The Ombudsman and Computerized Administration

• Autore: Jon Bing
• Pagine: 83-96

Paper presented to the 3rd international Ombudsman Conference, Stockholm, June 25-26, 1984,

Page 83

@1. Introduction: Deontic systems and public administration

One aspect of the work of ombudsmen Is the control of public administration , the review of decisions In order to ensure that the Ideals of the rule of law and due process Is obsetved. This Is an Important aspect In balancing the powers and distributing the authority In a society.

But public administration Is changing. The Scandinavian welfare states may be an Illustration of a general trend. The objectives of the welfare state requires mass administration, decisions which are relevant to large fractions of the total population. Such administrative systems would be Impossible without the assistance of the computer.

In speaking of computers and the law, the Image of the automatic judge is often Invoked, a cold machine replacing the benevolent judge In court. This Is a false picture. But It nevertheless true that In many jurisdictions the majority of decisions within public administration Is produced by computer-assisted systems. The qualification of such decisions may differ, according to the view taken by the national law. But In the perspective of Norwegian and Scandinavian law, such decisions are legal decisions, and the majority of these legal decisions within our public administration is produced by computerized systems, The electronic judge may still be a vision, but the computerized civil servant has already conquered - and some will say contributed to - the maze of modern bureaucracy.

An example of such a system may be Introduced for reference, the Norwegian system for housing aid ("bostotte"), which Is computerized to a quite high degree. The system Is operated by the Norwegian Housing Bank (owned by the state), and has been running since the early 1970'ies. It Is based on a plenary decision by the Parliament, which grants to certain households an aid making up a fraction of the difference between "real housing costs" and "reasonable housing costs".

Page 84

To apply for such aid, one only Identifies oneself to the system. The system then accesses the population register to check how many individuals are living at the address of the applicant, and their relation to each other; it accesses the register of the tax authority on Income to calculate the Income brackets of the household; it accesses the register of the social security administration to check on the status of the applicant or other members of the household In respect to the different benefits; and it accesses the registers and tables of the Housing Bank to retrleve the correct rates for calculating an eventual grant. Twice annually more than 100.000 decisions are made in this way. Once part of the system, the decisions- will be made on subsequent termlns until the application Is explicitly withdrawn. The decisions are printed out and mailed by the computer system. In the case of a negative decision, the reason Is given exploiting the computer program which Identifies the exact reason for the decision, and In the case of a positive decision, as a postal cheque.

This is an example of an administrative decision made according to a rather complex set of legal rules, but which are virtually "untouched by human hands". It Is mentioned both due to Its high degree of computerization, but also due to the rather through analysis this system has been subject to at the NRCCL (cfr. for Instance Rynning 1976, Hafli 1978), Examples will be drawn from this system In the following; and they should not be interpreted as criticism, only as comments upon properties of deontlc systems.

This type of systems may be called "deontlc systems". There are actually several types of deontlc systems, but they have one characteristic In common: Their programs represent legal norms. The programming language may be regarded just as an artificial language with certain properties. In this language, legal norms may be represented as they may be represented In the natural language of statutory Instruments.

In this paper, the term "norm" will be reserved for the content of the law as Interpreted according to the accepted legal methods on the proper legal sources, These sources will mostly be different texts - statutes, regulations etc. Interpreting this, the lawyer may arrive at an understanding of the law, and this understanding will be of a semantic nature, a norm or a system of norms.

A deontic system in the public administration wil be a system that for some part represent a legal norm In Its program, It may be a trivial norm, like the government's deduction of taxes from the Income of employees, But It may also be a, more complex system, as exemplified by the housing aid system described above,

In this paper, some aspects and characteristics of such systems will be discussed, Obvloulsy no comprehensive or coherent discussion will be possible - partly due to the constraints of length, but - more disturbingly - partly due to a lack- of Insight understanding and analysis of such systems by lawyers.

Page 85

@2. Programming as rule-making; mlemaking as decisionmaktng

To the extent that a computerized system within public administration represents legal norms, these norms have to be represented In the program by the terms of the programming language. The programming language may be conceived as an artificial language not unlike some form of stunted English. But It has a property not usually found In languages - It Is unambiguous.

In the natural language of a statutory Instruments, there may be ambiguity or vagueness. Two lawyers reading the same text and reasoning according to accepted legal method, may arrive at deviating results - the same text (or . set of legal sources) may contain arguments for different legal norms. The choice between the norms would not be resolved until some decision was made - by the public administration Itself, by a court of law or perhaps by a ralemaker, revislng the text. And by this amendment, new possible ambiguities would perhaps emerge.

This Is not so In respect to a programming language. There Is a direct one-to-one relationship between the terms chosen In the language, and the actions carried out by the computer. Glven the same Instructions, the same computer will always carry out the same sequence of operations. There Is no room for a second opinion.

This small comparison between the properties of statutory language and programming language discloses something Important with respect to the programming of deontlc systems: It will always have the form of an interpretation. The programmer will read the natural language texts and represent his understanding of the norms in the unambiguous terms of a programming language - and this will be as much of an Interpretation as when a civil servant bases a decision In a single case on the same legal Instruments.

This Interpretation may, of course, be quite trivial - as It certainly Is with respect to the development of a program, for deduction of taxes from gross Income. But It may also be more complex. In respect to the housing aid system mentioned above, It was documented that the program, contained a set of rules - differentiating the rate according to zones within a city - which were not apparent from any of the legal Instruments which the programs were representing (Rynnlng 1976: 50), One did In this case have an example of a program which In some small degree directly determined the rights of individuals with respect to housing grants. According to Norwegian law (Act of public admlnlstratlve procedure sect 38, cfr. sect 39), such a legal Instrument has to be published according to a special routine In order to be recognized.

Without pursuing this example, It will serve to emphasize that programming actually Is Interpretation - and an authorative Interpretation determining In detail the legal norms, Is actually rulemaking. A decision to develop a deontlc system must also be Interpreted as a decision to delegate some legislative power on a detailed level to those responsible of the programming

Page 86

It should be a cause for concern that those responsible for developing such programs are not always recognized as applying law. It Is at least as Important and critical to make a deontlc system as to make the legal decisions these systems later will stamp out. One should not entrust this process to persons whose lack of legal qualifications would...