A Parliamentary disaster ushers in the new era
Herman Tjeenk Willink and Herman Wijffels shine their light on a formation that after last week seems more complicated than ever. On the difference between managers and leaders, restoring trust and the need to embed a dialogue between citizens and politics in a new coalition agreement.
April 7, 2021 — published in De Groene Amsterdammer nr 14
Already in the morning after the ‘Night of Rutte’, an operator of a café had put a sign outside with this text: ‘Terrace open. Because we don’t remember the rules.’ Whether or not Prime Minister Rutte was pretending to have lost his memory about the wrangling with the fate of CDA MP Pieter Omtzigt, it was useful for the café owner to be able to make fun of the cabinet’s coronary restrictions.
With his sign, the café owner made it clear at a glance that a politician who betrays the trust of citizens also undermines the authority of the government. ‘What always amazes me about political authority is the permanent underestimation of citizens,’ says Herman Tjeenk Willink. People may not know the ins and outs of issues in politics and government — because where would they get that knowledge? — but they do have a razor-sharp sense of when something is not right.’
The day after Rutte narrowly survived the parliamentary debate on his role behind the scenes of the cabinet formation, the discussion in the Binnenhof focused on the blow his implausible defense had dealt to the confidence of potential coalition partners in him and his party, the VVD. Tjeenk Willink once wrote that every system has a tendency to turn in on itself, and that was also the case here: politicians were concerned with mutual trust, not with the shaken confidence of citizens in The Hague politics.
Herman Wijffels, former chairman of the Social and Economic Council of the Netherlands and informer of the new government, Balkenende IV, also sees it that way. He observes a gap between society and an administrative elite that has remained stuck in what he calls ‘industrial management’. This incident has aroused the interest of citizens, should we not get involved?
As is often the case — and not incomprehensibly so given the acute need in the formation process — this public distrust is a matter of later concern to politicians. That’s how it goes, is Tjeenk Willink’s experience: not for nothing are broken connections between citizens and politics a leading theme in his publications. For almost half a century in public service — his last official position was vice president of the Council of State (1997–2012) — he witnessed that difficult relationship. In 2018, he reordered his thoughts on politics and governance in the book Bigger Thinking, Smaller Doing. In it he summarized the cause of people’s distrust of the state in the proposition: the government no longer does what citizens expect of it.
Since his retirement Herman Tjeenk Willink has been Minister of State, an honorary position in which he advises the Council of Ministers or the King, when asked, on complicated constitutional issues. On three occasions he was involved as informateur in the formation of cabinets, in 1994 (the first Kok cabinet), 2010 (Rutte I) and 2017 (Rutte III).
The extent to which citizens consider the government credible, he says, depends first and foremost on the extent to which the organs of the state carry out their tasks properly: the parliament, the executive and the judiciary. His assessment of the first two, the representative body and the administration, is as follows: “Both these sources of legitimacy of government authority have been seriously weakened. In the case of the representation of the people, this concerns both its legislative and its controlling task. Investico’s investigation into the quality of legislation (in De Groene Amsterdammer, 11 March 2021 — ed.) had already revealed a lack of interest in co-legislation in parliament, partly as a result of the proliferation of topical debates. As far as control is concerned, the representative body of the people pays too little attention to what it should in fact be monitoring closely: the practical effects of policy. It mainly exercises control beforehand, i.e. on the progress of the policy process, as if it were a policymaker and co-director rather than a controller. In other words, it is neglecting a core task: monitoring the implementation of policy.
He points to the benefits affair as an example. That scandal is not an incident, Tjeenk Willink believes, but a symptom of a failing and errant legal system, in which the legislator allows the will to implement decisive policy to prevail to such an extent that it loses sight of the law. In this case the Tax Authorities felt legitimized by the law against childcare benefit fraud to accuse thousands of people without conclusive evidence of malpractice and to plunder them financially.
According to Tjeenk Willink there is insufficient awareness among the people’s representatives that legislating also means creating law. He quotes with approval Aharon Barak, former president of the Israeli Supreme Court. In The Judge in a Democracy Barak writes about ‘the normative universe of a democracy’: norms such as good faith, justice, reasonableness, human rights, which you must be able to find in legislation.
If these are lacking in the laws, then a task that actually belongs to the representation of the people as co-legislator shifts to the judiciary. The judge then has to take corrective action. This puts him in a difficult and painful position, because he must then, if necessary, go against the intention of the legislator. The judge will rightly hesitate, because such a corrective role has far-reaching consequences for the balance of power between the judiciary and the legislature. The judge does not want a dikastocracy: a government by judges.’
