What's going on?
Report on Maatwerk in Administrative Law (Tailored Administrative Law) published
In 2020, together with several colleagues from the Department of Constitutional and Administrative Law in Leiden, I have been working on a research project commissioned by the Dutch Ministry of the Interior (Ministerie van Binnenlandse Zaken en Koninkrijksrelaties) on administrative law and ‘tailored’ decision making. In the Netherlands, there is a clear call for more responsive government. A central element of a more citizen-focused approach is considered to be ‘maatwerk’, ie rule and decision making – by the executive, but also the legislature and courts – that is tailored to individual needs and interests. We have investigated what (legal) obstacles stand in the way of a maatwerk-approach and which solutions can be considered in order to improve the role and potential of maatwerk.
On 15 January 2021, our report was published presented to the Dutch House of Representatives (Tweede Kamer). Just like our intermediate report taking stock of the relevant obstacles, the final report can be downloaded for free (in Dutch).
In the report, we argue for a more principle-based executive practice, in which requirements of proportionality and motivation, as well as procedural safeguards play a central role. Individual circumstances may require a deviation from general rules (laws) and policies, and it is key to identify by means of appropriate procedures when this is the case. Maatwerk is in line with what fundamental rights require, namely that government acts and omissions that touch upon fundamental individual interests are proportional in the light thereof. At the same time, we also warn for the downsides of a maatwerk-approach. Legal certainty and equal treatment might be at risk when individual, tailored decisions become the rule rather than the exception. Also efficiency concerns play a legitimate role – this means that we should not strive for as much maatwerk as possible, but instead need to identify when and where this is really needed. Especially when vulnerable citizens and their fundamental (financial) interests are concerned, a more customized treatment is appropriate.
The report could not have been more timely – it was published the day the Dutch government resigned over the child benefits scandal, where thousands of families where wrongly accused of fraud and had to pay back large sums leading to severe financial and other problems. For years, harsh legal rules were followed without the authorities and courts allowing exceptions in severe circumstances where the proportionality of measures could easily be doubted. In responding to such widespread shortcomings, in the area of child benefits and elsewhere, our report will be able to offer insight and concrete guidance.
Curious about the Dutch debate on responsive government and maatwerk and you do not have access to the Dutch materials on this topic? Feel free to get in touch.
Contribution to special issue on the trias politica and the role of courts
Tapping into the (political) discussion on the apparently increasing and potentially too large role of courts, a special issue of the Dutch law journal Ars Aequi was published on The judge in the trias politica (De rechter in de trias politica, 69 Ars Aequi, October 2020). I was asked to write an article on the role of human rights in relation to the trias and the role of courts. Other contributions discuss, eg, the political question doctrine, the trias in a multilevel EU context, and digitalization and the balance of powers.
The (translated) summary of my contribution is as follows:
‘Human rights are everywhere. This sometimes leads to unease with regard to the of courts in combination with the central role of the European Convention on Human Rights. [Since the Dutch Constitution prohibits judicial review of legislative acts on the basis of the constitution, the ECHR and the case law of the ECtHR form the baseline of our fundamental rights protection.] This contribution provides a better understanding of the development of human rights in light of the increased tasks of the State. In order to play a bigger part in this development, both courts as well as the legislator and the executive should actively engage with fundamental rights protection.’
In short, I argue that the omnipresence of human rights (adjudication) can be explained by their evolutive and positive interpretation as well as the increasing role of the State. The Dutch dependence on the ECHR system should not lead to ‘outsourcing’ human rights protection. Instead, Dutch courts should take a more active stance in interpreting fundamental rights. Rather than ignoring or questioning the role of these rights, in order to have a say in their further development, the legislature and executive need not shy away from this task either.
Workshop and podcast on 'Human Rights Overreach'
During a conference in Nuremberg last year, Professor Anuscheh Farahat and I came up with the idea of doing something on the ‘hot topic’ of ‘Human Rights Overreach’ together. Human rights are everywhere, but can there also be too many human rights? Can there be an ‘inflation’ of this concept hampering human rights’ effectiveness? How does this issue tie in with the current backlash against human rights?
To incentivize a broader academic discussion on this topic, we decided to organize an international workshop for which we issued a call for papers at the end of last year. We received broad response from scholars all over the world and came up with a programme including topics such as climate protection, the concept of vulnerability, social rights for migrants and armed conflicts, all to be discussed from the perspective of the use and effectiveness of human rights.
The workshop eventually took place – online – on 1 and 2 July. Thanks to our presenters, engaged listeners and ‘special guest’ Professor John Tasioulas, we had two days full of interesting perspectives and insightful discussions, that will hopefully form the start of a more thorough examination of the topic of potential overreach, with the aim of effectuating human rights to the greatest extent possible. We learned that overreach cannot be determined for human rights in general, but must be discussed in relation to specific issues. Broad prima facie protection, moreover, may overshadow a lack of eventual protection in concrete circumstances. Also, the omnipresence of fundamental rights cannot be viewed separately from the increased role of the (administrative) state.
Are the presentations and discussions available online? They are not, but, meanwhile we have taken the first steps towards publishing a special issue with an international journal including the contributions to our workshop. More news will hopefully follow soon.
And: we discussed the workshop and its main findings with Professor Markus Krajewski in the Human Rights Podcast of the Friedrich Alexander University Erlangen-Nuremberg. The episode (in German) can be found here.
