POLITICAL AND CRIMINAL RESPONSIBILITY Roel de lange Introduction Preliminary remarks Chair of Constitutional and Administrative Law, Faculty ofLaw, Erasmus University Rotterdam
POLITICAL AND CRIMINAL RESPONSIBILITY Roel de Lange* IV B 1 * Chair of Constitutional and Administrative Law, Faculty of Law, Erasmus University Rotterdam. Introduction Preliminary remarks
DE LANGE According to the Questionna ire the following relevant questions were to be addressed I. Concepts and definitions I. Constitutional and legal status of Head of State, Head of Govemment and ministers in relation to national and international crim inal law Ill. Responsibility of Head of State, Head of Government and Minister(s) for criminal acts or om issions committed by their subord ina tes, i. e civil servants IV. Distinctions between governmental (official)and personal crim inal responsibility V. The availability of immunity and/or indemnity from criminal prosecution VI. In which courts would crim nal proceedings take place? Scope of this Report This report deals primarily with national constitutional law. Matters of Dutch crim inal law are discussed where appropriate. The im pact of intemational law, although possibly increasing since the Netherlands si igned the treaty in which the Statute of the Intemational Criminal Court is laid down, foms no part of our discussion. 2 Reference to the Intermational Criminal Court is made only in passing. Head of state The Kingdom of the Netherlands is a constitutional monarchy. The King is Head of State Since 1898 the office of King has been held by a woman, after a period (1890-1898)in which the Queen Mother acted as Regent. According to Dutch constitutional law, the question who is Head of State is not a difficult one, a though there is no ex plicit provision in the written Constitution. The Constitution of 1814 spoke of william as Sovereign Prince. According to contem porary practice, the establishment ofan hereditary monarchy in the Netherlands in 1813 implied that the new Sovereign Prince was Head of State. In 1815, following the Vienna Congress, a new state was recognised, comprising the Netherlands and part of what is now Belgium(separated in 1830). In a Proclamation of March 16, 1815, in which unity with Belgium was proclaimed, the Prince referred to himself as King of the Netherlands, and this title was recognised by foreign governments at the Vienna Congress 4 The 1815 Constitution referred to the King. during the Important Revision of the Constitution in 1848, the Govemment explicitly referred to the King as the Head of State This was never contradicted, and has been generally accepted The Questionnaire was designed by prof John Bridge, University of Exeter(U. K) The significance of the Intemational Criminal Court is discussed by Vander Wilt 2000 Struycken 1917, p 31 Memorie van Beantwoording van het Voorlopig Verslag, Handelingen 1848, P. 56
DE LANGE 2 According to the Questionnaire1 , the following relevant questions were to be addressed: I. Concepts and definitions II. Constitutional and legal status of Head of State, Head of Government and Ministers in relation to national and international criminal law III. Responsibility of Head of State, Head of Government and Minister(s) for criminal acts or omissions committed by their subordinates, i.e. civil servants IV. Distinctions between governmental (official) and personal criminal responsibility. V. The availability of immunity and/or indemnity from criminal prosecution. VI. In which courts would criminal proceedings take place? 1 Scope of this Report This report deals primarily with national constitutional law. Matters of Dutch criminal law are discussed where appropriate. The impact of international law, although possibly increasing since the Netherlands signed the treaty in which the Statute of the International Criminal Court is laid down, forms no part of our discussion. 2 Reference to the International Criminal Court is made only in passing. 2 Head of State The Kingdom of the Netherlands is a constitutional monarchy. The King is Head of State. Since 1898 the office of King has been held by a woman, after a period (1890-1898) in which the Queen Mother acted as Regent. According to Dutch constitutional law, the question who is Head of State is not a difficult one, although there is no explicit provision in the written Constitution. The Constitution of 1814 spoke of William as Sovereign Prince. According to contemporary practice, the establishment of an hereditary monarchy in the Netherlands in 1813 implied that the new Sovereign Prince wa s Head of State. In 1815, following the Vienna Congress, a new state was recognised, comprising the Netherlands and part of what is now Belgium (separated in 1830). In a Proclamation of March 16, 1815,3 in which unity with Belgium was proclaimed, the Prince referred to himself as King of the Netherlands, and this title was recognised by foreign governments at the Vienna Congress. 4 The 1815 Constitution referred to the King. During the important Revision of the Constitution in 1848, the Government explicitly referred to the King as the Head of State.5 This was never contradicted, and has been generally accepted 1. The Questionnaire was designed by prof. John Bridge, University of Exeter (U.K.). 2. The significance of the International Criminal Court is discussed by Van der Wilt 2000. 3. Stb. 27. 4. Struycken 1917, p. 315. 5. Memorie van Beantwoording van het Voorlopig Verslag, Handelingen 1848, p. 56
POLITICAL ANDCRIMINAL RESPONSIBILITY in constitutional doctrine ever since 6 The King as Head of State has the power to bind the Kingdom of the Netherands in intemational relations(cf. Vienna Treaty, art 7$2 sub a). This is also true for heads of government and ministers of foreign affairs. The King traditionally plys a central role in the field of foreign affairs. The most solemn treaties are signed by the King himself. In intemational negotiations, the Kingdom is usua lly represented by the minister of Foreign Affa irs or persons acting on behalf of the minister and under his instructions Occasionally, other persons have represented the Kingdom, sometimes in a(seemingly) independent role part from his role in international relations, the King also has a role to pay in domestic affairs, albeit a very lim ited one. In the process of ca binet formation-which is usually a matter of coa litions between political parties in the Netherlands- the King appoints the formateur, who leads the negotations between the political parties. Normally speaking the formateur becomes the new