Proving Public Law Error in Automated Decision-Making Systems

Abstract

Due to recent advancements in government technology practices, public lawyers are now compelled to grapple with the diverse implications of the rise of the digital administrative state. This paper considers the question of how the growth of opaque automated administrative decision-making (ADM) systems will impact on the use of evidence in judicial review proceedings. In doing so, it examines a pressing issue of law and practice at the intersection of two under-developed and important sub-fields of public law: the role of evidence in judicial review and the role of judicial review vis-a-vis automated public sector decision-making. The development of understanding in this seemingly niche area is essential to ensuring that wider public law norms maintain traction in an era of automated government systems. The discussion is in two parts. The first part of the paper examines the current understanding of the role of evidence in judicial review and finds it to be in an unsatisfactory condition. In the second part of the paper, we present the reasons for opacity in ADM systems, a framework for understanding different types of evidential complexities, and an analysis of the likely impacts on judicial review evidence. We come to two broad conclusions. First, proving public law errors in ADM systems presents a myriad of challenges which will require not only innovation by claimants but potentially necessitate wide reconsideration of legal principle and procedure. Second, on evidence more generally, examining judicial review evidence in the context of ADM exposes the need for a much wider conversation about evidence in judicial review. The conventional account of evidence in judicial review found in literature is no longer credible and it is now necessary — much like that widely recognised by those concerned with criminal law and other areas of significant litigation activity — to develop a general field concerned with the law, practice, and principles of evidence in judicial review.