Council of State interview in the Dutch Trouw newspaper, 16 April 2021, in the daily section: “Involvement”. Translated by Cora Westerink
Trust in the rule of Law can erode
Text: Wendelmoet Boersema and Bart Zuidervaart
Photo: Inge van Mill
State emergency law may be out of date, observes Vice President of the Council of State Thom de Graaf, looking back at the 2020 corona year.
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The corona crisis raises the question: is state emergency law still of our time? The vice president of the Council of State Thom de Graaf looks back on the year 2020 in the essay Maintaining Trust, which was published yesterday with the annual report. It had two major crises: corona and the childcare benefits affair.
While the corona crisis had been playing out for months, the Temporary Act covid-19 came along, as the legal basis for the emergency measures. “That just took too long.” De Graaf therefore argues for a thorough debate on new, longer-lasting state emergency law, which must be implemented before a new crisis breaks out. Because that crisis is coming, of that he is convinced.
Meanwhile in the Binnenhof informateur (negotiator) Herman Tjeenk Willink is trying to restore confidence in and withín politics. When the real negotiations about a new government will begin, De Graaf will also be there. Together with the other High Institutions of State, the president of the Court of Audit and the National Ombudsman, he wants to stress the importance of restoring trust and the human dimension in government agreements. Keep an eye on what the citizen can handle, was his plea.
What is your greatest concern, when you look at the events of the past year? “My biggest concern is that trust as a binding agent in the rule of law can erode. That it is crumbling at the edges. The year 2020 showed a very mixed picture. In the issue of childcare benefits, the fundamental principle of mutual trust was neglected. The government distrusted its citizens, turned over every receipt, imposed heavy penalties for minor citizens mistakes. As a result, citizens lost trust in the government.
“During the corona crisis the government was initially trusted a lot. Due to discussions, especially on social media, and the protests of certain groups, this sometimes seems different, but citizens are still prepared to accept far-reaching restrictions of their fundamental rights by the government. There has been a lot of communication. The government uses scientific expertise in its decisions and shows it. Imagine if this were done without expert advice and only based on consultations of ministers in the Catshuis. Economic support was handed out based on trust. Looking back at 2020, we saw grossly positive things there.”
Surely there are plenty of examples where the government has not acted or communicated predictably and consistently. Take vaccination policy, or the handling of relaxations. “I also find that very difficult and don’t always understand it. I see two poles now: the health crisis plus the medical experts who keep warning about it, and the discussion about the necessary support in society. If citizens are no longer willing to comply with the rules, there is little point in having more and more enforcement. The government finds itself between these two poles. The OMT shouting “Don’t do this,” and mayors saying “Do this! Then it takes political steering to determine the right ratio. Both parties will always be a little embarrassed that they are not quite right. What I see is that in the Netherlands support for the corona policy is still reasonably high, despite the growing signs of dissatisfaction. The longer the measures continue, of course, the harder it will be to maintain that support.”
In your annual report from the Council of State, which is here before us, you also warn that there needs to be a better legal basis for emergency measures in future crises. “I marveled at a few things. In the spring of 2020, it was already perfectly clear that emergency ordinances are not the appropriate basis for such far-reaching and long-lasting restrictions on fundamental rights. It is democratic of the utmost importance that the restriction of fundamental rights was not left only to the security regions and the mayors, but that such a thing is enshrined in a law. Yet it took a very long time, until the end of 2020 before finally the Temporary Act Measures covid-19 was in the Official Gazette.”
What was the reason for that? “It was debated for a very long time. Look, the Council of State had already advised before the summer of 2020 that the legal basis had to be different. Those emergency regulations were for the short term. The Chamber then went on summer recess while the need remained. That just took too long. It also raises other questions. The existing crisis legislation was apparently not suitable, so new rules were designed in the middle of this crisis. That is not the ideal sequence, of course; the package should have been ready already.
Doesn’t that Temporary Law covid-19 provide a sufficient basis for future crises? “That law is temporary, the name itself says it all. The House of Representatives can keep extending this law, but when the corona crisis is over, this law is over too. Look, it’s significant that the existing legislation on declaring a state of emergency, (the Extraordinary Powers of Civil Authority Act) has remained in the closet, except for that brief one when the government wanted to base the curfew on it. There has never been a good explanation for it, why it had to be this way. This raises the question: Is state emergency law still of this day and age? It has been important legislation, for flood control for example, but perhaps not always useful currently. Then you must look for a better set of instruments, which both Houses of Parliament must then discuss thoroughly. This must be in order before the next crisis breaks out. Because there certainly will be one, virological, or climatic, or digital.”
