Conscientious, with respect for the rule of law and trust in the public

Joint paper of the Vice-President of the Council of State, the President of the Netherlands Court of Audit and the National Ombudsman concerning the negotiation of a new coalition agreement. This explanation was given today at the request of the negotiating political parties.

The government often pays too little attention to people’s concerns, interests and possibilities. In combination with complicated and uncertain financing and mechanical implementation, laws that are careless, unnecessarily complicated and overly rigid undermine the public’s trust in government. This tide has to be turned. On the basis of the advice and reports issued by their respective High Councils of State, the Vice-President of the Council of State, the President of the Netherlands Court of Audit and the National Ombudsman together consider the following three issues to be key to restoring public trust. These issues represent a significant challenge for the new government and must be taken into account during negotiation of the coalition agreement.

Legislation, policy and implementation

The dividing line between legislation and policy on the one hand and implementation on the other is problematic. It runs both horizontally, within central government, and vertically, down to local government level. Implementation is often remote – quite literally – from central government. As a result, policy makers in the ministries have little understanding of the problems that policy implementation can create. The government and parliament must be aware that the laws they make can have very serious consequences for real people. Implementing bodies, local authorities and the public perspective must therefore be taken into account at an early stage when drafting new laws. Furthermore, sufficient time should be allowed to debate new laws in parliament and then implement them. The debate should be held with a view to the anticipated outcomes in practice and should be to the satisfaction of both the government and the public.

Many laws are unnecessarily complicated. This is often the result of complex political compromises. Binding political and social agreements are frequently translated word for word into law without proper consideration of their practicability or the public’s ability to act. Laws and rules then miss their target. Political and social agreements should be confined to policy intentions. They must not be absolutely binding on how the legislator puts intentions into practice. They must leave some leeway for the intentions themselves.

The combination of incomprehensible regulations and strict implementation and enforcement creates serious problems for many people. The people who are already struggling in our society are precisely the ones who suffer. The government must overcome its fear of simplicity. As a matter of principle, laws must be clear and understandable so that willing citizens know what is expected of them. Simpler laws would also improve implementation and allow the government to show that its purpose is to serve the people.

Consideration of the human dimension

When laws and rules have undesirable or even detrimental consequences, the implementing bodies and courts are often urged to take a more personalised approach. The child benefits scandal is a poignant example of this. Adding a hardship clause or allowing recourse to the universal principles of law could have softened the hard edges of the law. The response is understandable but it also raises questions. If a law is based on weak foundations, a personalised approach would be a never-ending challenge. Laws are inevitably generic in nature and are drafted such that they are predictable and offer legal certainty and equality. In the fields of taxation, social security and tax relief (allowances), the law is applied and implemented universally and legal processes must therefore be uniform.

In and of itself a personalised approach is not the solution to unjust laws. Personalisation is the destination, not the departure point. It should be applied when a generic rule does not work in a particular case. Relevant laws should be critically reviewed and amended where possible. Instead of resorting to only personalisation, implementation should reflect the human dimension in the law, with the government taking account of people’s ability to act and helping them where necessary. The government must demonstrate that it understands this by giving higher priority to the public perspective, not only in its laws and regulations but also in its governance culture.

Rule of law built on trust

The past year has shown that democratic rule of law is built on trust. The government can take effective measures in a crisis such as the current COVID-19 pandemic only if it enjoys the support of the public and their representatives in parliament. Public trust in the government is a founding pillar of the rule of law. Scandals have dealt that trust a hefty blow over many years, with the child benefit scandal being the most recent and probably most pointed. The recurrent theme in all parliamentary inquiry reports is the succession of careless or poor laws, complex implementation errors, lack of transparency and incomplete information and accounts.

Trust requires conscientious, good laws and an open, expert and accessible government. People must know who they can turn to for help with their problems. They must have access to the government and ready access to legal protection from the government if they need it. No concessions must be made to openness with the public and their parliamentary representatives. 

Giving trust is closely linked to receiving trust. This has been missing too often and the government has looked upon the public with more than a little suspicion. Trust, however, must be mutual. This awareness must reverberate more clearly through legislation, policy and implementation, as must the notions of openness and consistency. Be clear about who has which tasks and powers, what financial resources will be available for them and where the resources will come from.

Where trust unravels, the rule of law unravels. That is why mutual trust and respect for democratic institutions are crucial. The value of those institutions should not be underestimated. But it is. Placing public money in funds beyond parliamentary scrutiny, for instance, undermines parliament’s right to approve the budget. The advice and reports of independent advisers are regularly brushed aside without reason. Only limited attention is paid to the quality of legislation and due legal process – key functions of government and parliament. Knowledge of and respect for each other’s role in the rule of law, such as the independent administration of justice, are not always clear. Better mutual trust among the actors in the rule of law strengthens the trust of the people whom the rule of law and those actors should serve.

Thom de Graaf
Arno Visser
Reinier van Zutphen