Digitalisation and the (Unintended) Illegal Outsourcing of Legislative and Administrative Power in Denmark

Hanne Marie Motzfeldt, Ayo Næsborg-Andersen

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Abstract

Denmark is far ahead in developing Digital Government. The digital infrastructure is highly developed. Automated decision-making is used on a growing scale within the areas of tax, environmental regulation and welfare. In some narrow and defined areas AI is integrated. This is not without issues, as challenges have emerged. One of these challenges is a loss of insight by the public authorities into the formation of decisions directed at citizens. This is mainly due to the outsourcing of the development and maintenance of the used technologies. As an example, the Minister of Taxation in 2014 reported to the national Parliament that the tax authorities had lost the insight into, as well as the control of, more than 200 systems used within this area of administration. Only the private suppliers of those systems possessed the knowledge necessary to describe and change the functionalities and digital decision-making. Therefore, to a certain extent power of decision-making had – unofficially – been outsourced to private suppliers. This unwanted side effect of digitalisation was, however, counteracted by the Danish Ombudsman in a recent case concerning one of the core Danish digital infrastructure components (the national NemID). In the summer of 2017 the Ombudsman stated that if private companies were to develop and operate such critical digital infrastructure, the explicit acceptance of the democratically legitimised parliament was required. This applies, even though a public procurement procedure has been performed legally correct per the Ombudsman. This paper will focus on this challenges caused by digitalisation of the public sector, the disruption of the allocation of administrative and legislative power in the national constitution. An argument will be developed through an examination of both recent literature as well as case-law from the Danish Parliamentary Ombudsman, ultimately resulting in a presentation of the current Danish solution to the challenges described above – which hopefully can inspire and serve as an input to a discussion of the relationship between private suppliers of digital services and public authorities at a European level.

Original languageEnglish
Title of host publicationProceedings of the 18th European Conference on Digital Government ECDG 2018
EditorsAndres Cernadas Ramos, Ramon Bouzas-Lorenzo
Place of PublicationReading
PublisherAcademic Conferences and Publishing International
Publication date2018
Edition1.
Pages135-141
ISBN (Print)9781912764037
ISBN (Electronic)9781912764037
Publication statusPublished - 2018
EventEuropean Conference on Digital Government - University of Santiago de Compostela, Santiago de Compostela, Spain
Duration: 25. Oct 201826. Oct 2018
Conference number: 18

Conference

ConferenceEuropean Conference on Digital Government
Number18
LocationUniversity of Santiago de Compostela
CountrySpain
CitySantiago de Compostela
Period25/10/201826/10/2018

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Keywords

  • Administrative law
  • Delegation of powers
  • Democratic legitimacy
  • Digital Government
  • Outsourcing

Cite this

Motzfeldt, H. M., & Næsborg-Andersen, A. (2018). Digitalisation and the (Unintended) Illegal Outsourcing of Legislative and Administrative Power in Denmark. In A. C. Ramos, & R. Bouzas-Lorenzo (Eds.), Proceedings of the 18th European Conference on Digital Government ECDG 2018 (1. ed., pp. 135-141). Academic Conferences and Publishing International.