There is also a lack of understanding about the restriction of fundamental rights, you see in the annual report. Why can one person go to church and another does not play soccer, you hear. “Fundamental rights are fundamental, but they are relative in the sense of what they mean to people. One person values freedom of religion immensely, another finds it irrelevant to his own life. That sometimes gets in the way of an awareness of the great significance of these fundamental rights. Fundamental rights protect us from the power of the government, and impose obligations on that same government. I would like people to know more about this, what our legal system entails, how institutions function, and how fundamental rights relate to each other. This is sometimes lacking, even in the media and even in parliament itself. Understanding of everyone’s role in the constitutional state is no longer self-evident. That affects the functioning of the rule of law.”
This also touches on how one sees the role of the judge. “To give an example: The House of Representatives spoke of the need for judges to have more room to soften strict legislation in individual cases by invoking the principle of proportionality. In the same week, a law is on the table that allows judges to impose community service sentences in individual cases on people who attack social workers. So, on the one hand the judge has to ‘right’ what is wrong, on the other hand there is no trust that a judge will impose an appropriate punishment on an individual.
“I don’t speak justice in the Council of State, only the judges of the Administrative Law Division of the Council of State do that. From this position it is difficult to criticize, but I see at least some incongruity, to put it nicely.
You are advocating for more attention to social justice. Citizens are getting into a tight spot. The highest administrative court made excuses in Trouw for its own actions in the benefits affair. This week scholars and lawyers came forward with a cry for help that they also see the same harrowing situations in immigration law as in the benefits affair. “However difficult it is to explain here within the Council of State there is a hard division between the Administrative Law Division and the Advisory Division. I am not a member of the Administrative Law Division, nor do I get involved in the substantive jurisdiction. I can say this with some caution: over the years we as advisers have always warned Cabinet and Parliament that there was no room to accommodate distressing cases. The legislator did not pick up on that.
“The law is an ‘expression of will’ of politicians. Strict and complex legislation, plus a massive implementation practice. Computer says no. Then it starts to get uncomfortable for the judge who has to find something about it in an individual case. All of this led to the administrative law judge’s turnaround in the benefits case in 2019, where the judge put “justice” above the law itself. Could and should that have been done earlier? The Administrative Law Division is now reflecting on this. We will probably publish our findings after the summer. Independent experts are guiding this, and discussions are taking place with parents, lawyers, lower courts and scientists. And we look ahead: is there other, too strict or hard legislation where the same thing can play?”
Like maybe immigration law….“I don’t want to get into that political territory. Everything starts with the legislator. Does he sufficiently realize how his legislation works out in practice? For example, it was also a political choice to remove the discretionary power in aliens’ law (the ‘mercy judgment’ as to whether an asylum seeker may stay in the Netherlands) from the minister.”
Yet the Council of State is also part of the system. “Certainly, that’s why we’re reflecting on it. We also discuss whether we could have intervened sooner.”
Or is it that sometimes not enough attention is paid to the legislative recommendations? In it, the Council warned several times against legislation that was too hard. “If you want everyone to always do what you say, then you should sit in government yourself. We are an advisory body. An immortally important body, we think, of course, but advisory. The government or parliament need not take any notice of it. Professionally, I find that annoying, I just can’t help it. We can question: does the government listen enough to the independent colleges, such as the Council of State, but also the National Ombudsman and the General Court of Auditors?
“It is the task of the Council of State to hold up a mirror to government and parliament. Often, they do follow our advice. But sometimes there is simply no political space to listen. Then that space is filled by the coalition agreement, agreements within the coalition or all kinds of other agreements.
And then we are back to the formation. A thick coalition agreement is not necessary, says Herman Tjeenk Willink, one of your predecessors at the Council. “It is logical and inevitable that parties to a formation want to set down their agreements well. If they focus on ‘what’ they want to regulate: their goals, how much money and resources. And then give the new cabinet the space for the “how”. How the goals can best be achieved with careful legislation. The democratic debate and the legislation will benefit from this. And thus, ultimately also the people for whom it is all intended.”
Quotes by Thom de Graaf, put between the texts in the original article:
‘Understanding of everyone’s role in the rule of law is no longer obvious / self-evident, even in parliament’
‘We reflect on whether we could have intervened earlier on the surcharge issue’
‘Land rights are fundamental, but they are relative in the sense of what they mean to people’
