National administrative law is getting more and more influenced by European administrative law. This is a very interesting evolution. Although societies, culture and habits are different, many problems will be quite the same in every country. Governments and its civil servants will experience likewise demands from its citizens on service-levels and accessibility.
So, it makes sense to take the chance to cross the border and look for solutions you haven’t thought of before and share them. Not only to provide yourself with new perspectives, it’s this particular social capacity, as scientists have examined, that made humans able to develop as we did in comparison to primates.
Learning from other solutions or legal systems might essential, it’s also very inspirational. I am inspired a lot by European documents such as those on Good Administration and Convention 108 on data protection.
All the more reason to take an enthousiastic look at the ReNEUAL-project. ReNEUAL is the Research Network on EU Administrative Law. The objective of ReNEuAL is necessary aswell as ambitious:
“ReNEUAL addresses the potential and the substantial need for simplification of EU administrative law, as the body of rules and principles governing the implementation of EU policies by EU institutions and Member States”
However, I found myself not very fond of the ReNUEAL model rules on Information Management (Book VI)
Decision-making is a data processing process.
This was already the conclusion of the late Pioneer Jon Bing in 1977. A pioneer in ABBA’s decade, but in 2015 we simply can’t afford us to ignore this important conclusion; we can’t study decision-making isolated from data processing. At least not if we pretend to offer solutions in contemporary execution of administrative laws.
If isolated, we will overlook essential ethical and legal issues. And guess what? That is exactly what the ReNUEAL model rules do. In these ‘books’ (mind the word book!) information management is divided not only from making rules (Book II) but aswell from single-case decision-making (Book III).
On making of rules it is already observed that there are many examples of regulations that are made in close relation to the state of the art technology. Automatic fines for speed driving is such an example. The customlaws in EU are designed to facilitate the technological possibilities on data processing. So, rule-making and information management could be studied as one phenomenom.
But of greater concern is the ignoration of the pair ‘decision making’ & ‘information management’. Because it will hinder us from making a frame-work that clarifies responsibilities, duties and rights for citizens.
It’s like building a house; the material that is available or affordable is fundamental for the result. You can’t build a real house only by studying its design. You can study the design. But that is not the same as building it, or, what I think administrative lawyers do, study the building. I see the ReNEUAL Book VI as studying bricks while model-rules would be more helpful and necessary to use, if was chosen to study buildings made with all used materials.
When not to wear retroglasses?
When Madonna was making her famous boattrip in Venice, IT-lawyers used to talk about databases. That was what the Convention 108 was all about. The idea back then was that we had to protect personal data by regulating databases. But in 2015 it is highly unlikely EU administrations only use databases.
Au contraire, I would like to state that the corporation within the EU member states and institutions would not be as efficient as they are today, if they still used databases! It’s an essential part of e-government that we can transfer data, link data and use data, undependable on time and locaties of the data or its users.
There are many examples, but it helps to think on projects like Frontex (http://frontex.europa.eu/) or a far more simple one; VIES (VAT Information Exchange System). Or one could start reading this publication called ‘The Migration Machine’ in which the automation of the immigration process is observed and explained. http://www.academia.edu/2740064/The_Migration_Machine)
Applications, systematics and connections like these made scientists in the Netherlands talk about iGovernment instead of e-Governement. In an influential and milestone publication Corien Prins and others coined the word iGovernment, with the i of Information,
‘to highlight the actual existence of a reality which is entirely different from the reality which currently figures on the political and administrative radar’.
It’s more then a pity that ReNEUAL didn’t use this perspective to come up with model rules. By using a retro version of the daily practice, lawyers will become out-casted for their unhelpful assistance. It will make it very easy for the administrations to ignore them completely. If so, we failed our responsibility to facilitate fairness in the relation Government and Citizen.
Which brings me to my final point. And the moment to mention one very painful question Richard Susskind asked lawyers;
To what problem are you the solution?
Lawyers, and surely administrative lawyers, are not the world’s most tech-gifted people. I am one of them so I feel entirely entitled to state this. But even if we were, our societies are too complex to look at and try to regulate it from one discipline.
The digital identity of Estonia for instance offers us a radical change on citizenship. Or even very close to the EU: free movement of persons in the EU; the movement may be physically very easy but in practice, your social security issues will be very difficult to handle alone: https://www.youtube.com/watch?v=r7ntV0P1A98
That is why all lawyers but should broaden their view and connect with other fields in science, like ITlaw, philosophy and public administration/organisational science. It will make the outcome more relevant and the process more open-minded. So, my dear fellow administrative lawyers; start thinking like Madonna; reinvent yourselves! And work together with others as Madonna does on every new album.