Prime Minister, although there is no rule of constitutional law which makes this necessary. Moreover, there is a chance that a fomateur will not be succesful and has to be repaced by another formateur. The new Prime Minister takes political responsibility for the decisions which the King has taken during the formation of the new ca binet, including the appointment of formateurs The Const itution also provides for some other tasks, such as the ratification of Acts of parliament (article 87 of the Constitution) or the reading of the official speech (troonrede) at the State Opening of Parliament (article 65 of the Constitution). These tasks do not involve the exercise of any real power Who is head of government? The Dutch Constitution has never mentioned a Head of govemment. Until recently this used to be no problem. Over the past years, however, questions have been asked oncerning the position of the Dutch Prime Minister in relation to the European Council, which according to article 4 of the Treaty on European Union consists of Heads of Governmentand Heads of State. Since in the Netherlands the King is part of the overnment(article 42 of the Constitution )and is head of state, one might think that the King is head of govemment as well, but in practice this was not the case. The position of Head of government has-until the year 2000-never been fomma lly recognised. The position of the Prime Minister is trad itionally referred to in the Netherlands asa primus inter pares. Like its parallels in other countries, Dutch prime ministership rose to prominence during the second haif of the 19th century. Dom inating figures like Johan Kortmann& Bovend Eert 2000, p. 78; Burkens c.s. 2001, P. 222. Besselink 1996, p. 14 Bovend Eert2000 Bovend Eert2000, P. 78. Rehwinkel 1991- Rehwinkel/Bovend Eert/Hockstra l 994
POLITICAL AND CRIMINAL RESPONSIBILITY 3 in constitutional doctrine ever since.6 The King as Head of State has the power to bind the Kingdom of the Netherlands in international relations (cf. Vienna Treaty, art 7 § 2 sub a). This is also true for heads of government and ministers of foreign affairs. The King traditionally plays a central role in the field of foreign affairs. The most solemn treaties are signed by the King himself.7 In international negotiations, the Kingdom is usually represented by the minister of Foreign Affairs or persons acting on behalf of the minister and under his instructions. Occasionally, other persons have represented the Kingdom, sometimes in a (seemingly) independent role. Apart from his role in international relations, the King also has a role to play in domestic affairs, albeit a very limited one.8 In the process of cabinet formation - which is usually a matter of coalitions between political parties in the Netherlands - the King appoints the formateur, who leads the negotations between the political parties. Normally speaking the formateur becomes the new Prime Minister, although there is no rule of constitutional law which makes this necessary. Moreover, there is a chance that a formateur will not be succesful and has to be replaced by another formateur. The new Prime Minister takes political responsibility for the decisions which the King has taken during the formation of the new cabinet, including the appointment of formateurs. The Constitution also provides for some other tasks, such as the ratification of Acts of parliament (article 87 of the Constitution) or the reading of the official speech (troonrede) at the State Opening of Parliament (article 65 of the Constitution). These tasks do not involve the exercise of any real power. 3 Who is head of government? The Dutch Constitution has never mentioned a Head of government. Until recently this used to be no problem. Over the past years, however, questions have been asked concerning the position of the Dutch Prime Minister in relation to the European Council, which according to article 4 of the Treaty on European Union consists of `Heads of Government' and Heads of State. Since in the Netherlands the King is part of the government (article 42 of the Constitution) and is head of state, one might think that the King is head of government as well, but in practice this was not the case. The position of Head of government has - until the year 2000 - never been formally recognised.9 The position of the Prime Minister is traditionally referred to in the Netherlands as a primus inter pares.10 Like its parallels in other countries, Dutch prime ministership rose to prominence during the second half of the 19th century. Dominating figures like Johan 6. Kortmann& Bovend'Eert 2000, p. 78; Burkens c.s. 2001, p. 222. 7. Besselink 1996, p. 14. 8. Bovend'Eert 2000. 9. Bovend'Eert 2000, p. 78. 10. Rehwinkel 1991; Rehwinkel/Bovend'Eert/Hoekstra 1994
DE LANGE Thorbecke(1798-1872), who led the- then much smaller -Cabinet during the years 1849-1853, 1862-1866, and again in 1871-1872, and later Abraham Kuyper (1837-1920 Prime Minister from 1901-1905, took a position which led Van Raalte in his 1917 dissertation about the office of prime minister to the conclusion that there was a discrepancy between written law and political reality. At that tme, the presidency of the Council of ministers was only temporarily held: the ministers elected their president annually. The Royal Decree of September 26, 1922, no. 18, ended this situation and made the presidency of the council of ministers a pemanent position. Since 1933 nomally ough not always, the for ho was asked by the King to government, became prime minister. There was no election by the Council of ministers, although this was still required by the Council's Reglement van Orde. I In 1983, the present article 45 was incorporated in the Constitution. The second section of that article states that the Prime minister is the president of the Council of ministers. It was generally acknowledged that this provision does not make hm head of the govemment In 2000, in its Memorandum on Kingship(Beschounw ing over het koningschap, TK 27409, nr. 1), the Cabinet took the position(a lbeit implicitly and in passing only )that the Prime Minister is the head of government (regeringsleider). Almost certainly, this sentence was written especially for use abroad, to provide clarity with regard to the position of the Dutch Prime Minister. The position of the Prime Minister as the Head of Government has been generally recognised. The reference in the 2000 Memorandum only affirmed and confirmed the situation that had developed inside the Cabinet As a matter of constitutional law, the situation