Interview Alex Brenninkmeijer

Former Ombudsman Alex Brenninkmeijer sees the benefits affair not an industrial accident but a failed system.

The benefits affair has nothing to do with an accident, says professor of constitutional law and former ombudsman Alex Brenninkmeijer. “The system is failing and that affects our democratic rule of law.”

Esther Lammers December 31, 2020, 12:09 PM

Since leaving as ombudsman in 2014, Alex Brenninkmeijer has been a member of the European Court of Auditors in Luxembourg and a professor in Utrecht. He followed the parliamentary hearings about the childcare allowance with great interest, and was surprised how some administrators expressed themselves there. “Like they heard about the problems for the first time. They just knew”.

At the time, as an ombudsman, he personally warned about the harsh fraud policy that was used in social security, and the disproportionate fines that citizens could receive as a result.

He also did that during the introductory meeting in 2013 with the then newly appointed PvdA minister Lodewijk Asscher and Secretary of State Jetta Klijnsma. “There was a very strong political emphasis on combating fraud, long before the Bulgarian fraud (where Bulgarians in the Netherlands applied for health and housing benefits on a large scale via fake addresses around 2010, ed.). There was the idea that fraud undermines social security and should be tackled harshly. When in reality, only a few percent of all people commit fraud and most people are good. At that time, we already noticed how problematic the fraud policy was, for example with the WW. But the administrators did not budge. My comments were accepted for notice only. Also in the House of Representatives, by the way. Let him talk, they thought.”

What does that attitude come from?

“The political culture in The Hague is very closed and has an attitude of: we know better. And this populist, strict approach was also good in society and the media at the time. The whole idea that this legislation might have been unreal, not a reasonable approach to the problem, just went out of the picture. Everything turned around law and order.”

Brenninkmeijer has been fighting all his professional life against what he calls the erosion of the rule of law in the Netherlands. He was even promoted to it. According to the professor of constitutional law, we now live in a country where the legislator, the executor and the case law have structurally forgotten that the starting point of government action should be that citizens are treated properly.

“You can still cut so much, you can find it politically expedient to make strict law and order legislation. But whatever you do as a government, you should not violate citizens' fundamental rights and you should treat them properly.”

And that's what happened here?

“Yes, and that's where we're unique in Europe. Our laws are not even subject to the Constitution. Even in a country like Poland, they don't understand that; that's where the constitutional review of laws lies in the system. In the Netherlands, we have a regentesque approach to public administration. The cabinet and parliament can make laws without caring about anything.”

Brenninkmeijer has written an article for the Nederlands Juristenblad with advice for a new cabinet. In 2017, professional lawyer Sandra Palmen wrote in an internal note for the tax authorities, saying that the implementation of surcharges was legally inadequate. This explosive memo disappeared for a number of years, and recently surfaced after Parliamentary questions from CDA member Pieter Omtzigt. Palmen was then heard publicly by the Childcare Allowance Committee.

In its final report, the committee concluded the same as Palmen already did in 2017; the surcharges violated the fundamental principles of the rule of law.

“The committee has still formulated the basic principles fairly broadly,” says Brenninkmeijer. “The conclusion must have been a political compromise. The committee also suddenly calls combating fraud a fundamental principle. That is nonsense, because fundamental principles are only about citizens' rights. The affair shows that our democratic rule of law simply does not work. We have a legislator who does not comply with the rule of law, an executor who follows the law indiscriminately, without complaining about fundamental rights and fairness, and a judge who is governmental and only confirms policy. All power is clumped together in the Netherlands. Our judges structurally give citizens minimal chances of winning a case. Judges mainly focus on the governorate. That attitude is very deep in the national culture of our judicial system, and has proven to be very persistent.”

How do we get the rule of law back into balance?

“The trias politician is not coming back. We have become too monistic for that. But we can provide more counterforce. From now on, ensure that all laws are tested against the principles of good administration. Finally, reform the administrative jurisdiction in the Netherlands. It should be much less fragmented and organized in such a way that there can be truly independent justice.

“In turn, parliament should review laws more critically and listen to advisory bodies. Performers can also play a much more personal role. I am convinced that if the tax authorities and the Ministry of Social Affairs had come up with a solution that would be less harsh on citizens, judges would also have followed that line.”

Allowances deliberately kept things away from court

The Donner Advisory Committee, which advised the Ministry of Finance last year which parents should be compensated in the benefits affair, has received information showing that Allowances deliberately withheld documents from court. However, the Donner committee does not mention anything about this in its report.

SP MP Renske Leijten wants Secretary of State Alexandra van Huffelen (surcharges) to confirm that the Childcare Allowance Advisory Committee had the so-called official “training plan, inventory, professional file”. The documents of this committee have recently been made public. The induction plan contains instructions about which documents may and may not be included in court files. For example, it could not be mentioned that parents' allowance had stopped because they were part of a fraud investigation (the CAF case, ed.). As a result, the parents did not know for years why they no longer received an allowance. The legal file was also not allowed to mention how many times the parents had called and written to obtain clarification about the termination.

Leijten wants to know why the advisory committee led by former CDA minister Piet Hein Donner talks about “possible mistakes”, while noting that there were conscious policies. The SP MP calls this “highly remarkable” and also wants to know from the Secretary of State whether she also calls deliberately withholding information from court “abuse of power or unlawful action”.

Also read:

New Parliamentary Questions Embarrass Secretary Van Huffelen

How the memo from professional lawyer Palmen at the Tax authorities always disappeared and parents now 30,000 euro compensation get.

After the benefits affair, it is time for a new tax system, these are the three scenarios

The entire tax and allowance system should be overhauled after the elections, says Secretary of State Van Huffelen. Everything is negotiable.