Private Involvement in Autonomous Decision-Making Exercising Public Tasks and the Good Administration: a need for further research
The use of algorithms by public administration is nothing new on the horizon. In 2019, Algorithm Watch started the project ‘Automating Society’, which has resulted in two annual reports mapping the usage of ADM operations by Member States throughout the European Union (EU). These public ADM processes are now widely spread. In social care they flag young adults at risk for social exclusion and identify associated risks (Eksote, Finland). In taxes they rank ‘risky’ citizens who may evade taxes (fraud detection, Slovenia), and in health care they monitor children’s growth and signal disparities that may be the consequence of diseases or child abuse potentially resulting in removing children from their families (Growth Watch, the Netherlands). Even the EU has acknowledged the potential of ADM procedures and established the European Travel Information and Authorisation System, which issues a travel authorisation to non-European citizens without a visa obligation to travel to the Schengen Member States. Applicants fill in an online application, after which the system will either issue the travel authorisation or determine that further examination is required. Another example includes iBorderCtrl, a lie detection system that screened third country nationals at the borders of the EU. An avatar conducted interviews with these citizens – and when necessary marked them as potentially lying – during a pre-screening. The EU ceased using iBorderCtrl in 2019.
Despite the potential of increasing involvement of private parties in ADM systems performing public tasks, such involvement equally bears the risk to negatively affect the duty to state reasons and the right to be heard under the right to good administration of Article 41 Charter of Fundamental Rights of the European Union (EU Charter). It is in this light that this blog post will firstly discuss the involvement of private parties in ADM systems executing public tasks. Secondly, it outlines the legal framework of the right to good administration under the EU Charter and the European Convention on Human Rights (ECHR). This right is embedded in Article 41 EU Charter, which correlates to Article 6(1) ECHR. As a result, the degree of protection of this corresponding right may not fall below the protection provided by the ECHR. Lastly, the post assesses potential violations due to the private involvement in ADM operations carrying out public tasks.
An additional complexity: the involvement of private parties
Public administration struggles to create and maintain the algorithms needed for ADM processes carrying out public tasks. As a result, they have ventured to private parties not only to build algorithms, but also to provide the necessary support for the maintenance of such ADM procedures. This high reliance on the private industry has led to a new mode of governance, in which both public and private parties play a role in performing public tasks. No longer are only two actors involved in the vertical relationship between administrative authority and individual. By governments seeking the assistance of private parties, the latter now also form a part of this vertical relationship with on the one hand the public administration with the cooperating private party and on the other hand the citizen. While contracting out public tasks as such does not seem problematic, States are obliged to safeguard fundamental rights. Unfortunately, this new hybrid form of governance may come at the cost of impairing these rights. An example includes the right to good administration, which regulates administrative authority’s behaviour in relations with individuals. This raises the question whether the right to good administration is potentially at risk in such hybrid governance, in which private parties are involved in ADM operations executing public tasks.
Legal framework: the right to good administration
Article 41 EU Charter
By codifying the right to good administration in Article 41 EU Charter, the rights of defense during administrative proceedings were no longer merely a principle but rather a full-fledged right. The rights, as stated in Article 41 EU Charter, constitute the core of this new right to good administration. As a result, – apart from these minimum rights – the exact content remains ambiguous. Article 41(2) EU Charter lists three rights of individuals in relation to governments. Firstly, addressees of an adverse decision have the right to be heard before public administration adopts negative decisions (the Transocean Marine Paint case). Secondly, individuals have the right to access their file (the Hercules Chemicals ruling). Originally created in the field of competition law, the General Court has widened the application of the right to access to the area of customs, and thus demonstrated the general application of this right to all legal domains (the Eyckeler judgment). Thirdly, administrative authorities have the duty to state reasons. This right of defense in administrative proceedings stems from the now Article 296 TFEU establishing the duty to state reasons for the EU when issuing legal acts. The duty to state reasons further allows addressees to understand the reasons underlying the decision and courts to exercise judicial review (Sytraval case).
