Responsibly Buying Artificial Intelligence: A ‘Regulatory Hallucination’

By Albert Sanchez-Graells, University of Bristol Law School

Here, I focus on the UK’s approach to regulating public sector procurement and use of artificial intelligence (AI) in the context of the broader ‘pro-innovation’ approach to AI regulation. Borrowing from the description of AI ‘hallucinations’ as plausible but incorrect answers given with high confidence by AI systems, I argue that UK policymaking is trapped in a ‘regulatory hallucination.’ Despite having embraced the plausible ‘pro-innovation’ regulatory approach with high confidence, that is the incorrect answer to the challenge of regulating AI procurement and use by the public sector. I conceptualise the current strategy as one of ‘regulation by contract’ and identify two of its underpinning presumptions that make its deployment in the digital context particularly challenging. I show how neither the presumption of superiority of the public buyer over the public contractor, nor the related presumption that the public buyer is the rule-maker and the public contractor is the rule-taker, necessarily hold in this context. Public buyer superiority is undermined by the two-sided gatekeeping required to simultaneously discipline the behaviour of the public sector AI user and the tech provider. The public buyer’s rule-making role is also undermined by its reliance on industry-led standards, as well as by the tech provider’s upper hand in setting contractual benchmarks and controlling the ensuing self-assessments. In view of the ineffectiveness of regulating public sector AI use by contract, I then sketch an alternative strategy to boost the effectiveness of the goals of AI regulation and the protection of individual rights and collective interests through the creation of an independent authority.

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