Schotel, a lecturer and researcher, knows all too well that coming up with a catchy headline about administrative law is nearly impossible. And yet we need to discuss the ‘authoritarian characteristics’ of administrative law. He argues this is a major blind spot in both the academic literature and public debate. ‘If administrators intend to act maliciously, administrative law gives them every opportunity to do so.’ In Poland and Hungary, for example, the authoritarian parties actively sought to dismantle the constitutional system in order to pave the way for their authoritarian policies. Yet they left administrative law untouched. Apparently, standard administrative law is already well suited to implementing authoritarian measures.

How can administrative law be utilised?

‘The essence of administrative law is that it enables the government to act effectively. When the administration makes a decision, it is immediately valid. The government can, for example, reclaim a benefit payment, revoke a licence or place a foreign national in detention.’

‘If the decision is not complied with, enforcement can take place immediately. That makes sense, because if a local authority wants people to leave a public square because of safety risks, it doesn’t need to go to court first. The problem is that if the government does something that isn't permitted, it takes a long time to rectify. Even if it is corrected, the damage has already been done. Foreign nationals are detained when they shouldn’t be, or family reunification is postponed. That time is lost, even if the court eventually rules in your favour. You saw that with the benefits scandal too. The damage had already been done.’

Demonstrating under administrative law 

‘Administrators know that they are often not corrected, or only corrected belatedly, and they take advantage of that. For a long time, there were demonstrators who refused to identify themselves, so they could not be prosecuted under criminal law. The state would then say: “Perhaps you are a foreign national without a valid residence permit”. This allowed the government to detain someone. The court eventually ruled that this was not permitted. But a few years later, the government invoked the Aliens Act again during the Maagdenhuis occupation. The government was reprimanded once more, but in practice you can still carry on doing it, even though it’s not allowed.’

‘You see the same thing at the Extinction Rebellion demonstrations. Protesters are often put on a bus and dropped off a few kilometres further on. That’s called administrative relocation. But there is no prior procedure to determine whether that’s justified.

Administrative relocation was originally introduced for the European Football Championship to break up groups of hooligans before the match. But authorities now also use administrative relocation in the context of political demonstrations. The interesting thing is that administrative relocation and the detention of protesters as foreign nationals also took place under a progressive mayor such as Femke Halsema.’

Aren’t there too few alternatives for maintaining public order?

‘I don’t know if there are no other means, but it is easier and cheaper to do it through administrative law. However, the law and the administration of justice come at a price. This is not a win-win situation. The rule of law costs money and can lead to inefficiency in the short term and even in the long term.’

Is broad administrative discretion dangerous even if the intentions are good?

‘Yes, because it doesn’t matter what the intentions are. As a government, you may only act within the scope permitted by law. That is the essence of the law. If good intentions can compensate for a lack of legal authority, then that spells the end of the law. If you can implement decisions that are not lawful, that is a dangerous state of affairs.’

Civil service disobedience

‘We must certainly discuss the role of civil servants in this context. For them, the law is very important. They obey the administration, not because they find those in charge such nice people, but because their obedience has a legal basis. One would therefore expect a civil servant not to implement an unlawful policy, but that is not the case. This is because, in practice, there is no room for the idea that a civil servant must be convinced by their superior that the policy is lawful. This explains why, in a liberal democracy such as the Netherlands, a manager can propose a legally flawed policy. The system does not prevent this. This needs to change: as soon as the legal department says “no”, the policy should not be implemented.’

How do you think administrative law should be applied instead?

‘We need to ask ourselves again: what exactly is administrative law intended for? In which cases is it appropriate that we have this scope within the law? And for which decisions or individuals should we introduce additional safeguards, so that decisions cannot be implemented immediately?’ 

‘In the benefits scandal, for example, the Dutch government could have functioned effectively if the benefits had not been reclaimed immediately. The rule of law would not have been paralysed. But thanks to administrative law, unlawful decisions could remain in force for a long time. Legal protection is then no longer effective. You must be able to use the means to protect yourself in good time. I would say: exclude certain categories from the right to implement a decision immediately and let a judge examine the decision first if the impact on someone’s situation is significant.’ 

‘At the same time, I do recognise the advantages of administrative law. If you are granted a planning permission to build a pigsty or a factory, you can get started straight away. Or if you receive benefits, you don’t have to go to court again to have them confirmed. There is a strong case for having administrative law. But we need to improve the legal framework to ensure that the administration cannot abuse it.’