It turns out the would-be Dutch coalition partners have spent the last three months dancing round constitutional handbags. Half of Ronald Plasterk’s seven-page report on the first stage of negotiations was taken up by a declaration by the four parties that they would safeguard the institutions of government and the rights of citizens – a set of truths that until three months ago were held to be self-evident, but now had to be reinforced with a seven-point plan.
Pieter Omtzigt cited Geert Wilders’s policies on jailing people for visiting mosques and preventive detention without a court hearing to explain why his party, New Social Contract, would nevertheless not join a cabinet with the Party for Freedom. Wilders had earlier made an attempt to placate his potential partners by ditching three bills that had been gathering dust on the shelf – including one to withdraw the right to vote from people with dual nationality – which went against the constitutional protection of equality, and in any case stood no chance of becoming law.
The elephant in the room is that the failure of the coalition talks to make progress is itself putting the constitution under strain. Omtzigt founded his party to restore parliament’s place at the centre of decision-making and strengthen the checks and balances that hold government to account. But that system presupposes that the cabinet has a mandate from the directly elected Lower House. When this mandate is absent, either because a government has just resigned or negotiations are ongoing to form a new one, anomalous democratic situations arise. The normally clear line separating the executive from the legislature becomes blurred: Dilan Yeşilgöz, for example, is currently a minister in the outgoing cabinet, the leader of one of the parties engaged in confidential talks to form a new one, and a member of parliament.
Caretaker periods are supposed to be the exception and not the rule, but since Mark Rutte’s third cabinet resigned more than three years ago, ministers have spent more time in “demissionary” mode than as a fully-fledged government. Convention dictates that caretaker administrations should do the bare minimum necessary to keep the country afloat. But all governments have a duty to respond to events, targets and deadlines. Two of the last three annual budget packages have been delivered by interim finance ministers. Rutte’s third cabinet governed through two coronavirus lockdowns, making and enforcing rules that had a serious impact on people’s personal freedoms. As the health minister for much of that period, now the housing minister, Hugo de Jonge, told Nieuwsuur recently: “The great thing about caretaker governments is that the longer you do it, the less of a caretaker you are.”
The other convention that is supposed to constrain caretaker governments is the list of “controversial” policy areas drawn up by the outgoing parliament at the end of its term. But the list passed by MPs in November was remarkably short. It did not include the so-called “spreading law” that was designed to solve the problem of overcrowded refugee accommodation centres, by giving the deputy justice minister the power to overrule local councils if they refused to house asylum seekers. Rutte’s last cabinet was brought down by a row over asylum seeker numbers, and the spreading law was a bone of contention not just between the parties in parliament, but within the prime minister’s own paty, the VVD. It led to some extraordinary constitutional acrobatics by Yeşilgöz, who tabled a motion in the Lower House calling on the Senate to refrain from debating the bill while the coalition talks were ongoing – even though, as justice minister, she was a member of the cabinet that steered it through the Lower House. Senators protested that she had no business meddling in their affairs, either as an MP or as a prospective coalition partner. And when the Senate defied her wishes and passed the law – with the support of the VVD’s own faction – Wilders called it a “serious problem” and pressed his fellow negotiators to smother it in the womb.
The downside to Hugo de Jonge’s quip is that the longer the coalition talks grind on without producing a new government, the looser the democratic foundations of the old one become. Accountability crumbles when there is no settled majority in parliament for ministers to answer to. Transparency is obscured when there is no coherent policy programme to scrutinise. Since Rutte announced the cabinet’s resignation in July, six of the 29 offices of state have changed hands (though in fairness, Dennis Wiersma had already resigned as schools minister and Liesje Schreinemacher has gone on maternity leave). Wopke Hoekstra departed in September to become the European Union’s climate tsar – a post Frans Timmermans vacated to contest the election as leader of GroenLinks-PvdA. In January Sigrid Kaag left the foreign affairs ministry to head the UN’s reconstruction team in Gaza, while Ernst Kuipers gave up the health brief for a still unpublicised job somewhere abroad. They were preceded by their D66 colleague, Gunay Uslu, who stepped down as junior minister for culture in December to rejoin her family’s travel business.
And so D66, despite being reduced to nine seats at the election, has been able to appoint or promote three cabinet members since then. The four parties in the caretaker government have just 41 of the 150 seats, but an unlimited licence to fill ministerial posts until a new coalition materialises. That could extend to a new prime minister now that Nato has announced it wants to name a new secretary-general by Easter, with Rutte among the favourites to succeed Jens Stoltenberg.
Rutte posed a constitutional conundrum of his own when he threatened to defy the will of MPs if they voted to freeze all future military aid to Ukraine. In the context of maintaining the Netherlands’ international standing – one of the government’s constitutional duties – it was a justifiable stance, but it was also a direct challenge by a government with no mandate to the newly elected parliament. Rutte called MPs’ bluff, warning that if they wanted to enact the motion, they would have to sack his team of ministers first. Without a new government waiting in the wings, that would be a redundant gesture. It is the kind of gauntlet that should not be thrown down lightly. Similarly, if new elections are called, the current cabinet will continue in office, two votes beyond their sell-by date. Far from shoring up the constitution, as Omtzigt hoped, November’s election has exposed a spider’s web of hairline cracks that could potentially bring the house down.
WordsForPress 
