Legal certainty in automated decision-making in welfare services

Abstract

Within the context of digital automation and profiling in the public sector, the rule of law and its inherent principle of legal certainty are highly debated concepts in relation to the desirable values and norms of equal treatment, transparency, and impartiality. However, scholars and policymakers disagree over whether automated decision-making (ADM) is beneficial for legal certainty. This debate highlights the ambiguity embedded in the substantive meaning of legal certainty. This article aims to analyze how the principle of legal certainty is interpreted and defined during the practical application of ADM in welfare services and to discuss the theoretical prerequisites for these definitions to be realized in ADM processes. The empirical case is the Swedish Public Employment Service, which makes extensive use of a statistical ADM tool for decision-making about whether or not to provide support to jobseekers. While the implementation of ADM by welfare institutions has been encouraged due to the assumption that it strengthens public and democratic principles, the study shows that, in practice, ADM processes are perceived as non-transparent and generate a relatively large proportion of incorrect decisions. This may be specifically disadvantageous for vulnerable individuals, who run the risk of being incorrectly denied the right kind of support while at the same time having a greater need for welfare support. The widespread future use of ADM in welfare services may affect how welfare rights and obligations and public principles are met in a new technological era.