may be summarized as follows The King is Head of State(an office not mentioned in the Constitution)and member ofthe Govemment(article 42 of the Constitution) The Prime minister is head of the Government(an office not mentioned in the Constitution, although article 45$ 2 awards the prime minister the position of president of the Council of ministers) The King is inviolable, the ministers are responsible(article 42 of the Constitution) The responsibility of ministers is criminal and political. Criminal responsibility is regulated by the 1855 Act on Ministerial Responsibility(Wet ministeniele verant- woordeljkheid, which so far has never been applied. The extent of political responsibility is entirely a matter of unwritten law and convention. Inviok bility of the King seems to many people to make legal sense only if it is understood as inviolability of the King s person. Nevertheless, during the preparation of the Constitution in 1848 it was argued by members parliament that unlike the Belgian Constitution of 1831 the dutch Constitution should not refer to the King s person, but to the King. The reasons for this are not explicitly stated during the parliamentary debates on the revision of the Constitution in 1848. They may be found in monarchical sentiment in times of a Van Raalte 1954,p. ll
DE LANGE 4 Thorbecke (1798-1872), who led the - then much smaller - Cabinet during the years 1849-1853, 1862-1866, and again in 1871-1872, and later Abraham Kuyper (1837-1920), Prime Minister from 1901-1905, took a position which led Van Raalte in his 1917 dissertation about the office of Prime minister to the conclusion that there was a discrepancy between written law and political reality. At that time, the presidency of the Council of ministers was only temporarily held: the ministers elected their president annually. The Royal Decree of September 26, 1922, no. 18, ended this situation and made the presidency of the council of ministers a permanent position. Since 1933 normally, though not always, the formateur, i.e. the person who wa s asked by the King to form a government, became prime minister. There was no election by the Council of ministers, although this was still required by the Council's Reglement van Orde. 11 In 1983, the present article 45 was incorporated in the Constitution. The second section of that article states that the Prime minister is the president of the Council of ministers. It was generally acknowledged that this provision does not make him head of the government. In 2000, in its Memorandum on Kingship (Beschouwing over het koningschap, TK 27 409, nr. 1), the Cabinet took the position (albeit implicitly and in passing only) that the Prime Minister is the head of government (`regeringsleider'). Almost certainly, this sentence was written especially for use abroad, to provide clarity with regard to the position of the Dutch Prime Minister. The position of the Prime Minister as the Head of Government has been generally recognised. The reference in the 2000 Memorandum only affirmed and confirmed the situation that had developed inside the Cabinet. As a matter of constitutional law, the situation may be summarized as follows: - The King is Head of State (an office not mentioned in the Constitution) and member of the Government (article 42 of the Constitution); - The Prime minister is head of the Government (an office not mentioned in the Constitution, although article 45 § 2 awards the prime minister the position of president of the Council of ministers); - The King is inviolable, the ministers are responsible (article 42 of the Constitution). The responsibility of ministers is criminal and political. Criminal responsibility is regulated by the 1855 Act on Ministerial Responsibility (Wet ministeriële verantwoordelijkheid), which so far has never been applied. The extent of political responsibility is entirely a matter of unwritten law and convention. Inviolability of the King seems to many people to make legal sense only if it is understood as inviolability of the King's person. Nevertheless, during the preparation of the Constitution in 1848 it was argued by members parliament that unlike the Belgian Constitution of 1831 the Dutch Constitution should not refer to the King's person, but to the King. The reasons for this are not explicitly stated during the parliamentary debates on the revision of the Constitution in 1848. They may be found in monarchical sentiment in times of a 11. Van Raalte 1954, p. 11
POLITICAL ANDCRIMINAL RESPONSIBILITY democratic revolution in Europe. As far as the Netherlands are concemed, 1848 comes close to a constitutional and political revolution as well. In that year, the foundations were laid for the development of a parliamentary system, which matured in a period of about 20 years. That parliamentary system gradually became more democratic with the extension of the franchise, although general suffrage was not introduced before 1917, then again under the influence of political developments abroad Political responsibility A D. Belinfante, professor of Administrative law at the University of Amsterdam already in the 1960s suggested that the basic rules with regard to political responsibility were interlinked and could be formulated in the following way 1. No powers without responsibility- No one should have powers to exercise offical public authority, unless he or she can be held responsible for the exercise(ornon-exercise) f those powers; 2. No responsibility without powers- No one should be held responsible for acts or omissions falling outside the scope of his powers These are very clear guidelines, which still have their practical value. Being guidelines, they cannot and should not be interpreted too strictly in practice. Political responsibility includes that one may be held responsible for having failed to obtain certain powers, if such an omission results in grave damage to the public interest. It implies also, that if members of parliament ask a minister for infomation which lies outside the scope of a ministers powers, the minister will normally answer such questions if it is obvious that either no other minister would be able to answer, or failure to answer would be considered as a political weakness which might result in political consequences for the minister involved 4.2 History of political responsibility 4.2. 1 Origins of political responsibility of ministers in the Netherlands The political responsibility of ministers was introduced into the Dutch Constitution in 1848. Crim inal responsibility of m inisters had existed since 1840, when articles 75-77 of the Constitution were revised. The new article 75 provided that the Heads of ministeral Departments were responsible for all acts which they performed or to which they contributed or cooperated, by which the Constitution or an Act of Parliament would be iolated article 77 provided that the hoge raad would be the court before which the For a discussion of political responsibility and its relationship to other forms of responsibility,see Elzinga 1994
