Updated The UK government has caved at the threat of a judicial review into its £23m contract with controversial US AI firm Palantir in setting up the NHS COVID-19 datastore.
In three key concessions the government has said it cannot offer firms like Palantir a long-term NHS role without consulting the public and that it would not expand Palantir's work on the NHS datastore beyond COVID-19 without notifying the public. At the same time, it has agreed to engage citizens about Palantir's role in the NHS via patient juries.
In February, news website openDemocracy, backed by tech campaign group Foxglove, filed for a judicial review of the deal between the NHS and Palantir, which carries out information analysis and processing work for the defence and intelligence communities, often creating bespoke solutions such as digital-profiling tools for the CIA and ICE. The company was founded by prominent Trump financier and PayPal investor Peter Thiel.
In December last year the NHS signed a two-year contract with Palantir, without scrutiny, even though the engagement with the UK health service was originally supposed to be a temporary, emergency measure to help address the pandemic. The new deal committed to using Palantir's Foundry platform until December 2022.
According to a legal letter received by the campaign group, the government has now agreed not to extend Palantir's contract beyond the pandemic without consulting the public.
The campaigners' concerns were that the two-year contract took the relationship with Palantir beyond the peak of the pandemic and that it included unrelated activity such as Brexit and general business planning.
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In March 2020, when the December contract was confirmed, Ming Tang, national director for data and analytics at NHS England and NHS Improvement, said in her blog that services needed to "continue to improve the way that data is managed and used by the system while maintaining high standards of public trust and promoting transparency."
That same month, the government said it would develop a platform designed to provide "secure, reliable and timely data" to national organisations charged with coordinating the response to the pandemic.
Amazon, Google, and Microsoft were on the list of contracted companies, along with Palantir Technologies UK and the London AI company Faculty, which worked on the Vote Leave Brexit referendum campaign.
In June 2020, the government agreed to publish details of these contracts, just as openDemocracy and Foxglove were set to sue for them to be revealed.
Concerns over the extension of the government's deals with big tech firms beyond the pandemic have been highlighted by an NHS whitepaper, which says that the COVID-19 pandemic response has shown new ways to "deliver care using innovative and creative solutions, exploiting the potential of digital and data, instead of needless bureaucracy." The reforms discuss improved data collection and sharing across the NHS.
In a letter to the campaign groups' legal team, government lawyers have agreed to consult "citizen juries" in March to May 2021, asking about the future of the COVID datastore and possibly extending it to non-COVID uses. Three such juries of 18 people, including service users and patients, are set to reflect the demographic mix of the UK population. The groups will hear from expert witnesses and the government has agreed to consider their views on whether the datastore could be employed for non-COVID work.
The government has also agreed to carry out a Data Protection Impact Assessment before the datastore is used for non-COVID work. The legal case seeking a judicial review is now over, but the campaign groups said they would watch with interest how the public consultation takes place to try to ensure the government does not see the activity as a box-ticking exercise.
The Department of Health and Social Care has been contacted for comment. ®
Updated at 10:34 UTC on 31 March 2021 to add:
An NHS spokesperson told us after publication of this story: “Actually OpenDemocracy have had to drop their court case unilaterally as it was apparent even to them that the NHS has always acted in accordance with its legal responsibilities. They therefore stood no chance of succeeding in their completely spurious claim. It would be more honest if they actually came clean with their crowdfunders that far from 'winning' this case they had no choice but to drop it when they realised they hadn’t a leg to stand on."
Foxglove director, Martha Dark responded to this: “In the last 12 months openDemocracy asked the government time and time again to consult the public about the datastore.
"Their response was continuously that they were not required to. If they had planned to engage the public about the future of the datastore and Palantir's role in it before being sued, they had literally months of legal correspondence in which to tell us that was their plan. They didn't.
"Make no mistake, the government have now agreed to consult the public because of this case. This is just the start of the democratic debate we need about Palantir's role in the NHS - a few patient juries aren't enough - but they had refused to give an inch about the public's proper role until we sued them, so this is an important principle conceded.
"And we invite them to publish their legal correspondence with us in full so the public can see their formal position before they were sued - versus after."