The Dutch childcare benefit scandal and the British Post Office scandal have a lot in common. In both scandals people were wrongly accused of not following the rules, without the means to properly defend themselves against the accusations. The British Post Office prosecuted thousands of innocent sub postmasters for financial errors not caused by them, but by the Horizon accounting system. Whereas in the Dutch case, thousands of parents were wrongly accused of welfare fraud and made to repay large sums of money. Iris van Domselaar and Richard Moorhead respond to 5 statements about the scandals to see where we currently stand.

1) Without the use of AI there wouldn’t have been a Post Office scandal or a Dutch childcare benefit scandal

Richard: ‘The Post Office case was really about the accounting system which malfunctioned rather than AI. The system was complicated and unstable. Managers assumed it worked when it didn’t. They ignored the problems, partly because they didn’t understand them.’

Iris: 'It is clear that AI played an important role in the childcare benefit scandal. There was an overreliance on the system and the system itself had discriminatory algorithms based on racial profiling. But this wasn’t the only factor. Without AI similar problems could have occurred.

Richard: ‘The IT people are really annoyed with the scandal, because still no one understands why the system didn’t work. Like in any bureaucracy, it’s convenient to assume how a system works. But if you have a case as a lawyer or a judge and you can’t tell if the system is working or not, you’re stuck. If a system sometimes fails, how do you know when it’s working and when it’s not?’

2) The rule of law has let the victims of these scandals down

Richard: ‘Yes, although the rule of law is now trying to sort it out. The first 20 years were mainly used to process innocent people and lawyers were helping to paint a misleading picture. When former sub-postmaster and campaigner Alan Bates started a case there was a proper legal comeback, which was partly successful in 2019. It will take another year or so before we finally know who is likely to be held accountable. Initially, the scandal was pushed aside easily. It was treated as a case where people are complaining about something they did wrong. It was only because of a series of circumstances their accounting system was looked at more closely. Essentially, the system is geared to protect people who have the means to protect themselves. The “little people” don’t have the same resources.’

Iris: ‘That resonates. In the childcare benifit scandal there has been one lawyer who played a key role in protecting the victims: Eva González Pérez. Without her work, I don’t know where we would have been now. The Dutch legal order failed to protect citizens, also because many citizens didn't and still don't have access to legal aid. The law should be more responsive to citizens, but that’s difficult without the availability of social lawyers. It’s also difficult to do without changing a very dominant culture.’

3) The scandals have led to a diminishing trust in the British and Dutch government

Richard: ‘A bit. In Britain it wasn’t particularly a government scandal. There’s yet to be any jaw dropping evidence against them although there are some strong suspicions. And they are involved. They have been asleep at the wheel. That just feeds the low expectations of government.’

Iris: ‘In the Dutch case there’s a lot of research that shows this scandal has really violated the trust in the government. The legal system failed the victims enormously. And then there’s the tax authority that used discriminative algorithms and applied an all or nothing approach. If parents could not fully prove they had paid for childcare, they had to pay back all of the benefits they received. This was standing practice within the tax authority. They combined that with an internal culture in which they spoke to these parents in a dismissive and sometimes even aggressive way, something I also noticed in the Post Office case. That clearly doesn’t help to build trust.’

4) The root of the problem has been solved since the scandals were revealed

Richard: ‘Absolutely not, we’re nowhere near a solution. It will take a long time. I think there’s some openness to the idea that things have to change a bit. But we’re a long way from a good news story. We haven’t even gotten all the victims compensated yet.’

Iris: ‘The same goes for the childcare scandal. There have been reflection reports and many recommendations. But we haven't seen any fundamental changes yet. There are already new legal cases with similar problems about the missing human factor and thoughtless rule application. I don’t think making better laws is the only solution. How they are applied largely depends on organization culture. We need a broader holistic citizen-oriented view of the legal system.’

5) Law schools play an important role in the prevention of such scandals

Richard: ‘I don’t know about that. They obviously have to try. We are the first people to influence future lawyers. But we all buy into the admiration of commercial practices as something very valuable. I might be cynical about it, but I think we’re pretty bad at this. We do try a lot. We have clinics and those sorts of things. We teach undergrads here some legal ethics, but it’s clear you’re always pushing against a culture that gets them more money. It can be a bit depressing. We try, but we could do more.’

Iris: ‘There has been a call on law schools to educate students more on professional ethics. We have a very ambitious programme with a compulsory first-year course on ethics. But I fully share your concerns, Richard. I just can’t lose all optimism. I have some hope our courses will influence our students as professionals. One of our tasks is also showing the value of different kinds of careers; it’s not just the fancy law firms that need good lawyers. The idea that students want to find purpose in their lives also helps. However, the admiration of the elite practice is also very apparent here. I’m aware of this and we are trying to open up the conversation with our students.’