In 2021 the third Rutte Cabinet came to a fall due to the childcare-benefit crisis plaguing The Netherlands. In this affair the tax authorities wrongly labeled thousands of parents receiving childcare benefits as fraudsters and reclaimed large sums of money from them, plunging many into deep financial and personal problems. How is it possible that the administrative judiciary did not interfere and ruled these withdrawal decisions disproportionate and unlawful? In the words of a Parliamentary research committee: ‘The administrative judiciary has neglected its important function of legal protection of individual citizens. The committee is particularly affected by the disregarding of general principles of good governance, which should serve as a cushion and protective blanket for those in need’. For a country that has supposedly the most comprehensive codification of general administrative law worldwide (over 500 provisions in the General Administrative Law Act (GALA)), this is a soul-searching reproach.
This soul-searching has been deepened by the research project on the Codification of administrative law, led by prof. dr. Felix Uhlmann (Universität Zürich), that challenged scholars to take an outsider perspective on their internal legal system. Some questions raised in the outline of the project turned out to be hardly unanswerable, at least not with reference to current Dutch scholarly work, thus showing gaps in national administrative law scholarship (How does your constitution function as a source of administrative law?; What is the role of doctrine?; What sources do administrative lawyers rely on if the GALA or the specific legislation does not provide an answer?). These are precisely the kind of issues that turned out to be key in the aftermath of the childcare-benefit crisis. Especially the following question was spot on: do judges rely on dogmatics, the constitution, private law or legal principles if a statute is ambiguous and needs interpretation? Well… as Dutch administrative law scholars we had to admit that these issues were not that prominently recognized in scholarship. Whenever a statute leaves room for discussion we seem to frame that as a discretionary element that the administration may fill in with policy arguments. Compared to other legal systems, we quite easily grant discretionary powers to the administrative authority and the judiciary defers to the administration’s statutory interpretation. In the childcare-benefit crisis there has been a lively debate under academics whether the specific tax law dictated the draconian recovery decisions or whether the statute left room for a proportionality test. The tax administration advocated hard and vast rules, that led to a so-called ‘all or nothing’-approach. Whenever a part of the right to a childcare benefit could not be proven (e.g. of a benefit of €25,000,- the payment of €3,000,- could not be proven, then the parents had to pay back the total amount of €25,000,-). The Judiciary branch of the Council of State initially upheld that statutory interpretation, although neither the wordings within the statute nor the parliamentary papers were that particularly clear. If legal principles or constitutional norms had been well accepted as sources of administrative law influencing statutory interpretation, it is questionable whether the judiciary would have come to the same conclusion.
This comparative volume on the codification of administrative law forms a unique source that not only unravels the variations in codification, but also helps capture the legal culture that is behind that codification. In our contribution we argue that the GALA has improved the clarity and accessibility of administrative law, as the act brought more uniformity and standardization. Administrative law as a discipline has benefitted greatly from the vast codification, as the process fueled debates in parliament, within the administration and within academia, all sharing the same vocabulary to express (sometimes competing) visions om how the system should work. Even so, this extensive codification also has its drawbacks. The GALA tends to be a system on its own with its focus on systematization; it makes administrative law a rather inward orientated system. The Act is of quite a practical, detailed and procedural nature. There are multiple rules on modes of communication, hearings, fact-finding possibilities and publication duties, to name but a few. Such detailed rules may overshadow the general principles and public law values behind these detailed provisions. That observation is exemplary for Dutch legal culture, that shies away from grand constitutional theory. As said, the GALA is a practical, technical and procedural Act. Themes that might be part of an administrative law codification in other systems, are in the Netherlands considered to be of a constitutional nature and are left out of the codification, such as the right to access governmental information or to participate in rulemaking. The GALA is not seen as concrete constitutional law, but rather as an instrument with which the government can steer the relation between the administration and its citizens. In a way, it serves as a policy instrument.
There have been various moments that the government used the GALA to push policy developments. For instance, during the financial crises that started in 2007/2008, the government wished to accelerate the realization of major infrastructural projects to stimulate the economy. It had the impression that the GALA contained too many burdensome administrative procedural rules that caused delays in large building projects. In order to reduce these burdens, it experimented with variations from the GALA, which became eventually permanent. Also in the aftermath of the childcare benefit crisis, the legislator turned to the GALA as a tool to strengthen citizens’ trust in government and as a solution to various problems that parents came across in appealing their recovery decisions.
In January 2023 the government published a bill to amend certain provisions in the GALA, under the title ‘Act to strengthen the protective function of the GALA’. The bill should incorporate a more realistic perspective on citizens’ capacities to interact with the administration and ask for legal protection and, in general, should make administrative law more responsive. To that end the bill contains provisions on e.g. the right of citizens to correct mistakes, a right to a comprehensible explanation of the decision taken, a stronger right to a hearing when making objections within the administration and a longer period to appeal decisions. In line with solid Dutch tradition topics that touch upon a constitutional dimension have been left out of that bill. For example, there is not a single word on human dignity as the essence of the protection of fundamental rights, nor is the current exclusion of the right to appeal regulation (section 8:3 GALA) questioned. A proposal to broaden a proportionality test when strict statutes are applied, has been so controversial within ministries that that specific proposal has been laid down in a separate attachment to the bill.
Although this latter development has been too recent to be included in our chapter, this topical development is seamlessly in line with our analysis. A comprehensive codification of general administrative law offers all branches of government and academia a vocabulary and logical frame to exchange ideas on how to regulate the relationship between government and citizens. That shared language also makes the GALA function in a dynamic and sometimes even volatile political environment, that makes it sensitive for policy arguments. Moreover, the GALA can also be perceived as a warning against an overly extensive codification, in which all detailed rules obscure the underlying public law values, legal principles and effective legal protection.
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Posted by Ymre Schuurmans (Professor of Constitutional and Administrative Law and Academic Director of the Institute of Public Law, Leiden University)
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