Through Thierry Baudet, radical right-wingers have taken that notion out of mothballs, to place their criticism of ‘activist judges’ in a political-philosophical tradition. But according to Tjeenk Willink he is mistaken: ‘In this case we do not get this dikastocracy because the judge has become activist, but because the representation of the people neglects its roles of co-legislator and controller. The judge can no longer assume that the legislature also shapes the law, that normative universe of democracy.’
In addition to the functioning of the representation of the people, the degree to which citizens consider the government credible depends on the competence of the administration, Tjeenk Willink argues. In other words: on the extent to which government officials and civil servants gear their actions to the normative universe.
According to Tjeenk Willink, it is in the implementation of policy that the competence of the administration, as measured by the standards of integrity, substantive knowledge and a sense of responsibility, really comes to light. The cause of the complaints about failing public services, he says, must be sought in the phenomenon of corporate government. Managers with their own pattern of standards determine the course of events on the shop floor more strongly than before, not the civil servants who stand eye to eye with the citizens and know what their needs are. The control over the implementation of policy has, in other words, shifted to those who understand process management, control methods and performance measurements. The normative universe, then, is that of cost efficiency, not that of service.
Herman Tjeenk Willink: ‘Government, if it is to be democratic, needs self-confident citizens’
Tjeenk Willink once illustrated the consequences for the provision of services to people using the film I, Daniel Blake by Ken Loach, about an elderly British worker who reports to the counters when he becomes incapacitated. It is obvious to everyone that his weak heart makes it impossible for him to work, but still he does not receive any benefits: the authorities he knocks on the door of get lost in their own bureaucratic maze. As a result, he has nowhere to turn. He falls into poverty, his gas and electricity are cut off, his refrigerator becomes empty, all his belongings end up with the pawnbroker. In the end, his heart condition kills him in his struggle with bureaucracy.
Tjeenk Willink: An entire generation of politicians, administrators and civil servants has been brought up thinking and speaking in terms of the government as a business, with costs and benefits. For many, the language of the democratic rule of law has become a foreign language. Often they have a blind spot for the daily work of doctors, teachers, police officers, the people at the Tax Office.’
The benefits affair brought the government’s crisis of legitimacy acutely to light. In this scandal you can see how public distrust is fed when the administration does not adhere to the norms of public service and the people’s representation misunderstands both its legislative and its controlling task.
Tjeenk Willink: ‘That affair was caused by a succession of unfortunate political decisions and choices that saddled the Tax Administration with a task for which it is not at all suited. The crucial mistake at the beginning was to have the tax authorities pay the childcare costs to the parents. The responsibility for implementation then fell to a different department — Finance — than the one that was the penciller of the legislation: Social Affairs. Moreover, collecting money is the core function of the Tax Administration, not disbursing money. All its correction mechanisms are therefore based on collecting money. The House of Representatives then demanded that the parents should be able to dispose of the money quickly, so the Tax Administration had to pay it out as an advance. Then the House insisted on a stricter anti-fraud policy. That was supposed to raise at least 25 million, the equivalent of the cost of the extra supervisors the service got for that purpose.’
He sighs for a moment, then concludes: ‘All decisions in which politics is asking for trouble. At the same time, the Tax Authority was given a cut in its budget, because things could be more efficient there, only to be told that it was a disgrace how badly things were going wrong there. They had tunnel vision, was the reproach from politicians. I then wonder: where does the tunnel actually begin?’
He continues: ‘Citizens have a razor-sharp feel for this. As a result of these decisions, good civil services are destroyed. In the meantime, politics is leaving the real cause of its crisis of legitimacy untouched: its own inadequate functioning as legislator and controller. The representation of the people wants to change, but does not know how to get out of the prisoner’s dilemma. Politicians are — why should we doubt this? — fully rational individuals who want the best and are willing to learn from mistakes. And yet they just can’t get their own fallacies right, even though it is in their best interest to do so.’
Tjeenk Willink recognizes the pattern of action and thinking that caused the benefits affair in other political decisions and choices. Hence he concludes that the affair was not an incident but a symptom of a failing and errant democratic legal order. ‘On top of that, there is something else. The government has become very dependent on private parties for its own functioning. That means — to take an example — that it is primarily those private parties who will benefit now that an extra 8.5 billion euros is available for education. One has to fear that a substantial part of the money will not be channelled into the schools themselves, but will be spent on consultant agencies and homework courses.’
In its inability to expose the systemic flaws and get to the heart of the legitimacy problem it has with the public, Tjeenk Willink says politicians sometimes resort to stopgap measures that ignore the problem. They should actually start by removing the causes of the lack of trust, otherwise they are just mopping up the water,’ he says. Then they remove something from the system or add something to it — a new variant of the referendum, for instance, or a different procedure for forming a cabinet. Those kinds of changes don’t take away the problem of inadequate legislation and inadequate monitoring of the effects of policy.’ The removal of the king from that procedure, which the House of Representatives decided to do in 2012 in order to take the lead itself from the start, has created a power vacuum, especially in the first week of the cabinet formation. The largest party benefits from this, at the expense of others.
