By Professor Albert Sanchez-Graells, Co-Director of the Centre for Global Law and Innovation (University of Bristol Law School).
The Digital Constitutionalist (DigiCon) has recently hosted a symposium on ‘Safeguarding the Right to Good Administration in the Age of AI’, co-edited by Dr Simona Demková (Leiden), Dr Melanie Fink (Leiden) and Dr Giulia Gentile (Essex). Professor Sanchez-Graells contributed his thoughts on the need to extend good administration requirements to the phases of decision-making that are not yet directly relevant to the individual, as well as the need to broaden good administration guarantees to a collective dimension, to account for the new risks arising in the AI-driven administrative context. In this post, first published in the DigiCon symposium, Albert looks at ways to achieve this, whether through an expansive interpretation of Article 41 of the Charter of Fundamental Rights of the European Union or through a European legislative reform. (more…)
by Albert Sanchez-Graells, Professor of Economic Law and Co-Director of the Centre for Global Law and Innovation (University of Bristol Law School).
On 29 March 2023, the UK Government published its much awaited policy paper ‘AI regulation: a pro-innovation approach’ (the ‘AI White Paper’). The AI White Paper made it clear that Government does not intend to create new legislation to regulate artificial intelligence (‘AI’), or a new AI regulator. AI regulation is to be left to existing regulators based on ‘five general principles to guide and inform the responsible development and use of AI in all sectors of the economy’, including accountability, transparency, fairness, safety, and contestability. (more…)
Approximately a third of public sector spending goes to procure third-party goods, services, and works. Procurement rules and policies seek to ensure that contract awards are free from corruption, conflicts of interest or anticompetitive practices, and that these vast sums of public funds generate value for money and support social, environmental, and innovative practices. There is always room for improvement, though. The adoption of digital technologies is seen as a strategic catalyst for procurement reform, to increase the effectiveness of procurement regulation. Digitalisation could reduce the administrative burden through automation, generate data insights to inform policies and boost efficiency in public spending, and serve as a living lab for GovTech experimentation.
However, the transformative potential presumed in digital technologies generates hype and excessive expectations on the true size and nature of the achievable improvements. It also tends to overshadow the required groundwork and preparatory investment. New digital governance risks and requirements are not always recognised or understood. The growing public sector digital capability gap raises further obstacles. Heightened expectations and a minimisation of the challenges can get on the way of successful reform. In ongoing research funded by the British Academy, I apply an innovative technology-centred methodology to assess the governance opportunities and challenges for procurement digitalisation. This blog post provides a summary of the main findings so far. I will also be discussing them with a stellar panel on 15 December 2022 (details and registration). (more…)
by Albert Sanchez-Graells, Professor of Economic Law and Co-Director of the Centre for Global Law and Innovation
Post-Brexit, the UK has been repositioning itself in the global trade scene. Focusing on trade-related public procurement liberalisation, the first two moves for the UK were: one, to join the World Trade Agreement Government Procurement Agreement (GPA), of which it had been a member via the EU, and two, to enter into a comprehensive procurement chapter with the EU in the EU-UK Trade and Cooperation Agreement (TCA). As a result of these two moves, the UK largely consolidated the pre-Brexit status quo and ensured continuity in market access for UK suppliers abroad, as well as foreign suppliers in the UK.
The next move is now for the UK to expand procurement-related trade liberalisation via free trade agreements (FTAs), of which it has signed one with Australia and another with New Zealand. The UK is also seeking accession to other multilateral FTAs covering procurement, such as the Comprehensive and Progressive Agreement for Trans-Pacific Partnership (CPTPP). Interestingly, both Australia and New Zealand are parties to the GPA and to the CPTPP, so the UK is about to create a triple layer of regulation of procurement liberalisation with these two countries, as all relevant procurement exercises will be subjected to the GPA, the CPTPP and the FTAs. Is this a problematic strategy? (more…)
By Professor Albert Sanchez-Graells, Professor of Economic Law and Co-Director of the Centre for Global Law and Innovation (University of Bristol Law School)
Preventing, detecting, and sanctioning corruption in public procurement is one of the main goals of all systems of regulation applicable to the expenditure of public funds via contract (see eg Williams-Elegbe, 2012). Despite constant and regularly renewed efforts to fight procurement corruption at an international (such as the UN Convention against Corruption, or the 2016 OECD’s Preventing Corruption in Public Procurement report) and domestic level (see eg the UK’s 2020 ‘Local government procurement: fraud and corruption risk review’), corruption remains a pervasive problem in any given jurisdiction. Of course, there are different forms and degrees of corruption infiltration in different procurement systems but – if any evidence was needed that no system is corruption-free – pandemic-related procurement served as a clear reminder that this is the case (see eg Transparency International, 2021; as well as Good Law Project v Cabinet Office  EWHC 1569 (TCC)). It should then not be surprising that the possibility that artificial intelligence (AI) could ‘change the rules of the game’ (eg Santiso, 2019) and bring procurement corruption to an end is receiving significant attention. In a recent paper*, I critically assess the contribution that AI can make to anti-corruption efforts in the public procurement context and find that, while it could make a positive incremental contribution, it will not transform this area of regulation and, in any case, AI’s potential is significantly constrained by existing data architectures and due process requirements.(more…)
Until recently, public procurement law and practice have rarely been at the forefront of public and political debates. The UK government’s procurement reaction to the pandemic continues to generate scathing reports—such as the most recent one on PPE procurement by the House of Commons Public Accounts Committee—and the emerging lessons show the need to strengthen this area of public governance. Against this background, it is timely to reflect on the government’s recent proposals to reform public procurement law in the Green Paper ‘Transforming Public Procurement’. (more…)