In Chapter 3, I developed this book’s normative analytical framework by concretising the six principles that can be said to constitute the rule of law in the EU legal order. Drawing on this framework, in this chapter I now revisit each of these principles and carry out a systematic assessment of how public authorities’ reliance on algorithmic regulation can adversely affect them (Section 4.1). I then propose a theory of harm that conceptualises this threat, by juxtaposing the rule of law to algorithmic rule by law (Section 4.2). Finally, I summarise my findings and outline the main elements that should be considered when evaluating the aptness of the current legal framework to address this threat (Section 4.3).

Part one of this book introduces readers to the concept of accountability, setting out the range of current theoretical debates on the meaning and scope of the concept. It further introduces readers to the concepts of accountability deficits (ie too little accountability) and accountability overloads (ie too much accountability), explaining the role that these concepts play in the context of discussions about public governance. Ultimately, it is argued that more theoretical work needs to be done to give shape to these ideas.

Accountability is often referred to as an essential feature of modern democratic society, said to underpin the legitimacy of government. In this context, it is common to hear claims of accountability ‘deficit’ (ie that a particular mechanism or area is lacking in accountability) and ‘overload’ (ie that a particular mechanism or area over-delivers on accountability). Despite the frequency of references to these concepts, their precise content remains undeveloped. This book offers an explanation of the concepts of accountability deficit and overload, as well as a framework for future discussion and exploration of these ideas. It outlines the scale of the challenges of defining an accountability benchmark and developing a picture of accountability mechanisms as a system. While difficult, if accountability is indeed a foundational concept underpinning our system of government, there is merit in meeting these challenges head-on.

One of the most prevalent themes in the accountability literature is claims about the ‘amount’ of accountability that applies in a given situation. There are claims of accountability ‘deficits’ (ie too little accountability) on the one hand, and claims of accountability ‘overload’ (ie too much accountability) on the other. This chapter draws out these claims and argues that, while these claims presuppose that accountability is a measurable concept, the literature often glosses over the underlying question of what is being measured, or how the measurement is to be conducted. This missing dimension of the literature is the core problem tackled in this book, which unpacks two of the hidden assumptions that underlie these claims. The first of these assumptions is that it is possible to identify some form of accountability benchmark, being a normative judgement as to the ‘ideal amount’ of accountability against which an arrangement can be measured and found wanting. The second is that it is possible to assess the universe of applicable accountability mechanisms against that benchmark, and to form a judgement as to whether the system underperforms (deficit) or overperforms (overload).

Part two of this book explores the various challenges that must be confronted in defining a ‘benchmark’ of accountability. It commences by identifying the underlying rationales for accountability, and then addresses the various issues thrown up when seeking to transform the mechanistic description of accountability (ie who is accountable, to whom, for what and how) into a normative account (ie who should be accountable to whom, for what and how). If we were able to do so, we would then have a yardstick against which we could measure the performance of accountability mechanisms and find them wanting.

There is an extensive body of literature addressing the concept of accountability, replete with overlapping definitions. This chapter introduces readers to this wide body of cross-disciplinary literature to provide a picture of areas of agreement and disagreement amongst theorists. Though accountability remains a contested concept, there is general agreement that accountability refers to a relational mechanism that can be analysed within the framework of the questions: who is accountable, to whom, for what, and how? One of the largest unresolved questions about accountability, as explored in this chapter, is whether it is simply a mechanical concept (ie a description of a mechanism with certain attributes) or more broadly reflects a value or ideal (ie the notion of being an accountable person). The conclusion drawn here is that it is particularly difficult to divorce the concept of accountability from a normative background in discussing concepts of accountability deficits and overloads. Each of these concepts rests on the normative assumption that it is possible to identity an ‘ideal amount’ of accountability.

Accountability is often referred to as an essential feature of modern democratic society, said to underpin the legitimacy of government. In this context, it is common to hear claims of accountability ‘deficit’ (ie that a particular mechanism or area is lacking in accountability) and ‘overload’ (ie that a particular mechanism or area over-delivers on accountability). Despite the frequency of references to these concepts, their precise content remains undeveloped. This book offers an explanation of the concepts of accountability deficit and overload, as well as a framework for future discussion and exploration of these ideas. It outlines the scale of the challenges of defining an accountability benchmark and developing a picture of accountability mechanisms as a system. While difficult, if accountability is indeed a foundational concept underpinning our system of government, there is merit in meeting these challenges head-on.