Opinion article in Nederlands Dagblad on constitutional rights protection and the Corona crisis
Together with Manon Julicher, assistant professor of constitutional law at Utrecht University, I wrote an opinion article on the protection of fundamental rights in Netherlands in times of the Corona crisis. The piece, ‘Onze grondrechten gaan te gemakkelijk opzij in crisistijd. De Grondwet moet een anker bieden’ (‘In times of crisis, our fundamental rights step aside too easily. The Constitution should provide an anchor’), was published in the Nederlands Dagblad on 9 June.
In the article, we argue that the current crisis makes painfully clear how little relevant the fundamental rights enshrined in the Dutch Constitution are. Currently, a formal law (made by the government together with parliament) is in the making that is supposed to ensure the democratic legitimacy of the measures taken. However, this is pretty much all our Constitution requires: that limitations of fundamental rights are laid down or made possible in a formal law. It does not include material requirements such as subsidiarity or proportionality of the measures taken. This means the formal legislator pretty much gets a blank slate.
It is true that whereas courts are not allowed to review formal laws against the Dutch Constitution (art. 120), they can review these laws on the basis of treaty norms that are directly applicable, such as those enshrined in the European Convention on Human Rights (ECHR). There, the proportionality test is a prominent part of reviewing whether a limitation of a right is justified. However, this does not make up for the lack of standards offered by the Dutch Constitution. The ECHR ensures minimum protection and especially in times of crisis, the Constitution should provide an effective safety net.
We plea for reinvigorating the debate about the role of and standards set by our Constitution, in order to ensure that during a next crisis, it will provide not only a symbolic but also a relevant frame of reference.
Presentation at webinar on the present and future of social rights protection in Europe.
6 May 2020
In Janaury of this year, I was invited by my dear colleague Antoina Barragia, assistant professor at the University of Milan, to come to Milan in May to speak at the kick off conference of her Jean Monnet Module: Law and Policies for Social Rights Protection in Europe (Polaris). I had been to Milan before, to participate in the first constitutional law ‘Schmooze’ in 2018, and was greatly looking forward to returning there this year.
It became clear not much later that the conference would not take place as planned. Given the pandemic and the lock down that puts many of us in difficult situations, I was very happy that Antonia nevertheless decided to move the conference online, and open it up to all interested. Even though we scholars greatly miss live interactions during and around events like this, we also realize that online activities allow us to broaden our audiences and include those who would otherwise not be able to come due to time or other constraints.
This past Monday, in the great company of Professor Giuseppe Palsimano from the University of Roma Tre, who is the President of the European Committee of Social Rights (ECSR), and Associate Professor Francesco Costamagna from the University of Turin, I gave my talk on ‘Indivisible Interferences and the (In)visibility of Economic and Social Rights in the Case Law of the ECtHR’. A mouth full, but in short, I discussed the role of the European Court of Human Rigths (ECtHR) in protecting social rights. Social rights protection under the European Convention on Human Rights (ECHR) is possible through a broad interpretation of its rights, while at the same time this may lead to overshadowing social rights when civil and social rights are interfered with simultaneously. One example I used to clarify this was the Dutch SyRI-case, in which the court found a violation of Article 8 ECHR, without however paying much attention to the discrimination and social security rights aspects of the case.
Hence, we really need social rights treaties and treaty bodies such as the ESCR in order to ensure the visibility of social rights. At the same time, review by the ECtHR – leading to binding judgments – does have added value when it comes to social rights protection. Of course, our discussion also touched upon issues related to Covid-19 and the effects on social rights. These will last for – or even only become apparent in – the years to come. The previous economic and financial crisis has shown that the ECtHR can be reluctant in providing social protection, especially when austerity results from measures demanded at European level in exchange for monetary aid. On the basis of this experience, it is hoped that, through efforts of States, the EU, the ECSR and the ECtHR, in the aftermath of the pandemic social rights will not be merely compensated but actually protected. Many thanks to Antonia for organizing this inspiring – and very smooth – online event.
Forthcoming article ‘Facing financialization in the housing sector: A human right to adequate housing for all’
29 April 2020
Today, I corrected the proofs of an article I wrote together with Kaisa de Bel, and that will be published open access (soon) in the Netherlands Quarterly of Human Rights. Not only does this article discuss an important topic - the financialization or commodification of housing and what this means from a human rights perspective - it was also a pleasure to work together with Kaisa. Last year, she was a student of Leiden University’s Honours College Law. One of this programme’s courses requires that students assist a faculty member with a research project. I was happy that Kaisa joined my project, which resulted in this co-authored article! This is the abstract:
Housing is increasingly seen as a vehicle for wealth accumulation rather than a social good. ‘Financialization’ of housing refers to the expanding and dominant role of financial markets and corporations in the field of housing, leading to unaffordable and insufficient housing and discrimination. Although clearly linked to the right to adequate housing, financialization and its effects are not often viewed from a human rights perspective. This article fleshes out this important link by illuminating the standards set in relation to the right to adequate housing enshrined in Article 11(1) ICESCR. It is shown that recently, human rights bodies have confronted the issue of financialization more directly, translating general requirements to this particular issue. Moreover, efforts at UN level are mirrored in initiatives at the local level, signalling the beginning of a shift towards a paradigm that complies with human rights. The financialization of housing and the response of human rights also allow for addressing a more general issue, namely the potential of majority protection in times of human rights backlash. In this regard, it is worth emphasising that human rights such as the right to adequate housing protect not only the extreme poor. In the context of financialization, this may contribute to better housing conditions as well as reconnect people to their human rights.
*Update 15 June 2020* The article is now available (OA).