Verdiepend publiekrecht – blok 4
Februari 2021
Inhoudsopgave
Week 1: Inleiding / GDPR......................................................................................................................................2
Literatuur..............................................................................................................................................................2
1-3.......................................................................................................................................................................16
3-3.......................................................................................................................................................................22
Week 2: GDPR.....................................................................................................................................................32
Literatuur...........................................................................................................................................................32
8-3.......................................................................................................................................................................66
10-3.....................................................................................................................................................................74
Week 3: GDPR.....................................................................................................................................................80
Literatuur...........................................................................................................................................................80
15-3.....................................................................................................................................................................94
17-3....................................................................................................................................................................99
Week 4: Non-discriminatie...............................................................................................................................106
Literatuur.........................................................................................................................................................106
24-3...................................................................................................................................................................127
Week 5: Handhaving door een DPA.................................................................................................................132
Literatuur.........................................................................................................................................................132
31-3..................................................................................................................................................................148
Week 6: Integratie............................................................................................................................................153
Literatuur.........................................................................................................................................................153
7-4.....................................................................................................................................................................159
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,Week 1: Inleiding / GDPR
Literatuur
1. Mark Bovens – FROM STREET LEVEL TO SYSTEM LEVEL BUREAUCRACIES - How ICT is transforming
administrative discretion and constitutional control.
1. The issue: discretionary power of civil servants in the constitutional state
Large-scale executive public agencies of the welfare state appear internally to be quietly undergoing a
fundamental change of character. ICT is one of the driving forces behind this transformation: jobs are being
replaced by programs, through algorithms and other methods.
This paper explores the implications of the transformation of bureaucrats as people who can make decisions
and have a lot of room to decide to bureaucrats being rooms filled with computers. What does it entail for the
democratic control of administrative power and for the rule of law? Will it hasten the fulfillment of the
doomsday scenarios of Weber, Popper and Hayek or is it rather the consummation of the ideal of perfect
legal and rational authority? And: how does this transformation relate to the ideals of the constitutional state?
Which constitutional ideal is actually served by ICT?
First, we will take a look at how the traditionaĺ street-level bureaucracy ultimately became embedded over the
course of the twentieth century in the democratic constitutional state. Then we will describe how the
development of ICT has prompted some of these large executive agencies to transform into screen-level, and
even system-level bureaucracies. In each case, we will be guided by three questions:
1) to what extent is there an exercise of administrative power and in what respect is this problematical, from
the perspective of the constitutional state?
2) What (possible) institutional arrangements are available to constrain these practices?
3) What is the underlying ideal of the constitutional state?
2. Street level bureaucracies and the constitutional state
2.1 street level bureaucrats as policymakers
Public service workers occupy a critical position in interactions between individual citizens and large ‘decision-
making factories’. They apply regulations and routines to concrete situations. Although the final decision is
formally handed down by the executive agency, the one deciding to grant a benefit or lay down conditions to a
permit are the welfare workers/adjudicating officials/tasks inspectors/police officers. Many of these public
service workers are street level bureaucrats: public employees who interact directly with individual citizens
and who have substantial discretion in allocating facilities or imposing sanctions. Annually, millions of decisions
are made at this level by public service workers; choices that can impact enormously on the daily life of
ordinary citizens. Hence policy comes alive in the daily practice of street-level bureaucracy. It is here that,
despite detailed rules and regulations, reality is shown to be far more complex and varied than legislators had
ever dreamed. This creates the possibility of discretionary powers for the street level workers. They thus
become more than the implementing agents of policy, they are in fact policymakers as well. There is a concern
that these decision-makers turn into self-willed uncontrollable apparatus before which individuals are helpless.
Democratic control and accountability of these nameless policymakers is necessary.
2.2 Disciplining the discretionary power of street level bureaucrats
Over the century the discretionary power of street level bureaucrats in these large executive agencies has been
restrained and curbed in a number of ways, such as: trias politica.
