The ‘Strengthening functions of House of Representatives’ working group advised in 2021 to wait two weekends with votes after the treatment of a bill. In the intervening ‘reflection week’, wrote the working group Under the chairmanship of then SGP leader Kees van der Staaij, “amendments can be weighed against each other and, if necessary, further advice can be requested”.
Things went differently in The Hague this week. Five days, of which two weekend days, were between the debate on the asylum laws last week and the vote on the amendments submitted. It was last Tuesday. That is how it came on a hectic Thursday before the summer recess PVV amendment About the criminalization of illegality almost the majority for the asylum measures law torpedoed. Two parties who present themselves as constitutional conscientia, NSC and SGP, had doubts.
The most controversial provision in the amendment concerned that “people or organizations who illegally help aliens reside in the Netherlands.” They too would be in violation. Only after two letters in which outgoing Minister Van Weel (Justice, VVD) estimated that it would not be too bad with tackling Dutch people who reach illegal migrants, NSC and SGP went along. Van Weel also promised an emergency advice from the Council of State about the criminalization of illegality. This is followed by another debate in the Lower House.
Just like the working group in 2021, the Council of State, with Van der Staaij, also advised last April to take more time in amendments. Under time pressure, “there is often insufficient opportunity for the Minister (s) for the House of Representatives, but also for the minister (s) to be able to think about submitted amendment to his consequences.” Now that this did not happen in advance, it is up to the same department of the Council of State to assess the amendment while a majority of the Chamber has already adopted the amendment to the law.
‘Government must take initiative’
But is that still useful? Paul Bovend’eert, Emeritus Professor of Constitutional Law, calls it a “weird state of affairs.” It is not unique that an amendment after it has been accepted by the House of Representatives leads to turmoil, he says. “But to prevent this mess, they could have kept the mood better. Apparently there was no support for that.” The summer recess, which started this weekend, put pressure on the business.
Inserting the amendment of the law will only follow after a vote in the Senate. In addition to complete rejection of the asylum laws in the Senate, which is conceivable, the space is limited to rock the criminalization of illegality from the package. Bovend’ert calls the so -called ‘novella’ as a possibility. Because the Senate itself cannot make adjustments, it can insist on something that is “also called a disguised amendment,” he says. But the initiative for this short story must come from the government. A part can be put to the Lower House again in the vote with adjustment.
Role Council of State
Jerfi Uzman, professor of Constitutional Law at the University of Amsterdam, fears that the Council of State will be brought into a difficult position. The Advisory Department will consider the amendment this summer. “The Council will soon have to decide how great is the OM will prosecute and that the judge will come to a conviction. That is remarkable because the government and the Chamber have the most important way to prevent that: write down that criminalization in the law. Now you as a legislator are very good at the Council of State.”
According to Uzman, Van Weel can say that the OM will not grant a priority to the persecution of people who help illegal migrants. “In principle, a minister is not about prosecution of that one lady at the Salvation Army.” But the minister does have a power to give general instructions on the investigation policy. “Many factors play a role in this, such as the capacity that the OM can free up itself. But a PVV minister will probably use that authority to prescribe general guidelines different than, for example, a GroenLinks-PvdA minister.”
In order to switch to the criminalization of assistance to illegal immigrants, there must be a major problem, says professor of Criminology Joanne van der Leun (Leiden University). “That is not there. But then you now set something punishable and then you will undermine your own law by saying that you do not carry it out. It is the world upside down.” According to her, it is conceivable that municipalities will get into problems. “You are talking about the criminalization of organizations that form the last safety net, while the pressure is already great on institutions that ensure people who fall between two stools.”
The criminalization in itself is “of fallacies,” says Van der Leun, who regularly investigated the migration policy between 2013 and 2021 and was a member of the Aliens Affairs Advisory Board. “It is often said: there is a persistent problem of people without residence status who do not want to be deported. But criminalization does not add anything.” For the approach of the group that causes nuisance, the criminal law already provides sufficient grounds for prosecution, she says.
According to Uzman, the entire course of events shows how “hypercontroversial” is the asylum file. And so how unusual that the Chamber did not declare this subject controversially, as is usual in major legislative changes after a cabinet has fallen. In this way the Chamber can prevent a outgoing cabinet from ruling over his grave. It is all possible constitutional law, says Uzman. “But you don’t want to saddle a possibly completely different composition of the room with a completely new reality.”