POLITICAL AND CRIMINAL RESPONSIBILITY 5 democratic revolution in Europe. As far as the Netherlands are concerned, 1848 comes close to a constitutional and political revolution as well. In that year, the foundations were laid for the development of a parliamentary system, which matured in a period of about 20 years. That parliamentary system gradually became more democratic with the extension of the franchise, although general suffrage was not introduced before 1917, then again under the influence of political developments abroad. 4 Political responsibility12 4.1 Introduction: the Basics A.D. Belinfante, professor of Administrative law at the University of Amsterdam, already in the 1960's suggested that the basic rules with regard to political responsibility were interlinked and could be formulated in the following way: 1. No powers without responsibility - No one should have powers to exercise official public authority, unless he or she can be held responsible for the exercise (or non-exercise) of those powers; 2. No responsibility without powers - No one should be held responsible for acts or omissions falling outside the scope of his powers. These are very clear guidelines, which still have their practical value. Being guidelines, they cannot and should not be interpreted too strictly in practice. Political responsibility includes that one may be held responsible for having failed to obtain certain powers, if such an omission results in grave damage to the public interest. It implies also, that if members of parliament ask a minister for information which lies outside the scope of a minister's powers, the minister will normally answer such questions if it is obvious that either no other minister would be able to answer, or failure to answer would be considered as a political weakness which might result in political consequences for the minister involved. 4.2 History of political responsibility 4.2.1 Origins of political responsibility of ministers in the Netherlands The political responsibility of ministers was introduced into the Dutch Constitution in 1848. Criminal responsibility of ministers had existed since 1840, when articles 75-77 of the Constitution were revised. The new article 75 provided that the Heads of Ministerial Departments were responsible for all acts which they performed or to which they contributed or cooperated, by which the Constitution or an Act of Parliament would be violated. Article 77 provided that the Hoge Raad would be the court before which the 12. For a discussion of political responsibility and its relationship to other forms of responsibility, see Elzinga 1994
charges with regard to the responsibility mentioned in article 75 were brought. This put beyond doubt that responsibility in article 75 of the 1840 Constitution referred to criminal responsibility only Political responsibility was seen in 1848 as an extension of criminal res In the period between 1848 and 1868, a parliamentary system developed in which the confidence of the States-general in the Cabinet, and in m inisters individually, became the crucial factor. Parliament emerged from the conflicts of the years 1866-1868 as a clear winner, and it was then firmly established that Parliament ultimately decided the fate of ne ministers, and not the other way roun 4.3 The classical doctrine of ministerial responsibility According to the classical doctrine of ministerial responsibility the minister is responsible for acts of the King, for his own acts or om issions, as well as for the acts of civil servants working under his direction. Ministers are responsible to Parliament. Both Chambers of the States-General have the power to require infomation from ministers, and ministers are under an obligation to provide such infomation unless the prov ision of such information conflicts with the interests of the State(article 68 of the Constitution). In practice this exception is rarely invoked, although sometimes ministers refuse to prov ide information on other grounds than those related to security and defense matters. Reasons related to financial interests of the state have also been invoked by ministers. It sometimes happens that ministers refuse information to Parliament on grounds not mentioned in the Constitution. Occasionally, Parliament has accepted such a refusal. I exceptional cases, citizens have been able to obtain information which ministers refused to give to parliament, through the Access to Government Information Act An example is the Securitel-affair, so ca lled after the decision by the Court of Justice in case C-194/94 [ECR 1996, p. 1-2201L, CIA Security v Signalson Securitel. In the debate in the Dutch parliament on the consequences of this decision, ministers refused to provide a list with legislation which should have been notified to the European Commission. Such a list had been drawn up by civil servants, and members of the Second Chamber requested on the basis of article 68 of the Constitution that the minister would reveal its contents to parliament. Parliament accepted the minister's refusal. Citizens then requested the list on the basis of the Government Information(Public Access)Act. The minister refused, but this refusal was speedily quashed by an administrative court. 14 The core rules of the parliamentary system are that Misters are obliged to resign once lack of confidence from Parlament has shown, and that a govemment s not allowed to dissolve(a Chamber Parliament more than oncewith regard to the same issue Pres. Rb. Den Haag 15 juh 1997, Jurisprudentie Bestuursrecht 1997, 208
