On 18 October 2021 the Venice Commission of the Council of Europe (‘European Commission for Democracy through Law’) has pubished an interesting opinon on the legal protection of citizens in the Netherlands.
In the opinion the commission summarizes the questions of the Tweede Kamer (the House of Representatives of the States-General of the Netherlands) in regard of the Childcare Allowance Case (Toeslagenaffaire) as follows:
1) What laws, what implementation or what practices have contributed to the fact that power and countervailing power worked insufficiently in this case and that the citizen was crushed in the middle? What possible solutions are there to repair this and to prevent its occurrence in the future?
2) Is administrative law in the Netherlands, including the Council of State, sufficient, and what checks and balances should be added to the law or the implementation of administrative justice (and possibly adjoining branches of the law), to give citizens adequate protection, including effective access to justice and to legal aid?
The commission is very critical in regard of the Dutch legal system. Their general remarks (page 10) are the following:
41. The Netherlands has an elaborate and comprehensive system for evaluating draft laws. But in this case this system did not work well. Certain risks in the law were not seen or when seen they were discounted. The Advisory Division of the Council of State had identified the need for a way to exercise discretion to alleviate hardship, but the proponents of the law discounted that risk, preferring efficiency in the fight against fraud.
42. It was known that the payment of the allowance up-front to people with limited resources, before proper checking for eligibility, meant that cases of repayment would arise and some of those cases would involve hardship.
43. Perhaps there was also a problem of structural design in separating the policy role of the ministries to promote the social advantages of the benefit, from the implementation role of the Tax and Customs Administration which brought experience of efficiency in the collection rather than disbursement of funds.
44. The rule of law must be applied at all levels of public power, starting with Parliament as the legislative power in the state. Indeed, Parliament as the legislative power has a primary responsibility in safeguarding the rule of law. Parliament’s responsibility in this respect is three- fold. Firstly, Parliament is responsible for enacting legislation and providing sufficient funding to courts and other bodies designated by the Constitution and the law to safeguard the rule of law, so that they can fulfil their functions efficiently.23 Secondly, Parliament should in its law-making capacity also ensure that material laws respect rule of law requirements in terms of foreseeability24 for those affected, precision and scope in the executive’s discretion,25 and respect for human rights. Thirdly, Parliament has a scrutiny function vis-à-vis the executive and to hold it accountable. Parliamentary control goes hand in hand with judicial control.
23 Venice Commission, CDL-AD(2016)007, Rule of Law Checklist, II.E.1.a.x., para 75.
24 Venice Commission, CDL-AD(2016)007, Rule of Law Checklist, II.B.3.
25 Venice Commission, CDL-AD(2016)007, Rule of Law Checklist, II.C.ii.
In its conclusion (pages 27/28), the committee comes up with a large number of far reaching measures:
37. In view of the complexity of the matter, this process of reforms needs to be undertaken in various sectors, the legislative, the executive and the judicial branches. The Venice Commission makes the following proposals, which are far-reaching and are meant as food for thought in the reflection to be carried out by the Dutch authorities:
A. Legislative power:
- the inclusion of hardship or proportionality clauses should be considered for future legislation where this is appropriate to the specific objectives and design of the policy at issue;
- in appropriate parts, new legislation could include provisions that recall or restate general basic principles of good administration;
- the Rules of Procedure of Parliament could be changed to facilitate scrutiny of the executive, this could be done, for instance, by extending the rights of 30 MPs also to initiate hearings and parliamentary investigations or ensuring that a standing committee has specific responsibility for effective scrutiny of laws and their application for compliance with general principles of good administration and the rule of law;
- the right of Members of Parliament to full information without delay under Article 68 of the Constitution should be made be practical and effective;
- both committees and individual MPs should benefit from sufficient staff and resources that are earmarked for scrutiny of the government and laws;
- as concerns attitudes, while this cannot be imposed through legislation, it should be seen as acceptable and even normal that MPs from government parties also represent Parliament as an institution and that participation in parliamentary scrutiny of the government is not an act of disloyalty.
B. Executive power:
- The information flow within civil service and up to the ministerial level, notably on issues that go against current policy, should be improved;
- for individuals, access to relevant information should be made easier, complaint procedures should be made simple and informal and help should be offered on how to complain under a duty of neutrality; the executive should review its Instructions on legislation and amend them as necessary to ensure that its internal assessment of the quality of legislation includes effective monitoring for compliance with basic principles of good administration and the rule of law, such as legal certainty, legitimate expectations, non-discrimination, individual assessment and proportionality;
- the executive should assess and ensure the quality of the law, both when preparing legislation to be submitted to Parliament and when it applies new legal provisions, taking into account possible scenarios and risks; such assessments should be reviewed when appropriate;
- the executive, the Data Protection Commissioner and other relevant bodies should follow the developments in Artificial Intelligence closely and new developments should be taken into account in the design of future AI systems and when existing ones are reviewed;
- sectoral information should be shared widely within the administration to enable relevant input also from other sectors of the administration.
C. Judicial power:
- Channels could be established for the judiciary to draw the other branches attention to legislation which is giving rise to systemic problems in practice;
- based on a profound analysis, it could be considered whether Article 120 of the Constitution should be amended, or whether other mechanisms of constitutional review should be introduced.
Change in the air?
It is interesting to see if the Dutch government and parliament are able to bring about these fundamental changes.
- Letter by the Venice Commission to the speaker of the Dutch parliament (Tweede Kamer), 18 October 2021.
- Report (pdf) of 18 October 2021, also published on the site of the Dutch parliament.
- Page Dutch parliament with letter from the financial commission of the parliament, 18 October 2021.
Raad van State
- Reactie van de Raad van State op rapport Venetië-commissie over rechtsbescherming in Nederland, 18 October 2021.
Council of Europe (COE)
Some of the articles:
- Advies Venetië Commissie aan Nederland: voer constitutionele toetsing in, Advocatie 19 October 2021.
- Adviesorgaan Raad van Europa oordeelt hard over Nederlandse politieke cultuur, Montesquieu Imstituut 12 October 2021.
- Om een nieuwe toeslagenaffaire te voorkomen moet Nederland de positie van het parlement en individuele Kamerleden versterken. Dat stelt de Raad van Europa volgens Trouw en RTL Nieuws in een nog vertrouwelijk rapport, de Volkskrant 12 October 2021.
- Raad van Europa: Nederland moet af van foute politieke cultuur en coalitiedwang, RTL 11 October 2021.