jurisdictions continue to set out their respective proposals to regulate the use and deployment of AI tools and services, international cooperation and interoperability will be critical.  

By responding to the consultation we hope to contribute to the discourse that will shape the regulation of AI not just in the UK but at global level.

Team at Withers who responded to the White Paper (alphabetical order): Isaac Black, Henry Farris, Harvey Knight, Richard Stebbing, Giulia Trojano, Ben Williams, Ali Woodcock-West.