On 22 May 2024, the surprise call for a UK general election triggered a short “wash-up period”, allowing the government to enact legislation deemed essential or subject to minimal debate before Parliament was dissolved on 24 May 2024. Notably, reform of the UK’s data protection framework through the Data Protection and Digital Information Bill (DPDI Bill) did not make it through to the priority list.
In the words of Liberal Democrat peer Lord Clement-Jones the Bill is now “as dead as a dodo”.
With Labour’s manifesto yet to be published, it is unclear whether a Labour Government would resurrect the reform, although it seems unlikely to be an immediate priority. Mike Laughton, senior policy manager at tech advisory firm Access Partnership, says it is “reasonable to expect” the DPDI Bill “to return in some form”. In contrast, Clement-Jones has predicted that Labour will plan a “digital bill in the autumn on entirely different lines”, including artificial intelligence (AI).
What would a Labour Government mean for the regulation of AI?
Labour has been a little more vocal about the regulation of AI.
The current Conservative Government proposed what it termed an adaptable, pro-innovation, sector-led approach, empowering existing regulators to create targeted measures in line with five common principles tailored to the risks posed by their different sectors. The government has adopted a wait-and-see approach, acknowledging that legislative action will be required once the risks associated with the technology have matured. This is in contrast to the EU’s more prescriptive approach to AI regulation through the wide-ranging EU AI Act, which is due to come into force imminently. See our blog here for more analysis.
Indeed, a House of Commons Science, Innovation and Technology Committee Report published last week (28 May), made it clear that “the next government should be ready to legislate on AI if it encounters gaps in the powers of any of the regulators [under the current approach] to deal with the public interest in this fast developing field”. For further information see our blog post here.
Labour’s official AI policy is currently relatively light but a growth paper on AI is expected to provide further clarity in the summer. That said, the party considers the existing voluntary approach as inadequate. Shadow Secretary of State for Science, Innovation and Technology, Peter Kyle, highlighted back in November 2023 that the Bletchley AI Summit was an opportunity for the UK to “lead the global debate on how we regulate this powerful new technology for good. Instead, the Prime Minister has been left behind by the US and EU, who are moving ahead with real safeguards on the technology”. He has also voiced concerns around disinformation and deepfakes.
According to the Top in Tech podcast from policy advisory firm Global Counsel, there is an expectation that Labour wants to prioritise “recalibrating” UK/EU relations, which could influence a broad range of policy areas such as digital regulation and make divergence unappetising. Such a shift would likely gain some support in industry circles given the challenge for multi-national firms looking to comply with the current fragmented international landscape around AI regulation. It therefore seems possible a Labour Government could look to take a more interventionalist approach, potentially aligning the UK to some extent with the EU.
Turning the spotlight on technology and AI in the workplace, Labour’s 24 May 2024 document ‘Labour’s Plan to Make Work Pay’, pledges to promote safeguards against the invasion of privacy through surveillance technology and discriminatory algorithmic decision making. “At a minimum”, it calls for consultation and negotiation with unions or elected employee representatives before employers introduce surveillance technologies. The party will also face calls from the Trades Union Congress (TUC) to progress legislative reforms in the TUC’s recently published draft Artificial Intelligence (Regulation and Employment Rights) Bill, which mirrors the risk-based approach of the EU’s AI Act.
Impact of a Labour Government on existing legislation
Several pieces of UK legislation governing digital regulation have already received Royal Assent and will now embark on the implementation process. These include the recently enacted Media Act 2024 and Digital Markets, Competition and Consumer Act 2024 through the wash-up process, as well as the likes of the Online Safety Act 2023. A Labour Government may impact the timing of finalising and approving secondary legislation or codes of practice envisaged under each of the legislative frameworks. Given Labour’s own legislative proposals, the party will likely dedicate more time and resource to its own priorities, rather than implementing the legacy of a previous administration. This may lead to delays in the overall timetable for implementation.
What to expect next?
The political parties are expected to publish their manifestos in the coming days, providing further insight into their policies and long-term agendas. This will help clarify the impact of a change in government on data and digital regulation but campaign realities mean that manifestos often veer away from detailed policies in complex areas like industry regulation, suggesting it could be months before a Labour Government’s digital vision truly comes into focus.
For further information, please contact:
Miriam Everett, Partner, Herbert Smith Freehills
Miriam.Everett@hsf.com