- legislature restraining powers: some countries have a legal tradition, the requirement of legality. The actions
of administrative bodies must ultimately be founded upon generally prevailing laws. Hence legislature itself
strives to set standards by which to discipline the actions of the executive authorities. Next to legality, legal
certainty and legal equality were refurbished in the 20 th century and got a more extensive range of activity of
public authorities in the welfare state, which again restricted the street level bureaucracies’ discretionary
powers. Decision making process for instance has been restricted by the principle of careful preparation, fair-
play principle and prohibition on detournement de procedure. Also things relating quality such as
proportionality, legal certainty, the principle of legitimate expectations, equality and prohibition of
detournement de pouvoir. Especially these principles in the Netherlands that brought the welfare state
explicitly within the bounds of the rule of law and that, at least for now, has kept the fulfillment of Hayekís
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,prophecy of doom at bay.
- a number of checks and balances were introduced in the executive power itself, for example hierarchy. Some
decisions are not left to the street level bureaucrat but must often be evaluated by those in higher rank. Or
mandaat: the signature of the superior is needed. Also, decision-making by street-level bureaucrats has been
surrounded with a broad range of checks and balances. An example of these are the checking procedures or ex
ante legal revieẃ of decisions taken by the public servant at implementation level. Moreover, ex post objection
proceedings are common in many street-level bureaucracies and are even mandatory in the Netherlands under
the General Administrative Law Act.
- the Trias Politica points toward the judiciary as the disciplinary authority. Over the past century, a coherent
and densely woven system of legal protection against the public authorities has developed. Citizens and
corporations can generally appeal against the decisions of street-level bureaucrats in the administrative
division of the district court or a specific administrative tribunal. This allows the administrative court to review
the manner in which a street-level bureaucrat makes use of his administrative discretion. Administrative justice
in the Netherlands is characterized by a low-threshold access to the administrative court, inter alia thanks to
the absence of compulsory representation at law. As a result, the judiciary is not only formally but also in actual
fact to be considered as a disciplinary institution for the street-level bureaucracy.
Hence the power of the street-level bureaucrats is hemmed in from various sides. The legislature determines
what and how a concrete situation should be weighed but leaves a margin of discretionary power and policy
freedom to the executing official to implement this in practice. The exercise of this power is prescribed up to a
certain point by legal rules and legal principles, such as the principles of sound administration. Organizational
checks and balances have been incorporated into the executive in order to constrain the choices and decisions
of the street-level bureaucrats. And finally, the court reviews the legality of these choices and decisions.
2.3 Legality as the constitutional ideal
The underlying constitutional ideal is legality ^. In a.o. the Netherlands legality requires three aspects:
1) the administrative action must be founded on the law, (2) the law must provide a standard for the content of
the administrative action and (3) the administration must apply the law.
Legality, in a formal, positivist approach to the development of legal rules is considered important to provide
assurance to citizens about their legal position and protect them against random actions of the administration.
Intervention is allowed when it is based on general, known rules, without those rules it is not.
The common law tradition points to ensure the public authorities adhere to the law, but this tradition takes a
different approach. In the British constitutional ideal the safeguards for civil liberties are to be guaranteed by
the common law. The civil rights and liberties are not explicitly stated in but protected by common law.
Inherent in this legal tradition is the idea that every citizen is free to do that which is not prohibited by law. The
liberties are continuously confirmed and upheld by judicial decisions and common law. The tradition offers a
criterion in respect of the acceptability of state intervention. Legality according to them is that the action of
the public authorities accords with the common law, if they derogate, they will be rejected. Common law
goes hand in hand with sovereignty of the parliament, which is the legislative power from which no one may
diverge. This tradition is vulnerable to an interventionist parliament. If the idea of a common law falters in a
civil-liberal political climate, supplementary protection in the form of a drafted set of legal rules may well be
the solution, or so it would appear. All this notwithstanding, the common law tradition continues to shy away
from actually setting down and hammering out the legal relations between citizens and the public authorities.
3. From street level via screen level to system level bureaucracy
A number of large executive organizations have undergone a process of gradual but fundamental change over
the past few decades. Key in this was the role of information and communication technology (ICT). The sheer
dynamism caused by the introduction of computers impacted on both the organization of the street-level
bureaucracy and on the underlying legal set-up. In a relatively short period of time, the street-level bureaucracy
changed into what we could call a screen-level bureaucracy. The decision-making process has been
routinized, contact with citizens is always via or in the presence of a computer screen. Client data must be
filled in. Knowledge management systems and digital decision trees have strongly reduced the scope of
administrative discretion. Many decisions are no longer made at street level, by the worker handling the
case, but have been programmed into the computer in the design of the software. A number of major
executive organizations have meanwhile progressed even further and are rapidly developing into what could
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, be termed system-level bureaucracies. To illustrate this we will take a closer look at two cases in the
Netherlands: the system of student loans and grants and the enforcement of the traffic regulations.