DE LANGE 6 charges with regard to the responsibility mentioned in article 75 were brought. This put beyond doubt that responsibility in article 75 of the 1840 Constitution referred to criminal responsibility only. Political responsibility was seen in 1848 as an extension of criminal responsibility. In the period between 1848 and 1868, a parliamentary system developed in which the confidence of the States-general in the Cabinet, and in ministers individually, became the crucial factor. Parliament emerged from the conflicts of the years 1866-1868 as a clear winner, and it was then firmly established that Parliament ultimately decided the fate of the ministers, and not the other way round.13 4.3 The classical doctrine of ministerial responsibility According to the classical doctrine of ministerial responsibility the minister is responsible for acts of the King, for his own acts or omissions, as well as for the acts of civil servants working under his direction. Ministers are responsible to Parliament. Both Chambers of the States-General have the power to require information from ministers, and ministers are under an obligation to provide such information unless the provision of such information conflicts with the `interests of the State' (article 68 of the Constitution). In practice this exception is rarely invoked, although sometimes ministers refuse to provide information on other grounds than those related to security and defense matters. Reasons related to financial interests of the state have also been invoked by ministers. It sometimes happens that ministers refuse information to Parliament on grounds not mentioned in the Constitution. Occasionally, Parliament has accepted such a refusal. In exceptional cases, citizens have been able to obtain information which ministers refused to give to parliament, through the Access to Government Information Act. An example is the Securitel-affair, so called after the decision by the Court of Justice in case C-194/94 [ECR 1996, p. I-2201], CIA Security v. Signalson & Securitel. In the debate in the Dutch parliament on the consequences of this decision, ministers refused to provide a list with legislation which should have been notified to the European Commission. Such a list had been drawn up by civil servants, and members of the Second Chamber requested on the basis of article 68 of the Constitution that the minister would reveal its contents to parliament. Parliament accepted the minister's refusal. Citizens then requested the list on the basis of the Government Information (Public Access) Act. The minister refused, but this refusal was speedily quashed by an administrative court.14 13. The core rules of the parliamentary system are that Ministers are obliged to resign once lack of confidence from Parliament has shown, and that a government is not allowed to dissolve (a Chamber of) Parliament more than once with regard to the same issue. 14. Pres. Rb. Den Haag 15 juli 1997, Jurisprudentie Bestuursrecht 1997, 208
POLITICAL ANDCRIMINAL RESPONSIBILITY The classical doctrine of ministerial responsibility rests on the assumption that there is a sufficiently hierarchical relationship between ministers and civil servants. Ministers must ha ve effective controlover their civil servants The classical doctrine of ministerial responsibility holds that the minister is the control of the minister. For the theoretical foundations of this model of bureaucracy one is often referred to Max Weber. The model rests on the assumption that there is a hierarchical structure of ministerial departments, and that the minister has sufficient powers as well as possibilities to ensure that his civ il servants do what the minister wants them to do, and provide the minister with all the relevant information. If these conditions are fulfilled, Parliament may have effective controlover the executive, via the minister The classical doctrine holds that m inisterial responsibility contains various elements Responsibility for acts of the King. Following article 42 of the Constitution, the King is inviolable, and the ministers are responsible. This is universally taken to mean that nothing the King ever says or does can entail political, crim inal or civil responsibility. 15 The King may not be 'exposed, i.e. his acts may in no way cause controversy and if so this should never touch the King personally. In practice, the Prime Minister is the minister who is most closely in touch with the King. Every week the King is consulted, the Prime minister supervises the writing of the King s texts, hardly any act of the King will escape ministerial control. In practice, however, there is a certain recognition of the privacy of the King s person, including a say in holiday destinations. I6 Responsibility for the ministers own acts. This is the most obvious part of ministerial responsibility. It is im portant to note that responsibility regards the office of minister, whereas political confidence(as relevant in the rule of confidence)regards his or her person. This means that parliament may express lack of confidence also on the occasion of a ministers private behaviour Responsibility with regard to acts of civil servants. This responsibility used to be self-evident, but in practice it is possibly the case that more or less autonomous acts of civil servants, and the restructuring of the civil service in order to meet modern organisational and political requirements and insights, have done much to undermine classical structures of political responsibility. The situation in the Netherands is probabl less dramatic than in the United Kingdom where a recent manual of constitutional law Although in the Memore van Toelichting(White Paper) on the approval of the Statute of the International Crminal Court a remarkable passage can be found in whih it s said that a. in the Dutch constitutional system, the King is not a political Head of State but a representative! Head of State, and b it follows from article 42 of the Constitution that the king cannot commit crim nal offences snce the Kings acts are fully covered by minsterial respons bility. Kamershkken 27 484 nr 3, p. 9. This must aslip of the pen, to put it mildly. Forcriticism of the view ofthe White Paper, see Kortmann 1999 Although thi may be poltically charged as was the case when Queen Beatrix left for Austria on holiday shortly after Haider's party won the elctions and the memberstates of the European Union were onsidering sanctions against Austria