Article 6(1) ECHR
The right to good administration of Article 41 EU Charter corresponds to Article 6(1) ECHR. However, that Article solely discusses civil and criminal proceedings and hence does not specifically cover administrative procedures. Thus, the ECHR remains silent as to the existence and content of the right to good administration. Nevertheless, this has not withheld the European Court of Human Rights (ECtHR) to pass judgments on the right to good administration based on Article 6(1) ECHR. Indeed, the ECtHR held that Article 6(1) ECHR includes the principle of good governance, which encompasses various aspects of the right to good administration as laid down in Article 41 EU Charter (the Moskal ruling). More specifically, the three rights discussed above can all be found in the case law of the ECtHR. Firstly, addressees of an unfavourable decision also have the right to be heard (the Chapman case).Secondly, the ECtHR confirmed the individual’s right to access their file (the McMichael judgment). Thirdly, governments have the duty to state reasons (the Church of Scientology Moscow case). This latter right further requires public administration to mention the legal basis of the decision adopted (the Frizen ruling).
The right to good administration: potential violations
In this new hybrid form of governance, in which private parties are involved in ADM systems carrying out public tasks, certain elements of the right to good administration are evidently at risk. This private involvement may result in only the private party knowing how the algorithms necessary for ADM processes operates, while at the same time leaving administrative authorities in the dark. An example includes the Danish Et Fælles Inddrivelsessystem that collected national and local taxes from 2005 to 2015. Only the private party possessed expertise on the system’s operations. In some cases, the algorithms created by private parties are simply inexplicable. The English Metropolitan Borough of North Tyneside have discontinued the use of the Risk Based Verification systems, which assigned risk rating to each application for housing benefits, as the allocation of the risk rating remained unclear. These two cases illustrate the government’s incapability to observe the duty to state reasons due to them not apprehending the algorithm’s functioning. Supposing public administration would have access to the private algorithms used in their ADM procedures, they may still not be able to explain the reasoning for their issued decision. Indeed, the private company assisting the Dutch municipality of Nissewaard in combatting fraud in social welfare benefits published a document explaining their algorithms. However, even with these explanations, it seems a cumbersome task for a layman – including administrative authorities – to comprehend the algorithmic processes without any expertise. The described problems at the level of Member States may also occur at European level. The European project robusT Risk basEd Screening and alert System for PASSengers and luggage (TRESSPASS), which is still in development, will identify third country nationals at the frontiers of the EU, who are at risk to migrate to the EU using irregular means. These flagged individuals are required to undergo more severe security checks to confirm the legality of their travels. As TRESSPASS is built by amongst others private parties, parallel issues are expected once this ADM system is in operation. Further, private parties may even be unwilling to share the algorithm due to for example trade secrets. Since only private parties may have access to or grasp the algorithms used in ADM operations, governments may not be able to ensure the individual’s right to access their file or to fulfill their duty to state reasons. This dependency on private parties also puts the citizen’s right to be heard in jeopardy. Indeed, the government’s incapability or inability to provide access to one’s file and to state their reasoning for the adopted decision may render the effective exercise of the right to be heard meaningless, since the addressee of an adverse decision remains clueless as to the reasons underlying the public administration’s decision.
The everyday illustrations show that various aspects of the right to good administration under Article 41 EU Charter may be at risk when private parties are involved in ADM systems performing public tasks. Seeing public administration’s dependency on private parties to employ ADM processes, private parties may be the only party comprehending the algorithms needed to build ADM procedures. As a result, under this new form of hybrid governance, administrative authorities may no longer be able to observe the right to access one’s file and the duty to state reasons. Further, this involvement of private parties may lead to the right to be heard being at risk, as this right is conditional upon the right to access to one’s file and the duty to state reasons. The reliance on the private industry is a necessity to enhance and create novel ADM operations, which makes it clear that the time has come to conduct further research on this topic to ensure the right to good administration. An interesting start may be to look into potential violations of already existing ADM systems carrying out public tasks throughout Member States and the EU itself, in which private parties already play a role. A benefit of reviewing potential conflicts with the right to good administration in such processes is that any solutions provided to ensure this right can be directly implemented in these ADM procedures.