3.1 The system of student grants and loans
In the Netherlands a system of scholarships was established for gifted young people lacking financial means as
early as the start of the preceding century. The grants were traditionally the domain of the Ministry of
Education, Culture and Science. The executive agency created to manage this system for a long time displayed
all the characteristics of the classic street-level bureaucracy. Applicants for a scholarship grant inevitably came
into contact with the officials at the State Student Grants department. These officials were required to establish
per student not only whether he or she was gifted enough, but also whether he or she was indeed indigent and
hence eligible for a grant. The amount of the grant was also contingent upon this. These officials had a
tremendous amount of leeway in coming to a decision. The Ministry of Education viewed the granting of a
scholarship less as a right and more of a favor: just as the student was free to decide to embark on a study did
the public authorities feel free to decide whether or not to grant a scholarship and to decide the amount
thereof. It was sometimes necessary, for example, to estimate the income of the parents who, as small
shopkeepers, failed to maintain adequate financial accounts. Or it was determined that a girl be granted less
than a boy, as she could sew her own clothes. The majority of the workers charged with the allocation of the
student grants knew who their clientś were, as the group remained more or less the same each year. They
sometimes called the students to find out how they were doing or contacted the dean at the institute attended
by the student to inquire about the students’ academic progress.
The street-level bureaucrats thus determined who got what and why, and their judgment was wholly based on
the situation of the individual student. This could work to the advantage of one student and turn out less
favorably for another in the same situation. There were incidents where the head of the department saw a
student arriving at the office of the executive agency in a car and subsequently decided that anyone able to
afford a car could also afford to pay for his own education. To the extent that the discretion of the official
allocating the grants was restricted, this occurred via the ranks of the hierarchy: after all, the line chiefs were
required to sign the decisions and were thus able to retain some hold on what went on.
By the mid-sixties, the administration of the student grants department was mechanized, setting in motion the
gradual development from a street-level bureaucracy to a screen-level bureaucracy. The first computers were
installed and increasingly assumed more and more functions of the allocating officers. First this was only
supporting actions like storing information. But the computers took over more and more functions. This was
partly due to the gradual broadening of the system, which meant a higher number of applicants. It was also
related to the dynamism generated by ICT: automation of a step in a process demands the standardization and
formalization of the preceding steps. If templates were created for the layout of decisions, categories needed
to be defined that could be resolved in a particular way. As a result, more and more cases could be assessed
according to a standard method. The discretionary margin in rules and regulations thus continued to be
squeezed. In the eighties, officers had the choice to accept or reject decisions proposed by the computer. In
practice it became a press of a button kind of procedure. In 1986 a new student finance act was established,
which laid the process down in much detail. There was no room for street-level bureaucrats at this new
executive organization. The work of these screen-level bureaucrats mainly consisted of entering forms filled in
by students in the computer. The computer then, without any input from the officials at all, decided on the
application and printed this. The decision was subsequently sent to the student. Only if the student lodged a
formal objection was the application referred for assessment by a living person. A few street-level bureaucrats
were retained in the objection and appeals department; otherwise, the organization was wholly transformed
into a screen-level bureaucracy.
Some ten years later, around, 1996, the organization was once again sucked into a large-scale reorganization
process. Causes were dissatisfaction among students and complaints. Employees were also dissatisfied, the
drastic automation measures taken had left them with the virtual equivalent of a conveyor belt job, making
their work considerably less interesting. The systems also didn’t work properly sometimes, and accents were
focused on different topics, and shifted over time. Therefore, a reform of the system was decided upon, and
keeps on evolving.
The screen-level bureaucracy is gradually changing into a system-level bureaucracy. The members of the
organization are no longer involved in handling individual cases but direct their main focus towards system
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