The publication last week of the UK Jurisdiction Taskforce’s ‘Legal Statement on Liability for AI Harms under the private law of England and Wales’ is another context-free guide discussing the adoption of AI without telling us the full cost of doing so. I think this poses dangers for us, as explained below.
The guide is marvellous. It is full of the most useful advice. The Law Society has welcomed it. But nevertheless the guide is context-free, as if the use of AI poses no more dangers to the nation than our collectively using pen and paper. The arguments of those who are justifiably protesting is not heard, in circumstances where their points should be covered.
Who is protesting? There is a choice of protest groups.
In no particular order, there are young people. There was a succession of commencement speeches at US universities over the summer where an older and distinguished speaker praised AI, and the graduating students booed. AI is an enemy to the careers of young people. Junior lawyers complain that AI is eating their jobs, and senior lawyers ignore them and lend their shoulder to further AI adoption.
This is not an empty cry from the younger generation. They are being deskilled through being replaced by machines – it is literally an AI harm – meaning that there will soon be no senior lawyers with the skills to carry out the oversight that the UK Jurisdiction Taskforce’s Legal Statement on Liability for AI Harms insists must be carried out. It is part of a responsible senior generation to take account of the quality of the incoming members of the profession. I will deal below whether this should have formed part of the Legal Statement.
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Who else is protesting? Climate activists are. Those who live near the vast data centres necessary for the support of AI, which swallow up gigantic amounts of electricity and water, are protesting. We should all be protesting. AI is sold to us as a free and efficient way of dealing with problems, but we are never told at the same time about the environmental cost. The data is published elsewhere, not nearly as often as its supposed benefits, and in more out of the way places. As we suffer under successive heat waves this summer, it is irresponsible to push the use of AI without a mention of its crippling environmental costs.
Who else is protesting? Many people are complaining that high tech, all of it, makes us sick. I mentioned last week in an article on solicitor wellbeing that our mental health is suffering because of tech’s demands of immediacy and constant availability, its addictive qualities and inescapable ubiquity. AI is a part of this. This is not a cost-free tool in terms of health. We all know this to be true.
And finally I am protesting about digital sovereignty. It is a well-known topic, but I do not see many people shrieking about it as they ought to be. None of the tech we use, including (and especially) AI, is made and owned in the UK. It is nearly all made in the US, although China is making inroads. Neither country is a reliable ally, as I have written before. We should be much more careful in our headlong rush to become dependent on it, because one day someone will turn off the switch and we will no longer have a functioning justice system.
What does this have to do with the Legal Statement of Liability for AI Harms? Well, my eye was caught by the statement on breach of duty in failing to use AI: ‘a professional could also be liable for failing to use AI for a task when a professional exercising reasonable care and skill would have done so’. One of the examples given is when an AI system is extremely effective and could be purchased at reasonable cost.
Here is where a good guide should give much greater context. Of course a general statement like ‘when a professional exercising reasonable care and skill would have done so’ seems unexceptionable. But the example gives the game away. In the example, the cost of the AI system is the cost of purchasing it, not the devastating hidden costs of deskilling, environmental devastation, damage to mental health, and dangers to our national security through overdependence on foreign AI.
Guides and rules on AI should no longer be published without a full assessment of the cost of using it, which goes well beyond the price tag in the shop.
The old question arises, too, of to whom solicitors owe a duty: just to the client regardless of other foreseeable damage, or to the public interest? We need to discuss urgently whether a solicitor should be able lawfully to refuse to use AI because the cost of doing so is too damaging to the public interest.
Jonathan Goldsmith is Law Society Council member for EU & International, chair of the Law Society’s Policy & Regulatory Affairs Committee and a member of its board. All views expressed are personal and are not made in his capacity as a Law Society Council member, nor on behalf of the Law Society
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