Did the crumple cabinet Sheaf ever exist? The temptation is great to replace the nineteen months of government of the PVV, BBB, VVD and NSC. Unique for its politically weightless puppet prime minister, flat populism, colorful and incompetent ministers and the many clashes. The relief after this embarrassing display led to a poorly thought-out coalition agreement and a missing parliamentary majority. Which now pays off in uncertainty, improvisation and shortness of breath.
A post mortem is welcome after every disaster. Published at the end of April bundle The Sheaf experiment many experts use the scalpel. This begs the question: did ‘Schoof’ provide a glimpse of the future or was this incidental damage to the interior? And is there a ‘constitutional criminal record’ and can you call it that?
In one chapter, nine (!) authors examined the reception of judicial decisions and legislative advice by the Schoof cabinet. Because of its precision, this analysis is as balanced as it is deadly. The conclusion is that Schoof and his colleagues presented an ambitious restoration agenda for trust in politics and administration, but in practice they responded to critical advice and corrective statements with “ignore, act and train”.
For example, in two bills, the cabinet did not pay attention to the rare C and D recommendations from the Council of State: do not do so or only submit them after major adjustments. It thus ignored fundamental rights and legal protection and took major legal risks. Power took precedence over right without hesitation.
In a number of cases, ministers fiercely attacked unwelcome judicial decisions (Marjolein Faber’s “black day for the Netherlands”), thereby undermining the authority of the judiciary. For example, the government clearly found judicial permission for the mandatory publication of emissions data at company addresses to be unpalatable. Quite a contrast with the constitutionally neutral and therefore appropriate response that a government should give to disappointing statements, namely ‘will study’ them.
In a constitutional state, power adheres to the law, voluntarily and preferably without whining. This cabinet turned out to be complacent and bluntly turned away from the judge. If it did listen, it did so reluctantly. Ministers who were criticized by the Council of State held their ground. So brusque, contradicting and politicising.
The authors of the chapter conclude with a sense of understatement that the Schoof cabinet “significantly undermined its own rule of law agenda”. You say that. But especially to the trias politica itself, I think. The Schoof government adopted a fighting stance towards other constitutional players, with whom it was expected to maintain balance and communicate with restraint. That so-called ‘constitutional civility’ was lacking.
A lesson from governing with the radical right is that the rule of law will be damaged in any case. The far right has no knowledge, no interest and no feeling for it. Despite all the incantatory, pre-drafted ‘rule of law statements’. The ambitions to strengthen the rule of law turned out to be NSC confetti.
The Jetten cabinet must be aware of constitutional etiquette
Professor Kutsal Yesilkagit is at least as sharp in his analysis of the relationship between Schoof and the top officials. There too, a unique gap opened up between a traditionally loyal civil service and a cabinet that pushed aside expertise, circumvented procedures and occasionally deliberately sought the ‘rule of law lower limit’. In a number of departments this led to confrontations about loyalty and neutrality versus the rule of law.
According to Yesilkagit, training turned out to be a “structural administrative practice” in departments in which ministers presented “blocking unwelcome policies as a result.” This happened by not signing documents, by rewriting them, or by ignoring or marginalizing advice. It led to fire letters, leaks to the press, the departure of at least one top official and even official demonstrations on the departmental sidewalk. Yesilkagit summarizes it as an “erosion of social security and erosion of official craftsmanship.” He calls the Schoof episode a “stress test”, in which the traditional view of official neutrality has shifted.
The culture of contradiction in the rule of law turned out to be vulnerable, because the “rule of law leadership at the political top” was weak. The correction had to come from the civil servants themselves again and again. While safeguarding the institutional boundaries of the rule of law should be automatic for ministers. Official advice thrives in a culture of contradiction – populist ministers or those with limited experience in particular appeared to be averse to this. The damage to administrative relations is therefore real. “Make sure that ministers respect the institutional boundaries of the rule of law,” Yesilgakit advises, among other things. That, if I may say so, is easier said than done. Because who can stop them?
In the longer term, there could be more than just damage to the exterior. Also because it fits in with the coarsening of the public and political debate. The threshold for subsequent cabinets to make rude statements against judges and to let the Council of State suffocate has become permanently lower. This can have a chilling effect. Advisors and judges sense that they will be exposed politically and may calculate this in advance. Would you rather not give a penalty or an overly clear court order?
Who protects a climate under the rule of law in which contradiction should thrive, even if ‘constitutional civility’ can no longer be counted on? The Jetten cabinet has something to fix here. By being aware of constitutional etiquette. By never allowing oneself to be tempted to measure judicial opinions, advice from the Council of State and one’s own top officials against one’s own political yardstick.
