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Conventions: the oil in the engine of the state system

The rise of populist parties, the expansion of the role of the state and now the fragmentation of the Senate and the House of Representatives: Dutch political reality has changed rapidly over recent decades. These developments are in stark contrast to Dutch constitutional law that has remained almost unchanged since the Constitutional Reform of 1848. PhD candidate Gert Jan Geertjes researched this imbalance and the need for unwritten political rules. PhD defence 2 September.

‘All these actual changes in society have resulted in only very limited changes to state law. That often makes it difficult to find rules that reflect the current political reality.’ As an example, there is nothing in the Constitution about how the process of forming a new government should proceed. In addition, the Netherlands doesn’t have a system of constitutional courts. This means that disputes between government and parliament have to be settled by these bodies themselves. ‘They can’t take a dispute to a court,’ Geertjes says.   

Unwritten rules

‘For many situations, there simply is no one-size-fits-all rule. That gap in the Dutch constitution is filled by a lot of unwritten rules: conventions. In my dissertation I analysed these types of rules in the Netherlands and the UK.’ Geertjes refers to these conventions as a kind of oil in the engine of the state system, because they keep the system running without necessitating any major legal or constitutional changes. Every MP has the opportunity to submit a motion and every political party in the House of Representatives is consulted in the initial exploratory stage of forming the Cabinet. Everyone involved in the political arena accepts this because these unwritten rules can work in their favour at some point in time. 

'Many important decisions have already been taken informally by the coalition parties before the official debate takes place in the House of Representatives’  - Gert Jan Geertjes

‘Behind these conventions there are particular generally held values, such as the principle of  proportionality. This principle dates from 1917, when the electoral system of proportional representation was introduced, and it means that each political group should be able to express its views in the House of Representatives in proportion to the number of its seats. The problem is that conventions by no means offer a solution for every situation. In fact, they can only exist if they are neutral in character and give all politicians an equal opportunity to do their work.’

Relationship between Cabinet and House of Representatives

This is also apparent from the way the Cabinet is currently formed. Since 1963, formation has almost always resulted in a coalition agreement, in which all the parties involved set out the most important agreements made by the coalition. This has important consequences for the relationship between the Cabinet and the House of Representatives. Many important decisions have already been taken informally by the coalition parties before the official debate takes place in the House of Representatives.’ As an example, Dutch soldiers boarded the plane to Afghanistan at the end of April 2021 even before the debate about their deployment had taken place in the House of Representatives. The opposition parties were outraged by this.

The scope for the coalition MPs to carry out their duty of scrutiny is now relatively limited. ‘You can see that with the recent case of an MP who had to be “sensitized”.’  Geertjes is referring here to the political debacle surrounding former CDA MP Pieter Omtzigt. Even though Dutch constitutional law has hardly seen any changes for 150 years, Geertjes does not believe that setting new rules is the answer.  

Pieter Omtzigt and profile during a meeting
Former MP for the CDA Pieter Omtzigt

Minority Cabinet

‘Constitutional law and conventions are based on a clear division of roles between government and parliament, while in current political practice these roles are becoming blurred. Where the Constitution is still based on the contrast between government and parliament, the real political struggle is now being played out between the coalition in government and parliament on the one hand, and the opposition in parliament on the other. These days there are barely any political contrasts to be seen within the coalition. There are other possibilities, but they would need a change in the mentality of politicians.  Ultimately, it could even be the impetus for forming a minority Cabinet where the House of Representatives has more opportunity to exercise its original task of scrutinizing what goes on.’  

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