POLITICAL AND CRIMINAL RESPONSIBILITY 7 The classical doctrine of ministerial responsibility rests on the assumption that there is a sufficiently hierarchical relationship between ministers and civil servants. Ministers must have effective control over their civil servants. The classical doctrine of ministerial responsibility holds that the minister is politically responsible to parliament and that civil servants do their work entirely under the control of the minister. For the theoretical foundations of this model of bureaucracy one is often referred to Max Weber. The model rests on the assumption that there is a hierarchical structure of ministerial departments, and that the minister has sufficient powers as well as possibilities to ensure that his civil servants do what the minister wants them to do, and provide the minister with all the relevant information. If these conditions are fulfilled, Parliament may have effective control over the executive, via the minister. The classical doctrine holds that ministerial responsibility contains various elements: - Responsibility for acts of the King. Following article 42 of the Constitution, the King is inviolable, and the ministers are responsible. This is universally taken to mean that nothing the King ever says or does can entail political, criminal or civil responsibility.15 The King may not be `exposed', i.e. his acts may in no way cause controversy and if so this should never touch the King personally. In practice, the Prime Minister is the minister who is most closely in touch with the King. Every week the King is consulted, the Prime minister supervises the writing of the King's texts, hardly any act of the King will escape ministerial control. In practice, however, there is a certain recognition of the privacy of the King's person, including a say in holiday destinations.16 - Responsibility for the minister's own acts. This is the most obvious pa rt of ministerial responsibility. It is important to note that responsibility regards the office of minister, whereas political confidence (as relevant in the rule of confidence) regards his or her person. This means that parliament may express lack of confidence also on the occasion of a minister's private behaviour. - Responsibility with regard to acts of civil servants. This responsibility used to be self-evident, but in practice it is possibly the case that more or less autonomous acts of civil servants, and the restructuring of the civil service in order to meet modern organisational and political requirements and insights, have done much to undermine classical structures of political responsibility. The situation in the Netherlands is probably less dramatic than in the United Kingdom, where a recent manual of constitutional law 15. Although in the Memorie van Toelichting (White Paper) on the approval of the Statute of the International Criminal Court a remarkable passage can be found in which it is said that a. in the Dutch constitutional system, the King is not a `political' Head of State but a `representative' Head of State, and b. it follows from article 42 of the Constitution that the King cannot commit criminal offences since the King's acts are fully covered by ministerial responsibility. Kamerstukken 27 484 nr. 3, p. 9. This must be a slip of the pen, to put it mildly. For criticism of the view of the White Paper, see Kortmann 1999. 16. Although this may be politically charged as was the case when Queen Beatrix left for Austria on holiday shortly after Haider's party won the elections and the member states of the European Union were considering sanctions against Austria
DE LANGE stated that the doctrine of indiv idual ministerial responsibility has been significantly weakened over the past ten years or so, so that it can no longer be said, in our view, that it is a fundamental doctrine of the constitution 17 Nevertheless also in the Netherlands there have been complications in apply ing the doctrine of ministerial responsibility in some cases where acts of civil servants were involved The clssical doctrine is really quite smple. As is well-known, practice is much more complicated. First and most importantly, there is the problem of infomation: it is not always certa in that the civil servants give the right information to the ministers, and that it is right to blame the minister if the civil servants made an error in this respect Apart from cases in which ministers have been misled, or have not been fully informed by their civil servants, there have been cases in which civ il servants have not informed their m inister a bout possible implications When Winnie Sorgdrager became minister of Justice in 1994, one of her first acts was to put her signature undera deal with a crim inal informer. This deal had already been made under the previous minister. Although formally responsible, the minister was not infomed about certain implications of the deal. Among other things, the informer was pad an amount of money to set up a new life abroad with a new identity. It later tumed out-to great em harrassment of the minister of Justice-that the informer had duly received the money but hadalways rema ined in rijswijk(very nearthe Hague), where he lived Also, there are cases in which civil servants made a wrong assessment of available information and of the need to tell the minister A clear example is the case of the Biilmer-disaster. An El Al freight Jumbo crashed on an block of flats in a residential area in Am sterdam on october 4. 1992 Infommation regard ing the cargo was not speedily given to the minister of Transport but kept confidential by certain civil servants. This became apparent only during a parliamentary inquiry more than six years ater, and led to a fierce reaction both from the inquiry comm ittee and from the prime minister. It later turned out that the information had pobably been incorrect any way but the civil servants' attitude in this matter was a matter of heated debate Political responsibility of ministers is commonly described as risk liability, ie. that it is not necessary that a fault lies with the office-holder. It is a matter of dispute whether it is necessary that a minister can be blamed personally for acts or omissions of civil servants 18 Following Mark Freedland, one could compare govemmental organisations and Verhey200,p.3590
