Fearing the future without romanticizing the past: the role for international human rights law(yers) in the digital welfare state to be

Universal Credit is one of the foremost examples of a digital welfare system and the UK’s approach to digital government is widely copied. What can we learn from this case study for the future of international human rights law in the digital welfare state?

Last week, Victoria Adelmant and I organized a two-day workshop on digital welfare and the international rule and role of law, which was part of a series curated by Edinburgh Law School. While zooming in on Universal Credit (UC) in the United Kingdom, arguably one of the most developed digital welfare systems in the world, our objective was broader: namely to imagine how and why law, especially international human rights law, does and should play a role when the state goes digital. Below are some initial and brief reflections on the rich discussions we had with close to 50 civil servants, legal scholars, computer scientists, digital designers, philosophers, welfare rights practitioners, and human rights lawyers.

What is “digital welfare?” There is no agreed upon definition. At the end of a United Nations country visit to the UK in 2018, where I accompanied the UN Special Rapporteur on extreme poverty and human rights, we coined the term by writing that “a digital welfare state is emerging”. Since then, I have spent years researching and advocating around these developments in the UK and elsewhere. For me, the term digital welfare can be (imperfectly) defined as a welfare system in which the interaction with beneficiaries and internal government operations is reliant on various digital technologies.

In UC, that means you apply for and maintain your benefits online, your identity is verified online, your monthly benefits calculation is automated in real-time, fraud detection happens with the help of algorithmic models, etc. Obviously, this does not mean there is no human interaction or decision-making in UC. And the digitalization of the welfare state did not start yesterday either; it is a process many decades in the making. For example, a 1967 book titled The Automated State mentions the Social Security Administration in the United States as having “among the most extensive second-generation computer systems.” Today, digitalization is no longer just about data centers or government websites, and systems like UC exemplify how digital technologies affect each part of the welfare state.

So, what are some implications of digital welfare for the role of law, especially for international human rights law?

First, as was pointed out repeatedly in the workshop, law has not disappeared from the digital welfare state altogether. Laws and regulations, government lawyers, welfare rights advisors, and courts are still relevant. As for international human rights law, it is no secret that its institutionalization by governments, especially where it comes to economic and social rights, has never been perfect. And neither should we romanticize the past by imagining a previous law and rules-based welfare state as a rule of law utopia. I was reminded of this recently when I watched a 1975 documentary by Frederick Wiseman about a welfare office in downtown Manhattan which was far from utopian. Applying law and rights to the welfare state has been a long and continuous battle.

Second, while there is much to fear about digitalization, we shouldn’t lose sight of its promises for the reimagination of a future welfare state. Several workshop participants emphasized the potential user-friendliness and rationality that digital systems can bring. For example, the UC system quickly responded to a rise in unemployment caused by the pandemic, while online application systems for unemployment benefits in the United States crashed. Welfare systems also have a long history of bureaucratic errors. Automation offers, at least in theory, a more rational approach to government. Such digital promises, however, are only as good as the political impetus that drives digital reform, which is often more focused on cost-savings, efficiency, and detecting supposedly ubiquitous benefit fraud than truly making welfare more user-friendly and less error-prone.

What role does law play in the future digital welfare state? Several speakers emphasized a previous approach to the delivery of welfare benefits as top-down (“waterfall”). Legislation would be passed, regulations would be written and then implemented by the welfare bureaucracy as a final step. Not only is delivery now taking place digitally, but such digital delivery follows a different logic. Digital delivery has become “agile,” “iterative,” and “user-centric,” creating a feedback loop between legislation, ministerial rules and lower-level policy-making, and implementation. Implementation changes fast and often (we are now at UC 167.0).

It is also an open question what role lawyers will play. Government lawyers are changing primary social security legislation to make it fit the needs of digital systems. The idea of ‘Rules as Code’ is gaining steam and aims to produce legislation while also making sure it is machine-readable to support digital delivery. But how influential are lawyers in the overall digital transformation? While digital designers are crucial actors in designing digital welfare, lawyers may increasingly be seen as “dinosaurs,” slightly out of place when wandering into technologist-dominated meetings with post-it notes, flowcharts, and bouncy balls. Another “dinosaur” may be the “street-level bureaucrat.” Such bureaucrats have played an important role in interpreting and individualizing general laws. Yet, they are also at risk of being side-lined by coders and digital designers who increasingly shape and form welfare delivery and thereby engage in their own form of legal interpretation.

Most importantly, from the perspective of human rights: what happens to humans who have to interact with the digital welfare state? In discussions about digital systems, they are all too easily forgotten. Yet, there is substantial evidence of the human harm that may be inflicted by digital welfare, including deaths. While many digital transformations in the welfare state are premised on the methodology of “user-centered design,” its promise is not matched by its practice. Maybe the problem starts with conceptualizing human beings as “users,” but the shortcomings go deeper and include a limited mandate for change and interacting only with “users” who are already digitally visible.

While there is every reason to fear the future of digital welfare states, especially if developments turn toward lawlessness, such fear does not have to lead to outright rejection. Like law, digital systems are human constructs, and humans can influence their shape and form. The challenge for human rights lawyers and others is to imagine not only how law can be injected into digital welfare systems, but how such systems can be built on and can embed the values of (human rights) law. Whether it is through expanding the concept and practice of “user-centered design” or being involved in designing rights-respecting digital welfare platforms, (human rights) lawyers need to be at the coalface of the digital welfare state.

March 23, 2021. Christiaan van Veen, Director of the Digital Welfare State and Human Rights Project (2019-2022) at the Center for Human Rights and Global Justice at NYU School of Law.