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.
Highlights
The use of automated decision-making is on the increase within the private sector, and within the public sector, where it may be considered suitable for various decision-making processes within public administration
Because decisions of public authorities cannot be based on predictions on the basis of earlier decisions but must be based on provisions in material law and fulfil requirements of legality which, for instance, in Finland follow from Section 2(3) of the Constitution, a rule-based ADM solution appears to be the only option when ADM systems are designed for administrative decision-making
Because of reasons related to administrative due process, accountability of civil servants and various aspects of the rule of law, there is a need to specify in an Act of Parliament the conditions under which ADM can be used by public authorities
Summary
The use of automated decision-making (hereinafter ADM) is on the increase within the private sector (banks, insurance companies, etc.), and within the public sector, where it may be considered suitable for various decision-making processes within public administration. The provision is repeated in Section 23(1) of the Administration Act (434/2003), according to which an administrative matter must be dealt with without undue delay, supported by a provision in Section 14(1) of the Act on the Civil Servants of the State (750/1994), according to which a civil servant of the state must perform his or her tasks without delay For these structural reasons alone, and to support the use of ADM in public administration, it is important to analyze the preconditions of an administrative due process nature that ADM either is or should be placed under, in Finland and in other countries. It is hoped that readers may relate these notes to corresponding phenomena in their own jurisdictions
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