What exactly is state emergency law?

‘State emergency powers determine what the government is permitted to do in times of crisis. Think of a mayor issuing an emergency by-law during serious riots, the government intervening when financial stability is at risk, or a dike bursting.’

Is emergency law sufficiently comprehensive?

‘Not entirely. Crises these days are often complex. Suppose the Netherlands were to be without electricity for a week. That would not only disrupt the power supply but could also affect food supplies and payment transactions. It is impossible to describe all those scenarios precisely in the law in advance.’

‘That is why the legislator generally uses the broad term “extraordinary circumstances”. This term offers flexibility but also raises questions. Some critics describe it as a carte blanche for the administration.’

Is it indeed a carte blanche for the government?

‘No, fortunately not. If extraordinary circumstances are invoked under emergency law, a procedure must be followed that involves Parliament in the exercise of emergency powers.’

‘This was clearly evident in 2024, when Minister Marjolein Faber attempted to abuse the emergency provisions of the Aliens Act. She announced that she intended to implement her strict asylum policy by invoking the “extraordinary circumstances” clause under emergency law. The idea was that this would allow the government to deviate from existing immigration law. From a constitutional perspective, this was deeply concerning. Emergency powers are intended for exceptional circumstances, not to implement policies for which there is insufficient scope under ordinary law.’

‘Moreover, the consequences can be irreversible. If people are deported, for example, it is not easy to reverse that decision afterwards. That is precisely why robust safeguards are so important.’

‘The House of Representatives made it clear that it did not support Faber’s plan, which ultimately led to the plan being withdrawn. The “checks and balances” of the rule of law, the system of democratic control and counterbalance, worked well in this instance. This parliamentary scrutiny is not merely a formal step but also sends an important signal: even in a crisis, the government cannot simply do whatever it wants.’

Is the oversight of emergency law properly organised after all?

‘Unfortunately not. There is also a form of emergency law with no such parliamentary oversight, and that concerns me most. Under so-called “unrestricted emergency law”, an administrator can intervene immediately, without first going through a special procedure. This can sometimes be very practical at the local level. A mayor, for example, must be able to act swiftly in the event of serious disturbances.’

‘But over the years, such powers have also been extended into other areas, including sectors where the consequences can be far more serious. The checks and balances under the rule of law for using that kind of emergency law are inadequate. My proposal is therefore to abolish forms of emergency law that have no formal requirements at the national level. That does not mean that, in the event of an acute crisis, the government must first go through lengthy procedures. There can be emergency procedures in place that allow for swift action.’

Why do we need to take a critical look at emergency law now?

‘This is a politically charged subject. Whether control mechanisms work properly also depends on the composition of the Cabinet and the States General. In 2024, we saw that this went well in the case of Minister Faber. But opportunity makes the thief: the government holds democratic rule of law while also using emergency law. In this day and age, with the rise of right-wing extremism, I believe this places even greater demands on the legislature and that greater care must be taken when invoking emergency powers.’

What kinds of emergencies lie ahead?

‘We will face crises whose exact nature we do not yet know. Think of large-scale digital disruptions or problems with artificial intelligence. An AI system could, for example, disrupt financial transactions or affect the electricity or drinking water supply.’

‘Emergency law comes into play once a crisis is already underway. But with some technologies, we need to consider the risks sooner. If you only intervene after essential systems have failed, it may already be too late. That is why we must look not only at the powers the government needs during a crisis, but also at the rules and safeguards that can prevent problems before they arise.’

What do you hope to achieve with your thesis?

‘The legislature is working on modernising emergency powers. I hope to contribute to this by clarifying how the current system works and where the risks lie. There is still a great deal of confusion about the different types of emergency powers and the conditions under which they may be applied.’

‘Ultimately, it is about protecting the democratic rule of law. The government must be able to act swiftly and effectively in a crisis, but must not use that situation to expand its power without sufficient oversight. Especially now that the future is uncertain, we must think carefully about the limits of that power.’