He explains, “You ask how that came about? In the old procedure, in that first week you had a consultation round in which the king received the vice-president of the Council of State, the chairmen of the Upper and Lower Houses of Parliament and the newly elected party leaders. He asked them what the task of an informateur should be and who it should be. This created a certain calm and detachment in the formation, thanks to the woman or man who in our constitution is supposed to stand above the parties. She or he heard all the politicians involved one by one, whether they had 34 seats or only a few, before a decision was made about the appointment of an informateur and his task. Now, on the day after the elections, the group chairmen take that decision themselves, at the suggestion of the largest party, during a meeting in which they all sit together.’
His conclusion: ‘What is done is done. The point is not to reverse the new procedure. The lesson to be learned is: be careful with this kind of intervention in our constitutional system. It is ingeniously constructed and too complicated to change in an afternoon. This does not mean that everything should remain as it was, but it does mean that you cannot simply unravel the connections in this complex system. Otherwise you could be in for some unpleasant surprises.
Throughout his working life in public service, the need for balance between the powers in the state system has been the compass on which Tjeenk Willink has oriented his reflections. He is convinced that a power with too little countervailing power is irrevocably derailed. This applies to the relationships within the state, i.e. between government, parliament and judges, but also to the relationship between the state and society.
The market, if it is to be sustainable, needs the counterweight of a powerful government,’ he writes in Groter denken, kleiner doen. And the government, if it wants to be democratic, needs self-confident citizens and a powerful civil society.
Herman Wijffels: ‘Don’t close the coalition agreement. Dare to leave it open’.
This leads him to conclude that the corrective movement needed to restore citizens’ trust in politics must come from outside The Hague. Tjeenk Willink: This restoration of the basis of trust with the citizens is something that politicians cannot achieve on their own. It requires external pressure. Change is only possible under two conditions. The first is analyses in which you indicate as precisely as possible what the problem is and also identify as precisely as possible who has the problem. Otherwise, you will fire a shotgun blast and hit next to nothing. The second: that pressure from outside. Citizens, professionals on the shop floor, doctors, teachers, police officers have to say: the way you want it, over there in The Hague, that’s not how it works, that’s not how problems are solved. So we can’t cooperate with that. This realization is slowly getting through to parliament, given the recent investigation into implementing organizations led by VVD MP André Bosman.’
He acknowledges that it is difficult, if not impossible, for citizens to organize themselves into pressure groups that bring with them the same power of numbers as the trade union movement and other interest groups from the time of the pillarisation. Tjeenk Willink: And on top of that, today’s professional associations are very much focused on the financial-economic. Negotiating a higher salary is of course easier than negotiating about the lack of autonomy and decision-making freedom for the professionals.
‘Progress does not come in a smooth transition, but through incidents and small disasters,’ says Herman Wijffels. Kajsa Ollongren’s blunder is one such disaster. A positive test result like that, causing her to run home with papers she has grabbed under her arm, showing us that people are already being shuffled around in the very first phase, has revealed something that has been dormant for much longer. The great discomfort of citizens and the Lower House about the monism, the lack of dualism, that has also proven to be so strangling for our parliamentary democracy in the benefits affair.
According to the former chairman of the Social and Economic Council of the Netherlands (SER), former head of the Rabobank and informateur of the Balkenende IV cabinet in 2007, the chaos surrounding the formation of the government is part of the systemic crisis that he has been warning against since the beginning of this century. Then, in interviews, speeches and now a book, he began to point out the schism between a society that is no longer built along industrial structures and institutions that are still organized that way. ‘The old system worked because few people studied. They had no education, so it was perfectly logical to set up organizations with a pyramidal shape. An arrangement with an elite at the top and a people below, who form the mechanics just like in a factory.’
In numerous places this has already changed; Wijffels sees it in companies and citizens’ movements. ‘The proliferation of cooperatives in the Netherlands. Citizens are increasingly organizing themselves into cooperatives and other collectives. They produce energy and food together, they form housing groups. They increasingly bear joint responsibility: not only for themselves but also for the collective interest. That is the main difference between the industrial age and the new age: where in the industrial age all means were used for the emancipation of the individual, we see that the next emancipation will be about taking responsibility for the collective.’
While this shift is visible throughout the Netherlands, it is politics that has lagged behind. Our parliamentary system is still a legacy from the nineteenth and twentieth centuries. The main movements and ideas still reflect old emancipation movements.’
Industrial governance was part of that industrial age: command and control, says Wijffels. Once every four years we vote and then we put people in place who do what needs to be done without the voter being given a say in the matter. People no longer accept that. In a lively democracy, a lively dialogue must arise between the House of Representatives and the cabinet and thus between the people and the national government.’
