How the cabinet violates the law of the House



The minutes of the cabinet meeting show how the cabinet is changing the right to information of the House of Representatives. ‘This is a violation of the Constitution,’ says Professor Voermans.

Among the many lamentations about MPs criticizing the cabinet, the key phrase does not immediately catch the eye. It is State Secretary Menno Snel (D66) who pronounces it during the Council of Ministers of 18 October 2019. “It is recommended that the council jointly determine how far the obligation to provide information to the House of Representatives extends.”

The State Secretary for Tax Affairs is at his wits end at that moment. For more than six months, Snel has received an endless series of parliamentary questions about the allowance scandal. Every answer he gives raises new questions, every document he provides leads to new controversy in the media and parliament. Not only opposition members such as Renske Leijten (SP) and Farid Azarkan (Denk) are firmly committed to the issue, coalition colleagues Pieter Omtzigt (CDA) and Helma Lodders (VVD) are also not aware of stopping. Snel feels that he has lost control of the file. The flow of information requests from the House must stop. That is why he asks his colleagues – indirectly – to put a stop to the constitutional right of information of the House of Representatives.

A few weeks later, Snel clarifies what he is after: he wants the back of his fellow ministers to withhold information from the House of Representatives, including documents that MPs explicitly ask for. The speaker wants to maintain the line that when providing information, documents (to the House – ed.) should be handed over. ‘

No problem

None of those present objects. On the contrary. Please note that the Minister of Justice, guardian of the Constitution, is very willing to help Mr Snel out of the fire. In the Council of Ministers of 29 November, Ferd Grapperhaus offered to ‘help think’ about the way in which Snel will ‘present’ his story about the incomplete information provision in the House of Representatives. “It must be prevented that published documents are always used against State Secretary Snel,” says Grapperhaus, according to the minutes revealed on Tuesday evening. Minister Schouten (Christian Union) and Prime Minister Rutte (VVD) agree that it is really going too far to hand over certain official documents to the House. According to Schouten, making such documents public is ‘not the usual (cabinet) line’ and the House should be made aware of this.

No sooner said than done. Acting Minister of the Interior Raymond Knops (CDA) sends an explanation letter to the Lower House. In it he refers to Article 68 of the Constitution, which lays down the right to information of the House of Representatives. Knops writes: ‘It is standing cabinet policy that documents that (relate to, ed.) will not become part of the debate with the House through internal deliberation. The documents are either rejected in their entirety or the personal policy views are masked in the documents. Only by protecting the confidentiality of internal deliberation can it be ensured that optimal decision-making can take place. It is then up to the Minister to be accountable to the House for the position or decision taken or taken, the arguments on which it is based and other relevant information. ‘

Constitution

But this is not a standing policy at all, respond the professors of constitutional law Wim Voermans and Paul Bovend’Eert. On the contrary, says Voermans. “This is a violation of the Constitution.” The right to information of the House, and thus the government’s obligation to provide information, is formulated very broadly in the Constitution. Bovend’Eert: ‘In 2002, Knops’ predecessor Klaas de Vries explained to the House of Representatives the correct interpretation of that article of the constitution. The Constitution only provides one ground for refusal when providing information to the House of Representatives. That is when disclosure “is contrary to the interest of the state.” The protection of individual civil servants is clearly not covered by this. Moreover, a minister can simply brush off the names of civil servants. ‘

Minister De Vries also explained in 2002 that the exemption provision in the Constitution is intended for matters such as military secrets or price-sensitive information, such as the negotiations on state aid to Air France-KLM. But even in those cases, the House of Representatives does not have to accept the cabinet’s refusal. The House can then still demand to be allowed to inspect the documents confidentially.

At the end of 2019, Knops will try to impose a completely new, restrictive interpretation of the Constitution on the House of Representatives – on behalf of the entire cabinet. With one stroke of the pen, the minister restricts Parliament’s right to information – and thus also the parliament’s countervailing power. Because if MPs no longer have access to documents that form the basis of cabinet decisions, how can they check whether ministers are telling the truth? And whether their decisions are properly substantiated? ” Internal deliberation ‘is such a broad and flexible concept that it covers almost all official documents,’ comments Wim Voermans.

Trend

Both professors see the trend that the cabinet has been trying to ‘tighten’ the power of the House of Representatives for years, as Voermans puts it. ‘That already started under Prime Ministers Kok and Balkenende, but the number of incidents in which the cabinet does not fully or incorrectly inform the House has increased by no less than 65 percent under Prime Minister Rutte. That is no coincidence. That is the Rutte doctrine: keep it secret as much as possible. In the past, misinforming the House was a political mortal sin for which ministers had to resign. Under Rutte, only 10 percent of information incidents lead to the resignation of a minister or state secretary. From the start, the Rutte cabinets have cut back on their duty to provide information to the House. ‘

An example from the benefits affair illustrates how the Rutte doctrine hinders the House of Representatives in carrying out its supervisory task. At one point, MPs Leijten and Omtzigt asked the cabinet for an official memo from 2017. In it, a lawyer from the Tax Authorities advised her superiors on how to deal with a judgment of the Council of State in a lawsuit between the service and a victimized parent. . Initially, the State Secretary sent an almost completely black-lacquered version of the document to the House, arguing that the ‘personal policy view’ of this lawyer should remain confidential. Only after the lawyer read the memo, word for word, during her public interrogation by the parliamentary committee of inquiry, did it become apparent how explosive the blotted text was. She had already pointed out to the top of the Benefits department at the beginning of 2017 that the Tax and Customs Administration was wrong and that the duped parents deserved compensation. That was more than two years before the cabinet openly admitted this. The example shows that under the cover of ‘personal policy views’, the cabinet can hide crucial information from Parliament.

‘These minutes put us face to face with the facts,’ observes Paul Bovend’Eert. ‘They show that the cabinet can no longer deal with opposition from the House. It is very noticeable that a coalition MP such as Pieter Omtzigt occupies an independent position. While it should be normal for MPs, including those from the coalition, to follow the cabinet critically. Omtzigt and Leijten did not act critically to act critically, but because they saw that it was getting completely out of hand with that supplement policy. If the Council of Ministers then sulk about MPs who are not in line, the cabinet is more concerned with maintaining the coalition than solving the benefits problem. ‘

Culture change

Both constitutional law scholars hope that the allowance scandal and the commotion surrounding the photographed memorandum (‘Pieter Omtzigt, position elsewhere’) will trigger a cultural change. In response to the final report of the parliamentary committee of inquiry into childcare allowance, which heralded the fall of the cabinet, the cabinet has made ‘a 180 degree turn’, says Bovend’Eert. Rutte’s outgoing government team has distanced itself from Raymond Knops’ letter to Parliament. From now on, personal policy views will be shared with Parliament, the cabinet promised at the end of December.

Nevertheless, the House will have to enforce this administrative culture change itself, Voermans warns. ‘Information is the oxygen of the Chamber. No countervailing power without information. But what do we see happening again? The cabinet says: ‘We are in a crisis, so we need to be formed quickly. In view of the national interest, the House now has to give up. ‘