Responsibly Buying Artificial Intelligence: A ‘Regulatory Hallucination’ -- draft paper for comment

© Matt Lowe/LinkedIn.

Following yesterday’s Current Legal Problems Lecture, I have uploaded the current full draft of the paper on SSRN. I would be very grateful for any comments in the next few weeks, as I plan to do a final revision and to submit it for peer-review in early 2024. Thanks in advance for those who take the time. As always, you can reach me at a.sanchez-graells@bristol.ac.uk.

The abstract of the paper is as follows:

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.

Sanchez-Graells, Albert, ‘Responsibly Buying Artificial Intelligence: A “Regulatory Hallucination”’ (November 24, 2023). Current Legal Problems 2023-24, Available at SSRN: https://ssrn.com/abstract=4643273.

NHS commissioning and procurement - 2 short lectures and a reading list

I have recorded a series of short lectures on NHS commissioning and procurement for my blended teaching at the University of Bristol Law School this coming academic year. In case they are of any interest, I am sharing two of them here.

The first one covers the organisation and regulation of NHS commissioning and procurement and primarily concentrates on the commissioning of health care services. The second lecture covers the centralisation of ‘hospital procurement’ through the NHS Supply Chain. They should be accessible through the click-through images at the end of the blog post.

The two short lectures aim to provide a (hopefully) accessible introduction to the issues covered in more detail in the accompanying reading list, which mainly comprises the following papers for each of the topics:

1. Organisation and regulation of NHS internal market, with a focus on commissioning and procurement

  • A Maynard and M Dixon, ‘Should the NHS abolish the purchaser-provider split?’, BMJ 2016;354:i3825, available at https://doi.org/10.1136/bmj.i3825.

  • C Paton, ‘Garbage-Can Policy-Making Meets Neo-Liberal Ideology: Twenty-five years of redundant reform of the English National Health Service’ (2014) 48(3) Social Policy & Administration 319-342.

  • L Jones, M Exworthy and F Frosini, ‘Implementing Market-based Reforms in the English NHS: Bureaucratic coping strategies and social embeddedness’ (2013) 111(1) Health Policy 52-59.

  • B Collins, ‘Procurement and Competition Rules. Can the NHS be exempted?’ (2015) King’s Fund briefing, available at https://www.kingsfund.org.uk/publications/nhs-procurement-competition-rules.

  • M Guy, ‘Between “Going Private” and “NHS Privatisation”: Patient choice, competition reforms and the relationship between the NHS and private healthcare in England’ (2019) 39(3) Legal Studies 479-498.

  • P Allen et al, ‘Public Contracts as Accountability Mechanisms: Assuring quality in public health care in England and Wales’ (2016) 18(1) Public Management Review 20-39.

  • D Osipovič et al, ‘Interrogating Institutional Change: Actors' Attitudes to Competition and Cooperation in Commissioning Health Services in England’ (2016) 94(3) Public Administration 823-838.

  • P Allen et al, ‘Commissioning through Competition and Cooperation in the English NHS under the Health and Social Care Act 2012: Evidence from a qualitative study of four clinical commissioning groups’, BMJ Open 2017;7:e011745, available at http://dx.doi.org/10.1136/bmjopen-2016-011745.

  • M Sanderson, P Allen and D Osipovič, ‘The Regulation of Competition in the National Health Service (NHS): what difference has the Health and Social Care Act 2012 made?’ (2017) 12(1) Health Economics, Policy and Law 1-19.

  • D Osipovič et al, ‘The Regulation of Competition and Procurement in the National Health Service 2015–2018: Enduring hierarchical control and the limits of juridification’ (2020) 15(3) Health Economics, Policy and Law 308-324.

2. Centralisation of NHS procurement

Feedback and suggestions on additional readings most welcome: a.sanchez-graells@bristol.ac.uk.