An external committee commissioned by the Dutch Bar Association (NOvA) has prepared an independent report on the rule of law content of the Schoof cabinet’s coalition programme. Jasper Krommendijk, professor of Human Rights and director of the Research Centre for State and Law (SteR) at Radboud University was part of this committee.
’The coalition programme reveals a government that wants to categorically deny certain people effective access to justice and a fair go to court. There is even a foreseeable abuse of power in the proposed use of state emergency law in asylum and migration. Here, the foundations of the rule of law are being tampered with. The government cannot thereby pretend to be a fully-fledged constitutional state, all fine declarations notwithstanding,’ the committee says.
The committee sees nine parts of the coalition programme as violating the principles of rule of law. For the committee, activating the exemption provision of the Aliens Act 2000 is unacceptable from a constitutional-democratic perspective. The government does not substantiate in any way the legitimacy of such state emergency law. The committee also qualifies the announced ’asylum decision freeze’ and the further tightening of reception conditions as contrary to the rule of law.
The committee also qualifies the lack of concrete measures to counter the decline in the social lawyer profession as red. Sufficient access to justice especially for economically vulnerable people is of great importance in a rule of law. Where action is needed to maintain the rule of law, government inaction leads to the deterioration of the rule of law.
Report
The committee’s report was presented on Thursday 10 October and received considerable attention. The review was carried out through a ’quick scan’, in which the committee limited itself to a basic legal test with three main criteria: reliable government, fundamental rights and effective legal protection. Using this assessment framework, the plans were qualified as green for plans that can improve the rule of law, yellow for plans that pose a risk to the rule of law and red for plans that violate principles of rule of law. The committee gives nine parts of the coalition programme the qualification red and sees them as contrary to principles of rule of law. Twenty-eight yellow qualifications were also given and some six ’green’ proposals that could strengthen the rule of law.
Reducing inequality European and Caribbean Netherlands
The committee is positive about this government’s plans to introduce the right to err. This is seen as potentially strengthening the rule of law. The committee also sees the cabinet’s proposals to reduce inequality between the European and Caribbean Netherlands by providing the same social benefits as a strengthening of the legal position of Caribbean Netherlands residents.
The committee is cautiously positive about the proposal to lift the constitutional review ban to allow judges to test laws against classic fundamental rights in the Constitution. This proposal receives support, but there are concerns about the lack of further elaboration on this, especially also around the introduction of a constitutional court. The committee also qualifies the corporatisation of the Administrative Law Division as green. It believes that the further separation of the Council of State’s judicial and advisory functions strengthens the rule of law.
Risks to the rule of law
Twenty-eight points in the coalition programme the committee qualifies as yellow and thus as a risk to the rule of law. These include, for instance, the intention to repeal the dispersal law and the prohibition of priority for status holders in housing, which is expected to increase the already existing pressure on asylum reception. Pursuing an opt-out clause for European asylum and migration policy also touches on the principles of supranational cooperation and community loyalty, according to the committee. Proposed plans to restrict interest groups’ access to justice are assessed by the committee as risky for the rule of law.
The committee was chaired by Elaine Mak (Professor of Encyclopaedia of Law and Legal Theory, Utrecht University). The committee further consisted of Lieneke Slingenberg (Professor of Migrants and the Rule of Law, Vrije Universiteit Amsterdam), Camilo Schutte (lawyer at Avizor and chair of the NOvA Advisory Committee on the Rule of Law) and Channa Samkalden (lawyer at Prakken d’Oliveira and member of the NOvA Advisory Committee on the Rule of Law).