Abstract

Various due process provisions designed for use by civil servants in administrative decision-making may become redundant when automated decision-making is taken into use in public administration. Problems with mechanisms of good government, responsibility and liability for automated decisions and the rule of law require attention of the law-maker in adapting legal provisions to this new form of decision-making. Although the general data protection regulation of the European Union is important in acknowledging automated decision-making, most of the legal safeguards within administrative due process have to be provided for by the national law-maker. It is suggested that all countries have a need to review their rules of administrative due process with a view to bringing them up to date regarding the requirements of automated decision-making. In whichever way the legislation is framed, the key issues are that persons who develop the algorithm and the code as well as persons who run or deal with the software within public authorities are aware of the preventive safeguards of legality in the context of automated decision-making, not only of the reactive safeguards constituted by the complaint procedures, and that legal mechanisms exist under which these persons can be held accountable and liable for decisions produced by automated decision-making. It is also argued that only rule-based systems of automatized decision-making are compatible with the rule of law and that there is a general interest in preventing a development into a rule of algorithm.

Abstract

Abstract The increasing prevalence of algorithmic decision making (ADM) by public authorities raises a number of challenges for administrative law in the form of technical decisions about the necessary metrics for evaluating such systems, their opacity, the scalability of errors, their use of correlation as opposed to causation and so on. If administrative law is to provide the necessary guidance to enable optimal use of such systems, there are a number of ways in which it will need to become more nuanced and advanced. However, if it is able to rise to this challenge, administrative law has the potential not only to do useful work itself in controlling ADM, but also to support the work of the Information Commissioner’s Office and provide guidance on the interpretation of concepts such as ‘meaningful information’ and ‘proportionality’ within the General Data Protection Regulation.

Abstract

This article revolves around the search for statutory recognition of the use of algorithmics (including rule-based systems) to make decisions. Thus, the focus is on whether a powerconferring rule is necessary before an administrative authority may issue a valid automated decision. By claiming that such a power-conferring rule is not only desirable but also a legal requirement, one contends that the shifting to automated decision making in the public sector is simply a by-product of reengineering bureaucratic practice through Information and Communication Technology. The issue is essential because there are several cases throughout Europe and beyond in which the latter is precisely the case. Moreover, values such as efficiency and flexibility to adapt to fast technological change could be considered sound justificatory arguments to purport that automated decision-making in the public sector should not be governed through the traditional arsenal of the rule of law. The primary purpose of the article is to offer a first conceptual skeleton to sow the seeds for further research on a normative claim that automated public administration decision-making should, nonetheless, be implemented in light of the rule of law. Secondly, it offers some recommendations for a legal framework to govern such a practice. The background idea is that focusing on the legal power to make an automated decision constitutes a necessary step to guarantee that the ethical and political principles that should undergird the adoption, development and implementation of any form of algorithmic decisionmaking in the public sector are appropriately and adequately taken into account. public sector, automated decisions, rule of law, algorithms

Abstract

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.