Checks and balances under pressure in the welfare state: Disentangling the rule of law risks of automation and welfare conditionality

Recent digital welfare malpractices have shown how rule of law systems may fail to protect citizens against abuses of power by social security administrations. Despite growing attention for the problems of the digital welfare state, the macro-level of the rule of law and ‘checks on government’ has remained largely overlooked. This article examines how the effectiveness of rule of law control mechanisms is put under pressure in the welfare state, particularly in the context of (semi-)automated systems of surveillance and enforcement. It explains how the convergence of automation and welfare conditionality jeopardises the safeguarding function of legislation, parliamentary and external scrutiny, and administrative adjudication. The first part brings together the literature on automated decision-making, welfare conditionality and the rule of law, and the second part explores these perspectives in a comparative analysis of Robodebt (Australia) and the childcare benefits scandal (the Netherlands). The main findings are threefold. First, rule of law-breakdowns in the digital welfare state stem primarily from excessive welfare conditionality (intensified criteria and obligations, intrusive surveillance and rigid enforcement), rather than automation as such. Second, the politico-ideological appeal of budgetary savings and tough enforcement drives executive branches to disregard constitutionally prescribed controls. Third, conventional control mechanisms fail to curb or counteract this threat due to various institutional weaknesses, from the ex ante stage of legislation to the ex post stage of scrutiny and judicial review. The article concludes by reflecting on the importance of stronger legal safeguards and control mechanisms, to improve the protection of citizens across welfare states.