Algorithmic Decision-Making, Delegation and the Modern Machinery of Government.

Abstract

The development of the principle of non-delegation in administrative law was a response to the perceived needs of a 'modern machinery of government', which emerged in post-war 1940s Britain. While it ostensibly sought to ensure that decision-makers appropriately retain their decision-making discretion, and through that political accountability, it has developed into a permissive doctrine that facilitates significant delegation of decision-making within public administration. As algorithmic decision-making (ADM) is increasingly used in public decision-making, it is necessary to question whether it remains fit for the modern machinery of government of the 2020s and beyond. This article considers the limitations of the doctrine in the context of public ADM, considers the shift in doctrinal approach that would be needed to accommodate this emerging machinery and concludes that the doctrine faces serious challenges in accommodating ADM in public decision-making.