The Allowances affair has already set new standards in the judiciary. For the first time, a public reflection of the judiciary has appeared on the contents of judgments rendered. Judges in public have always kept their mouths shut about that. After all, a verdict is a fact ‘that you have to deal with’, as the driving judge used to interpret the concept of ‘authority’. The judge never talks outside of his verdict – in that he or she has qualitate qua equal. That will only change if the professional judge says so.
It is unique that an official club of administrative judges is still scissors in their own work. You could call it an environmental reckoning with some irony. Came two weeks ago ‘Finding justice in court’ from. After which the chairman of the Council for the Judiciary called on the administrative judges to be more activist. ‘Get out of the system’, don’t be afraid of ‘contradictory statements’, don’t always think that the government is a reliable party to the process. That too is unique. Never before has the chairman of this governing body given a pep talk about the content of case law. It will have surprised many. Usually judges from the chairman of their own council only accept a new office chair, never substantive advice.
Also read: We lawyers made too little noise
Many of the recommendations that the administrative judges now give themselves point to structural weaknesses that affect the entire judiciary. Only 1 to 2 percent of the benefit cases were published on Rechtspraak.nl – in the violence of the more than a million court cases every year, ‘surcharges’ was the chirping of a cricket. Judges spoke little about it among themselves – not even between courts. The issue was also not picked up by science. And with the exception of the courts of The Hague and Rotterdam, internally unproblematic. According to the report, the administrative judges felt gagged or allowed themselves to be gagged too easily. They were unable to get through to the Council of State on appeal. And then they let it go.
The Administrative Jurisdiction Division of the Council of State will later produce its own report. But for now, especially the isolated position became eerily visible. No citizen will realize it, but the administrative judges of the Council of State make no part of the judiciary. And therefore do not fall under the management of the Council for the Judiciary. That has never really been a burning issue – but that may just change now. In a previous coalition agreement, attempts were made, in vain, to reform the Council of State. It’s been messy for a while now. In 2007, immigration judges already stated that they did not feel heard by the Council of State. That riot was then calmed down with the promise of regular ‘legs-on-the-table’ conversations. To hear ‘what’s going on’, to cultivate understanding, to exchange information. So that the Council of State also learns in time where the citizen gets into trouble, the government is failing, the law is unreasonable.
It now appears that the Court of Rotterdam in 2014 had already informed the Council of State in such an informal conversation about the structurally unjust outcome of many benefits cases. Parents who didn’t cheat at all, but were ruined, sometimes because of a difference of just a few hundred euros. That round of internal whistleblowing had no effect. After 2015, the investigation showed that the administrative judges gave up and conformed. If they haven’t already done so.
This brings the issue of ‘Raad van State’ back on the table, this hybrid High Council of State that combines advice to the legislator with the role of the highest administrative court. In formation time, that too. Internally it is neatly separated, but “it is not good for the image”, noted former president of the Supreme Court Geert Corstens Sunday in Buitenhof up again. A club against which you apparently have to ‘on the barricades’ internally and then get zero on the bill. After this, the higher administrative judges can therefore go through the dust – that should hardly be less critical. Otherwise the old accusation of being rigid and ‘governmental’ will be revived completely. But will things still be okay with the courts?
A version of this article also appeared in NRC Handelsblad of 23 October 2021
A version of this article also appeared in NRC in the morning of October 23, 2021
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