Symposium: The Dutch SyRI Case: Some Thoughts on Indivisible Interferences and the Status of Social Rights

Ingrid Leijten

Leiden University

Human rights potentially conflict with one another. This is particularly visible during the current Covid-19 crisis. The right to the highest attainable standard of health, but also to access to affordable housing and social security, impose positive obligations on States that conflict with their duties to secure other rights, such as freedom of movement or property rights. In the context of the pandemic, a difficult dilemma is also posed by surveillance techniques that are used to, for example, track people’s behaviour through cell phones. This results in an interference with their right to privacy that may or may not be balanced by protecting the right to health and life.

Yet, besides being in conflict with one another, human rights are also ‘indivisible, interrelated and interdependent’. This catchphrase is generally used to refer to the overlap between civil and social rights. For example, the right to food is crucially important for protecting the right to life, and there is a close link between the right to protection of property and social security. In line with this, surveillance is generally seen as interfering with privacy rights (while protecting e.g. the right to health). However, it can also simultaneously breach civil and social rights – as well as lead to discrimination. A good example of such ‘indivisible interference’ is presented by the Dutch SyRI case. Recently, the Hague District Court held that the Dutch Systeem Risicoindicatie (System for Risk Indication; SyRI), which is used to report on risks of individuals committing social security fraud, violates Article 8 of the European Convention on Human Rights (ECHR). Besides being a matter concerned with privacy rights, the issue at stake can also be framed as concerning the right to social security, and the discrimination and stigmatization of those living on benefits.

In October, several months before the district court’s judgment was rendered, it was Philip Alston who raised awareness of the SyRI case’s social rights dimension. In his capacity as Special Rapporteur on extreme poverty and human rights he presented a report on the digital welfare state, accompanied by a press release titled ‘The Netherlands is building a surveillance state for the poor, says UN rights expert’. As Amicus Curiae, Alston also submitted a brief in which he explains his interest in the SyRI case by referring to trends in political discourse on the welfare state and the fact that it forms one of the first legal challenges fundamentally contesting the use of digital technologies for addressing welfare fraud on human rights grounds.

Besides addressing effects on the right to privacy, Alston sets out to discuss SyRI’s implications for the human right to social security. This right is included in Article 9 of the International Covenant on Economic, Social and Cultural Rights (ICESCR) and various other international human rights treaties. Yet despite the firm position of social security and assistance as a matter of right in postwar human rights law, welfare states have come under a sustained assault. This is visible in efforts to reduce expenditures and make systems more ‘efficient’ and ‘cost-effective’. In line with this, a focus on fraud and conditionality creates an atmosphere in which ‘digital tools are being mobilized to target disproportionally those groups that are already more vulnerable and less able to protect their social rights’.

According to the Committee on Economic, Social and Cultural Rights (CESCR), the ‘withdrawal, reduction or suspension of benefits should be circumscribed, based on grounds that are reasonable, subject to due process, and provided for in national law’. Together with the requirements of proportionality and transparency, this lays bare the problems inherent in the use of SyRI. The system relies on broad categories of personal data and it is unclear for welfare recipients – and others – how the algorithm turns these into a risk score that can lead to an individual assessment and eventually a sanction. Some information is deliberately kept secret for the reason that those committing fraud should not know what to do or avoid. This conflicts with the rule of law as it does not leave room for public scrutiny. Given the small percentage of welfare recipients committing fraud, according to Alston they ‘have a right not to be singled out for disproportionately intrusive monitoring which can have a variety of negative and unjustified consequences’.

In the District Court’s judgment, the focus lies on the right to privacy as protected by Article 8 ECHR. This is understandable because formal laws cannot be reviewed against the Dutch constitution (which includes some weakly formulated social rights), while international social rights norms generally do not allow for direct application either. Moreover, the protection offered by the ECHR in the field of social security is partial and limited. The issue of discrimination and stigmatization of the poor and of recipients of benefits, as brought up by the plaintiffs and discussed by Alston as well, also gets little attention. At most, it seems to play a limited role in the court’s overall assessment of whether the interference with private life is proportionate. Yet, the issue is particularly relevant since SyRI exclusively has been used in ‘problem neighbourhoods’. This increases the chance that fraud is being found there and the reputation of these neighbourhoods and the persons living there gets (even) worse.

The fact that the Court finds a violation of the right to privacy results in a victory for the plaintiffs, welfare recipients and society at large. Large numbers of personal data should not be used in an opaque way to create risk profiles and track down and punish fraud. Is it regrettable nevertheless that the case was framed as a privacy rather than a social rights issue – in the judgment as well as in the media. The fact that rights are generally interpreted broadly and are (hence) indivisible means that protecting a certain right requires or indirectly leads to protecting other rights as well. A failure to protect a fundamental civil right may, in turn, interfere with one or more other social rights as well, and vice versa. This phenomenon of indivisible interferences results in a variety of avenues for judicial review and possibilities for redress. And yet it may also result in downplaying, in particular, the social rights issues at stake. Generally, review based on social rights is weaker and reparations are (perceived to be) more problematic, that is, if judicial review is allowed in the first place. In reading the SyRI judgment, we might forget that just like the right to privacy, also the right to social security crucially involves obligations of transparency and non-discrimination and must secure the rule of law in order to not become illusory. By focusing on the more legally feasible route, social rights and social policy issues may remain invisible and fated to be seen as second-rank.

Just as conflicts between rights, indivisible interferences are omnipresent. Plenty of fact patterns simultaneously involve civil and social rights interferences alike, think for example also of lock down measures that interfere with our fundamental freedoms and rights to work and education at the same time. ‘Corona apps’ may promote the right to health, but can also trigger the development of surveillance methods that target particular social groups and increase conditionality. In the light of this, it would be interesting to do more research into occurrences of indivisible interferences and their effects. The idea of indivisibility generally supports the call for stronger social protection, but it may also lead to overshadowing social rights and the specific interests they stand for.  

Ingrid Leijten is Assistant Professor of Constitutional and Administrative Law at the Leiden Law School in the Netherlands.

Suggested Citation: Ingrid Leijten, “The Dutch SyRI Case: Some Thoughts on Indivisible Interferences and the Status of Social Rights” IACL-IADC Blog (19 May 2020) https://blog-iacl-aidc.org/social-rights/2020/5/19/the-dutch-syri-case-some-thoughts-on-indivisible-interferences-and-the-status-of-social-rights