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Legal expert Reijer Passchier on the law, Big Tech and Big Brother

Is the child benefits scandal an omen for the future and will people’s lives soon be fully dominated by algorithms? Assistant Professor of Constitutional and Administrative Law Reijer Passchier warns that the encroaching digitalisation is giving the executive branch even more power, leaving parliament and the judiciary lagging behind.

In your book ‘Artificiële intelligentie en de rechtsstaat’ (Artificial Intelligence and the Rule of Law’) you conclude that digitalisation poses a threat to the democratic rule of law. How?

‘Because our current constitution, our system of checks and balances, cannot compete against digitalisation and AI. At the moment it is mainly the executive that benefits from digital technology. It can work more efficiently and is gaining more power, for instance thanks to AI. AI is already used in many parts of the public sector: to detect fraud, to determine the risk of school dropout, to estimate the reliability of property values and so on. The judiciary and parliament are lagging behind in this process: they barely use AI at all and lack the knowledge and ability to effectively monitor the digitising government administration. The existing imbalance within the trias politica will only increase.’

‘MPs have to monitor the ministries – with their thousands of civil servants, hired consultants and enormous budget – with the aid of two staff members at the most’ - Reijer Passchier

In what way have things become skewed?

‘First with the rise of the welfare state, and then since 9/11 because the government wants to guarantee security in more and more areas. This has led to government agencies being given more and more powers, which has a big impact on citizens. Meanwhile MPs have to monitor the ministries – with their thousands of civil servants, hired consultants and enormous budget – with the aid of two staff members at the most.’

Is this what went wrong with the child benefits scandal?

‘There were several reasons for that, but the use of algorithms by the Tax and Customs Administration to detect fraud definitely played a part. This was one reason why parliament was so late to understand what was actually happening, and the same applies to the judges.’

Reijer Passchier, Assistant Professor of Constitutional and Administrative Law

But surely this was a wake-up call for politicians?

‘More or less. There is now a special Parliamentary Committee for Digital Affairs. But politicians’ actual knowledge leaves something to be desired. And you can’t tackle a problem like this in a monodisciplinary way. In parliament the representative for digitalisation isn’t allowed to say anything about social affairs or healthcare, for example, but the point is that this technological component is intertwined with all areas of policy. You have to work together as a multidisciplinary team.’

You are also concerned about the growing power of Big Tech

‘Yes, because we can see that companies like Meta (formerly Facebook) and Google can impose more and more rules on citizens. You can counter: then why not go to another company? But in practice many citizens need these services to be able to function, also in their work. Like a kind of mini state, tech giants can use their power as to their own benefit and that of their shareholders.’

What else do you think is needed to redress the balance?

‘A special office for technology assessment, for instance, like they have in Germany: with experts who support MPs in their checking and co-legislative role, by estimating what impact new technology, and legislation about this, will have on society. On their own there is relatively little MPs can do.’

Read the full interview in Leidraad, the magazine for alumni of Leiden University (in Dutch). Also read about the five advantages of ICT tools in education and which learning strategy master’s journalism student Vera Brouwer is using.

Text: Peter Wierenga
Photos: istock, Taco van der Eb

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