DE LANGE 8 stated that the doctrine of individual ministerial responsibility `has been significantly weakened over the past ten years or so, so that it can no longer be said, in our view, that it is a fundamental doctrine of the constitution.'17 Nevertheless, also in the Netherlands there have been complications in applying the doctrine of ministerial responsibility in some cases where acts of civil servants were involved. The classical doctrine is really quite simple. As is well-known, practice is much more complicated. First and most importantly, there is the problem of information: it is not always certain that the civil servants give the right information to the ministers, and that it is right to blame the minister if the civil servants made an error in this respect. Apart from cases in which ministers have been misled, or have not been fully informed by their civil servants, there have been cases in which civil servants have not informed their minister about possible implications. When Winnie Sorgdrager became minister of Justice in 1994, one of her first acts was to put her signature under a deal with a criminal informer. This deal had already been made under the previous minister. Although formally responsible, the minister was not informed about certain implications of the deal. Among other things, the informer was paid an amount of money to set up a new life abroad with a new identity. It later turned out - to great embarrassment of the minister of Justice - that the informer had duly received the money but had always remained in Rijswijk (very near the Hague), where he lived. Also, there are cases in which civil servants made a wrong assessment of available information and of the need to tell the minister. A clear example is the case of the Bijlmer-disaster. An El Al freight Jumbo crashed on an block of flats in a residential area in Amsterdam on October 4, 1992. Information regarding the cargo was not speedily given to the minister of Transport but kept confidential by certain civil servants. This became apparent only during a parliamentary inquiry more than six years later, and led to a fierce reaction both from the inquiry committee and from the prime minister. It later turned out that the information had probably been incorrect anyway but the civil servants' attitude in this matter was a matter of heated debate. Political responsibility of ministers is commonly described as risk liability, i.e. that it is not necessary that a fault lies with the office-holder. It is a matter of dispute whether it is necessary that a minister can be blamed personally for acts or omissions of civil servants.18 Following Mark Freedland, one could compare governmental organisations and 17. Jowell and Oliver 2000: viii. 18. Verhey 2001, p. 35 sqq
POLITICAL ANDCRIMINAL RESPONSIBILITY departments to large ships. The arger the ship, the less it is approprate to say that the t ptain is steering it. On the other hand. 'if the super-tanker founders on the rocks, we nd to regard it as ra ther over-punctilious for the captain to feel obliged to go down with the ship. Freedland's observation that responsibility was less seen to be taken on a personal basis but more and more on an institutional or vicarious basis, and that in those circumstances, it came to seem less necessary for the minister to pay a personal penat for departmental error by resigning from office, is certa inly also approprate for the Netherlands. The assessment-and maybe even the dem ise or at least the crisis-of the classical conception of ministeral responsibility as inappropriately sacrif ical has led in the Netherlands to what was termed a democracy of excuse ( sorry -democratie,) Responsibility with regard to autonomous adm inistrative bodies/agencies. 2IWith regard to autonom ies administrative bodies (zelfstandige bestursorganen) ministers have less powers than with regard to the civil service. This leads to a diminished scope of ministerial responsibility. Powers with regard to autonomous bodies may include powers f appointment, powers of supervision, and powers with regard to the budget. From the autonomous administrative bodies is presently debated by the States-Genera28698 start it has been recognised that there would be problems and complications with ministerial responsibility with regard to autonomous bodies/agencies. Precisely becaus they were not part of the classical departmental organisation, but were placed distance from it though not entirely privately organised, the crucial question of bi and manageral autonomy arose. A governmental proposal for an Act conceming 4.4 Modern developments Ministerial responsibility has been a matter of continuous debate over the past decades The main problems which led to modern developments in the doctrine of ministerial responsibility have to do with the relationships between ministers and their civil servants As in many other countries, developments in the public sector in the Netherland have included the rise of the civil service and of bureaucratic government apparatuses. Not only an increase in numbers but also a growing power of the bureaucracy, especially after World War Il, led to questions with regard to political control, the relationship between ministers and their civil servants, and the relationship between ministers and Parliament 19. Freedland 1999, p. 121. Legslative proposal27426, for an Act regarding autonomous adminstrative bodies. For a thorough A list of such bodies can be found at httm/ overheidnL Commissie- Scheltema 1993: Elzinga 1994; Commisse-Holtslag 1998; Sorgdrager 1999; Bovens 2000 erhe 2001
POLITICAL AND CRIMINAL RESPONSIBILITY 9 departments to large ships. The larger the ship, the less it is appropriate to say that the captain is steering it. On the other hand, `if the super-tanker founders on the rocks, we tend to regard it as rather over-punctilious for the captain to feel obliged to go down with the ship.'19 Freedland's observation that responsibility was less seen to be taken on a personal basis but more and more on an `institutional' or `vicarious' basis, and that `[i]n those circumstances, it came to seem less necessary for the minister to pay a personal penalty for departmental error by resigning from office',20 is certainly also appropriate for the Netherlands. The assessment - and maybe even the demise or at least the crisis - of the classical conception of ministerial responsibility as `inappropriately sacrificial' has led in the Netherlands to what was termed a `democracy of excuse' (`sorry-democratie'). - Responsibility with regard to autonomous administrative bodies / agencies. 