Data protection in the age of welfare conditionality: Respect for basic rights or a race to the bottom?
| Author | Valery Gantchev |
| DOI | 10.1177/1388262719838109 |
| Published date | 01 March 2019 |
| Date | 01 March 2019 |
| Subject Matter | Articles |
Article
Data protection in the age
of welfare conditionality:
Respect for basic rights
or a race to the bottom?
Valery Gantchev
University of Groningen, the Netherlands
Abstract
This article addresses the informational controlpowers of the state to detect social security fraudas
one of the pillars supporting welfare conditionality in WesternEuropean states. It sheds light on the
question of whether the repressive trend of vastly expanding conditions and sanctions attached to
welfare benefits can also be observed in an unwarranted expansionof the adopted control powersof
the government. The articlebegins by highlightingthe importance of data protection law in the fieldof
social security.It then provides a normative yardstick for assessing nationally the control powers by
analysingthe normativecriteria set by theEU data protectionframework, morespecifically withregard
to the purpose limitation principle and the transparency rights of individuals. Three case studies are
carriedout on Germany, the UnitedKingdom and the Netherlandswhich investigatethe conformityof
the control powersof the welfare administration with the basic right to data protection. Thearticle
concludesby providingexplanations forthe diverging level ofprotection in the examinedcountries and
by recommendingstrategies for improving the data protection position of welfare beneficiaries.
Keywords
Welfare conditionality, control, privacy, protection of personal data, profiling, GDPR, SyRI
Introduction
A chief characteristic of the age of welfare conditionality is the tight link between welfare rights
and claimant duties. This characteristic is, however, by no means a new phenomenon; claimant
duties have always been part of social security systems in Europe. The right to social assistance
Corresponding author:
Valery Gantchev, PhD Researcher, Department of Constitutional Law, Administrative Law and Public Administration,
University of Groningen, the Netherlands.
Address: PO Box 716 Groningen 9700 AS, the Netherlands.
Email: v.gantchev@rug.nl
European Journal of Social Security
2019, Vol. 21(1) 3–22
ªThe Author(s) 2019
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DOI: 10.1177/1388262719838109
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was conceptually designed by the architects of the modern welfare state to be a conditional right
which depends on the recipients’willingness, and ability, to take up paid employment.
1
The age of
welfare conditionality is, however, more distinctly characterised by the profound shift that has
been taking place in the balance between welfare rights and responsibilities in favour of the latter.
This shift reflects a new view on the role of the welfare state which found its way into Western
Europe in the last decade of last millennium. Inspired by the Scandinavian experience,
2
the social
democratic parties of the 1990’s embraced Giddens’‘Third Way’
3
strategy to welfare provision
with the aim to ‘transform the safety net of entitlements into a springboard to personal responsi-
bility.’
4
In recent years, this process, which was initiated as creeping conditionality,
5
has reached
new heights and is now being criticised by academics for its unintended effects in moral global
terms as the rise of the repressive welfare state, with repressive trends subject to the spiral of
formulating increasingly stricter obligations and tougher sanctions.
6
Overall, these developments
challenge the post-war idea of social citizenship which is fundamental to the conception of social
security as a right.
7
From a legal perspective, welfare conditionality employs three techniques:
8
(intensified) clai-
mant obligations, (stricter) sanctions for non-compliance and (wider) control powers of the gov-
ernment to monitor and investigate sanctionable behaviour. While the first two elements are
enjoying growing academic attention, the research landscape pertaining to the control powers of
the government has remained largely scarce. The aim of this article is to examine whether the
growing repressive trend which can be observed in the areas of claimant obligations and welfare
sanctions is also reflected in an unwarranted expansion of the control powers of the government.
More specifically, the article critically addresses the powers of the public administration to link
and analyse the personal data of welfare beneficiaries for the prevention and detection of welfare
fraud. Section 2 sheds light on the importance of automated data processing for the public admin-
istration and highlights the role of data protection in safeguarding the basic rights of citizens who
are dependent on the provision of welfare benefits. Section 3 provides a normative yardstick by
exploring some of the requirements which the EU data protection framework prescribes to data
processing in the public sector for the purposes of welfare fraud prevention. Finally, Section 4
carries out three country-specific case studies on Germany, the United Kingdom and the Nether-
lands. The case studies evaluate the extent to which the adopted national control powers are in
accordance with the basic right to data protection. The article concludes by elaborating on the
differences between the level of protection in the examined countries and recommends strategies
for improving the data protection position of welfare beneficiaries.
1. Daguerre and Etherington (2014); Watts and Fitzpatrick (2018).
2. Eichenhofer (2015: 25).
3. See Giddens (1998); for a more detailed elaboration on the philosophical underpinnings of the activating welfare state.
See also Dwyer (2000) and Schwitters and Vonk (2016).
4. Blair (1998), The Third Way: New Politics for the New Century, as cited in: Eichenhofer (2015:24-25).
5. Dwyer (2004).
6. Vonk (2014); for an analysis on the effectiveness, impacts and ethics of welfare conditionality cf. the final findings of the
Welfare Conditionality project <http://www.welfareconditionality.ac.uk/publications/final-findings-welcond-project/>
accessed 10.02.2019.
7. Dwyer and Wright (2014).
8. Watts and Fitzpatrick (2018), see Chapter 3.
4European Journal of Social Security 21(1)
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