Leiden Law Blog

Dutch Legislature: On a Crusade for Security or a Populist Collision Course?

Dutch Legislature: On a Crusade for Security or a Populist Collision Course?

Over the course of years the Netherlands seems to have transformed into a fully fledged crime-obsessed culture of control with matching criminal legislation. The transformation is accompanied by a harsher and less nuanced political discourse with regard to crime and safety. Through punitive symbolism and by conveniently using the media, alleged political and public concerns regarding crime and safety are expressed and translated into incident-driven and populist criminal legislation. Whereas legislation should always be the best response to a specific problem, the result of a careful process during which all values and interests at stake are taken into consideration by the legislature, the current political discourse seems to propagate the all exceeding importance of collective safety as a matter of course. Although key players within the Dutch legislative procedure, including the authoritative Council of State, have repeatedly been highly critical towards various crime bills, the current minority government continues to ignore these often fundamental criticisms and seems to be on a collision course in favour of (a false sense of) public safety – or should we say in favour of electoral compassion?

The beacon of enlightenment dimmed

The Netherlands has long been a symbol of tolerance and a country in which criminal justice policy could be characterized by a great deal of leniency and stability. Prior to 1985 crime and deviance were hardly considered social problems at all, but around the mid-eighties a shift occurred in which crime was placed within a law and order discourse. By playing into and even intentionally feeding subjective fears amongst the public, in such a law and order discourse, the actual development of the crime rates – which in the Netherlands have actually been dropping since the late nineties - is eventually no longer relevant. The coalition agreement of the current minority government, supported by Geert Wilders’ Party for Freedom (PVV) fits perfectly within this development of a security-obsessed nation. The fact that maintaining collective safety is an important core task of the government is used as an argument to emphasize the necessity to invest in a diverse range of punitive and preventive measures in order to be able to properly fulfill this core task. Speaking in terms of ‘street terror’ and ‘criminal service’ the agreement oozes an atmosphere of irreconcilability and ‘no-nonsense’ with regard to law and safety enforcement

Ignoring  the country’s highest advisory body

The Dutch legislative procedure is designed in such a way that during various stages of the process of drafting, different bodies are enabled to review the legislative proposal against the background of legitimacy, accountability, practicability, as well as its perceived effectiveness and overall desirability. One of the highest advisory  bodies is the Council of State. The Council of State chiefly pays attention to the legal quality of the bill and does not concern itself with its political merit. Its report is sent directly to the responsible Ministers, who, in turn, should respond to the Council’s advice.  Yet, the Minister has the authority to disregard  the Council’s advice, since it is not binding. Whereas it is therefore not uncommon that the Council’s advisory reports are ignored, under the current government lead by Prime Minister Rutte it seems to be the rule rather than exception. This is both interesting and worrying since recent research by a Dutch news channel has shown that the Council has been far more negative on the legislative proposals of the Rutte-Cabinet compared to previous cabinets.

Populist rhetoric and ditto legislation 

Especially the bills resulting from the aforementioned coalition agreement encounter much resistance from within the Council. For example, on the implementation of minimum sentencing, the Council says that the government is displacing judiciary discretion. The Council considers the burka ban to be a far too serious measure and contrary to the freedom of religion. The proposal to raise court fees puts up a threshold that is too high for people who seek justice in the courts. Besides  the grave concerns with regard to their quality  and legitimacy as expressed by the Council, the  various proposals share another important common denominator: they seem to be based purely on ill-founded perceptions with regard to safety and efficiency and are characterized by a populist rhetoric. 

A disrespecting government

It is clear that the current state of affairs with regard to criminal legislation has to come to an end. With several poorly drafted populist criminal bills challenging both the Dutch Rule of Law and constitutional rights waiting to be debated in the Senate, several Senators and former members of the Council have publicly expressed their concerns. By systematically neglecting the advice of the Council and by continuously producing new legislative proposals that tie in with popular sentiments and subjective perceptions, the actions of the current government not only demonstrate a populist bravura and great disrespect towards the country’s highest advisory body, in a way, it is also a token of disrespect towards the Dutch citizens. Instead of investing time and resources into qualitative well-wrought legislation that can actually bring about changes while respecting the Rule of Law, Dutch tax money is being spent on enforcing symbolic legislation and maintaining a false sense of security. 

4 Comments

Dutch Law Student
Posted on May 26, 2012 at 16:42 by Dutch Law Student

This is definitely an article based on very leftist, I almost want to say naive and soft, ideology. I am glad that the government and society in general doesn’t take this view seriously and into account for it will give terrorists a larger playground and ultimately put society into grave danger. Thank you very much.

Maartje van der Woude
Posted on April 17, 2012 at 19:59 by Maartje van der Woude

Thank you both for commenting on the blog. Since it is obviously difficult to give a nuanced perspective on a complicated matter in 500 words, I am glad to clarify some aspects of our opinion in this comment.
Populism is difficult to define and there is no all-encompassing definition. So it is important to establish the meaning of populism within the context of my own research. A definition of populism is the development of a political discourse that ties in closely with the sentiments and concerns of the general mass, not only in terms of the topics that are dominating the discourse but also by framing sometimes difficult discussions in rather straight-forward terms and one-liners that supposedly best express ‘the voice of the people’. In itself, I feel that a populist political discourse is not a bad development per se: we do live – luckily (!!) – in a democracy, so the voice of ‘the people’ matters a lot. What does worry me, and the outcomes of the RTL-news research do match the results of my dissertation research and our current research into the drafting of new criminal legislation.

Populism does become a concern when it seems to ‘out voice’ the other part of the democracy that the Netherlands is: a democratic constitutional state. This means that the values and instruments of the democracy should always be combined with the values and instruments of the law, binding the government to the law as well.  In other words, whereas it is important and necessary for politicians to listen to and act upon the general concerns and fears, it is equally important that while acting upon these concerns and fears by means of new legislation (e.g. criminalizing certain behavior, creating new police powers etc.) the government assures that these new measures are indeed the best solution for these concerns and fears by thoroughly thinking through their potential effectiveness, their legitimacy and their necessity.

We are of the opinion that under the current Rutte-cabinet, but also under previous cabinets, some of the Criminal Bills seem to be largely driven by general sentiments of uneasiness and concern and not by the values of the (criminal or human rights) law nor by empirical evidence that the proposed measures will – or even can – contribute to a safer society, whereas safety IS often used as an important argument for its necessity.

Law Student
Posted on April 17, 2012 at 18:31 by Law Student

‘This is both interesting and worrying since recent research by a Dutch news channel has shown that the Council has been far more negative on the legislative proposals of the Rutte-Cabinet compared to previous cabinets.’

I do not think this is a resource I can take seriously. An maybe you can tell us why the populism actually is so bad? You say some things that can either be true or untrue, but you never explain why these things are so bad for society.

asdf
Posted on April 16, 2012 at 08:27 by asdf

Define “populist”. What is populism?

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