The performance of Mark Rutte, and in his wake a long procession of VVD members who have stood up for him in recent days, was in that respect an echo of that industrial style of government. The fact that precisely a man like Pieter Omtzigt, who opposes this culture, was treated as toxic by other members of the administrative elite underlines the gap that has been exposed in The Hague in recent weeks. ‘Omtzigt talks about that new social contract. He is trying to make politics less industrial, more of and for citizens,’ says Wijffels. ‘I assume that many citizens have looked at what has happened with great amazement, and I say this cautiously. But it has also generated enormous interest. Should we as citizens get more involved? Above all, I hope that this whole “incident” will lead to a realization that The Hague needs to deal with society in a different way. Members of parliament and citizens are now saying out loud: if major mistakes are made, as in the case of the benefits affair, shouldn’t we also look at the parliamentary system?’
A new round of formations should start with this question, says Wijffels. It should include the relationship between citizens and The Hague, dualism in the House of Representatives and the question of how new leaders will make themselves vulnerable in the years ahead in relation to the parliament that is supposed to monitor them. But how do you straighten out a formation that is so terribly stuck? You will first have to deal with this major change, you will have to go into depth,’ says Wijffels. He thinks for a few seconds and then refers to a management model of the Massachusetts Institute of Technology (MIT) (Note translator: Presencing Institute as a part of MIT, founded by ao Otto Scharmer (Rachel?)) that starts from a U-curve. That U process was developed because researchers saw that people who have been in a certain system for a long time tend to go straight from a problem to a solution. You can also see that in how Rutte wanted to do the formation. Actually, he wanted to go through to the old coalition as quickly as possible, in one straight line,’ says Wijffels. The MIT people said that if fundamental changes are on the agenda, then you have to explore them in depth first. In business, for example, this is done by sending people out into nature for hours and letting them be alone there. Only when you have penetrated deeply into the problem can you answer two questions: what could the solution be? And can I be part of the solution?’
That search for answers need not take place in complete openness. Although Wijffels sees Ollongren’s accident as a ‘happy accident’ that has accelerated progress, he also believes that a formation process benefits from secrecy. Being open is not the same as throwing everything out into the open; the latter is of course impossible. There is a difference between being closed and being private. A government must dare to be vulnerable when mistakes are made and be transparent about them. At the same time, in certain processes, such as a formation, you need moments where you can find out privately where the consensus lies. Then there must be openness about how that consensus was reached and why the parties agreed to it. But reaching it can only be done in confidentiality, otherwise it can’t be done.’
Wijffels does not want to make any grand pronouncements about what exactly should be discussed in the formation process. He prefers to raise questions or point out the broad outlines, although there is one solution that he believes is obvious: “Don’t close the coalition agreement. If you dare to leave the details open, you will force yourself into that ongoing democratic conversation with parliament in the coming years.’ A well-defined agreement with tight constraints such as those in place in recent years would once again lock up that conversation for years. You would then fall back into that industrial scheme ‘government versus opposition’, in which the majority of the House obediently votes with power. In a living democracy, you have to think about guaranteeing a dialogue between the House and the cabinet. That way you create the opportunity for citizens to provide input.’
That other question that Herman Wijffels would bring when sending the formation table into the wild with this U-model, is the question about who can be part of the solution. For Mark Rutte in particular, that question has been topical for a week now that parties are distancing themselves from him as a person. Again, Wijffels does not want to fill in as an outsider what Rutte’s fate should be. What he does say is that a new era calls for new leaders.
‘Walking around with a listening ear and looking for the greatest common denominator is not enough’, he already said in 2005 to Trouw. ‘You will have to give direction.’ Words to the same effect he repeated recently at Buitenhof, and after a noisy week at the Binnenhof during which Mark Rutte continued to cling to the industrial culture of closed-mindedness, that instruction is painfully accurate. ‘A big distinction I always make is between leadership and management. Leadership is about taking people into new times, new methods of operating; that you help people embrace change. Managing is about making sure the existing order runs. As soon as it falters, you prefer to cover it up, because then in the manager’s view you have failed in your own role.’
How is it possible that the Netherlands is in need of new leadership and at the same time has been voting for a manager for ten years and rewarded him with almost two million votes in the last election? Real change raises all sorts of uncertainties. For a long time citizens had to choose between: I know what is and what I had, and a new open culture in which you don’t know how it will work out for you. I understand all that, especially in an aging country like the Netherlands,’ says Wijffels, who remains hopeful now that a minor parliamentary disaster has pushed the new era over a bump. ‘Last week we saw the beginnings of a people and its representation saying: we’re not going to settle for that close-minded industrial governance culture anymore.’