Ref. DC 185(2021)

Venice Commission Opinion on the Legal Protection of Citizens in the Netherlands

Strasbourg, 18.10.2021 – The European Commission for Democracy through Law (known as the “Venice Commission”) has published today an opinion on the Legal Protection of Citizens in the Netherlands, following a request by the Speaker of the House of Representatives.

The Venice Commission is of the opinion that Netherlands is a well-functioning state with strong democratic institutions and safeguards for the Rule of Law. While the shortcomings in individual rights protection uncovered in the Childcare Allowance Case are indeed serious and systemic and involve all branches of government, it appears that eventually the rule of law mechanisms did work. The reports of the Ombudsman, the Parliamentary committee, and the legislative amendments show the reaction of the different mechanisms in the Dutch system.

The Childcare Allowance Case concerns the principle of legal certainty, which is a fundamental rule of law requirement, and includes both the foreseeability of laws and legitimate expectations. The childcare allowance scheme was construed so that parents did not receive benefits and thus a legal right, but were rather provisionally granted advances, and payments were conditional. While such a legal structure is acceptable, it is vulnerable for misunderstanding in the context of welfare allowances, which often are considered legal rights. Confusion as to the legal nature of childcare allowance appears to have been aggravated by the fact that there was little or no verification at the time of application and demands of repayment came only years later. Further, until July 2020, the law in question did not contain a general hardship clause, but only a limited one. It is the responsibility of the legislator to ensure that laws are foreseeable and have effects that meet the individuals’ legitimate expectations. It is also the responsibility of the legislator to balance the public administration’s interests of efficiency with the individual’s interest in legal certainty.

Therefore, the Venice Commission has welcomed several national initiatives that have been taken or that are on-going. Many of these reforms were announced in the letter of 15 January 2021 of the Prime Minister to the President of the House of Representatives and include improving the quality of legislation by better taking into account input from civil society and developing pilot legislation, improving access to information to Parliament and notably by giving up on the practice of considering “personal opinions” as internal documents from information provided to the courts, or improving information flow within and between the ministries. In view of the complexity of the matter, however, the Venice Commission has proposed a series of reforms to be undertaken in various sectors: the legislative, the executive and the judicial branches.

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 Artificial Intelligence 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.

The Venice Commission is confident the on-going and further reforms will lead to an improvement of the situation avoiding a repetition of problems that surfaced in the Childcare Allowance Case.

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