21 With regard to autonomies administrative bodies (zelfstandige bestuursorganen) ministers have less powers than with regard to the civil service. This leads to a diminished scope of ministerial responsibility. Powers with regard to autonomous bodies may include powers of appointment, powers of supervision, and powers with regard to the budget. From the start it has been recognised that there would be problems and complications with ministerial responsibility with regard to autonomous bodies / agencies. Precisely because they were not part of the classical departmental organisation, but were placed at a distance from it though not entirely privately organised, the crucial question of budgetary and managerial autonomy arose. A governmental proposal for an Act concerning autonomous administrative bodies is presently debated by the States-General.22 4.4 Modern developments Ministerial responsibility has been a matter of continuous debate over the past decades.23 The main problems which led to modern developments in the doctrine of ministerial responsibility have to do with the relationships between ministers and their civil servants. As in many other countries, developments in the public sector in the Netherlansd have included the rise of the civil service and of bureaucratic government apparatuses. Not only an increase in numbers but also a growing power of the bureaucracy, especially after World War II, led to questions with regard to political control, the relationship between ministers and their civil servants, and the relationship between ministers and Parliament, 19. Freedland 1999, p. 121. 20. Freedland 1999, p. 121. 21. Legislative proposal 27 426, for an Act regarding autonomous administrative bodies. For a thorough discussion of the position of autonomous administrative bodies, see Zijlstra 1997. 22. A list of such bodies can be found at http://www.overheid.nl. 23. Crince Le Roy 1969; Van Maarseveen 1973; Lubberdink 1982; Damen 1987; Commissie-Scheltema 1993; Elzinga 1994; Commissie-Holtslag 1998; Sorgdrager 1999; Bovens 2000; Verhey 2001
DE LANGE both with regard to political control and with regard to Parliament,'s role in the process of In an essay in the Nederlands unistenblad, Scheltema has summarized the ratio of political responsibility in two points s that government policies correspond with the wishes of the majority of the population, since political functionaries make the crucial policy choices; political responsibility serves democratic legitimation; In a general sense, ministerial responsibility serves to ensure that the govemmental organisation functions well. 25 It serves to establish lines of responsibility within the governmental organisation. Since the organisation is hierarchical, responsibility is natura lly also hierarchical Scheltema argues that for guaranteeing the quality of the public serv ice, other mechanisms than political responsibility of ministers are more appropriate Monitoring by independent bodies, such as a ' Quality Cham ber, would be feasible and appropriate according to Scheltema. 26 4.5 The problemofgovernment integrity A parliamentary comm ission has made an inquiry into the use of experimental forms of criminal investigation by the police. During that inquiry allegations were made that olice officers had been involved in drug trafficking. Obviously this caused grave concern, so much so that after some years a new parliamentary inquiry was made to see what had been done with the results of the first one. The second inquiry resulted in a report in which aga in very alarming figures were produced. Both these inquiries gave a boost to the govermment's attempts to com bat corruption and promote the integrity of vernment officals. Several proposals were made in this context, both with regard to general criminal law as with regard to the rules conceming civil servants. The government has taken a number of initatives with regard to the struggle against corruption and that this issue has a prom inent position on the political agenda 5 Relationship between political and criminal responsibility of officials As an explanation for the fact that the Act on Ministerial Responsibility has never been pplied, Kortmann has suggested27 that in the Netherlands there is less need of criminal responsibility of ministers because they can be sent away for political reasons, Koopmans 1970 already called for an agonising reappraisal of the role of Parliament. Scheltema2000, p. 1862. For a different view, see Zilstra 2001 Kortmann 1995. Kortmann& Bovend Eert 2000, p. 116: Abo as far as crimnal respons bility is Icerned, it can be stated that this is completely eclipsed by politicalresponsibili
DE LANGE 10 both with regard to political control and with regard to Parliament's role in the process of legislation.24 In an essay in the Nederlands Juristenblad, Scheltema has summarized the ratio of political responsibility in two points: * that government policies correspond with the wishes of the majority of the population, since political functionaries make the crucial policy choices; political responsibility serves democratic legitimation; * In a general sense, ministerial responsibility serves to ensure that the governmental organisation functions well.25 It serves to establish lines of responsibility within the governmental organisation. Since the organisation is hierarchical, responsibility is naturally also hierarchical. Scheltema argues that for guaranteeing the quality of the public service, other mechanisms than political responsibility of ministers are more appropriate. Monitoring by independent bodies, such as a `Quality Chamber', would be feasible and appropriate according to Scheltema.26 4.5 The problem of government integrity A parliamentary commission has made an inquiry into the use of `experimental' forms of criminal investigation by the police. During that inquiry allegations were made that police officers had been involved in drug trafficking. Obviously this caused grave concern, so much so that after some years a new parliamentary inquiry was made to see what had been done with the results of the first one. The second inquiry resulted in a report in which again very alarming figures were produced. Both these inquiries gave a boost to the government's attempts to combat corruption and promote the integrity of government officials. Several proposals were made in this context, both with regard to general criminal law as with regard to the rules concerning civil servants. The government has taken a number of initiatives with regard to the struggle against corruption and that this issue has a prominent position on the political agenda. 5 Relationship between political and criminal responsibility of officials As an explanation for the fact that the Act on Ministerial Responsibility has never been applied, Kortmann has suggested27 that in the Netherlands there is less need of criminal responsibility of ministers because they can be sent away for political reasons, 24. Koopmans 1970 already called for an `agonising reappraisal' of the role of Parliament. 25. Scheltema 2000, p. 1862. 26. For a different view, see Zijlstra 2001. 27. Kortmann 1995. Kortmann & Bovend'Eert 2000, p. 116: `Also as far as criminal responsibility is concerned, it can be stated that this is completely eclipsed by political responsibility
