A brief introduction to the government formation process in the Netherlands

Los informateurs Henk Kamp, y Wouter Bos ofrecen su informe final al Presidente Cámara Baja Anouchka Van Miltenburg
Los informateurs Henk Kamp, y Wouter Bos ofrecen su informe final al Presidente Cámara Baja Anouchka Van Miltenburg

1.Background information

To understand the process of forming a government in the Netherlands, one must realise that the Netherlands is traditionally a country of minorities, not only in terms of religion and belief but also in political terms. The Dutch electoral system – proportional representation with no constituencies or threshold for representation in Parliament – makes it relatively
easy for a party to be elected independently to the House of Representatives, the equivalent of the Spanish Congreso de los Diputados (Congress of Deputies). Parties do not need to agree to cooperate with other parties prior to an election. The aim of an election is not to achieve a majority in parliament: there are no majority parties in the Netherlands and there will never  be. At present the largest party holds 41 of the 150 seats in the House of Representatives. Most of the other parties represented are considerably smaller. Therefore, coalitions of at least two – but often more – parties are inevitable. If parties don’t rule out the possibility of working together in advance, the election results will always provide a basis for several different coalitions. Each coalition contains at least one party that formed part of the previous government. Hence, the Netherlands is traditionally a country of consultation and coalitions, although the tone of such consultations is growing more strident, and the process of forming a coalition is becoming more difficult. In the Netherlands it takes a relatively long time to form a government.

Two institutions play an important part in the process of forming a government: the newly elected House of Representatives and the King. A change in the procedure in 2012 shifted the initiative, formally at least, from the King to the House of Representatives. However, the previous procedure, in which the King played an important role in initiating the process of forming a government, is more relevant to the current political situation in Spain. Therefore, this procedure is the focus of this essay. The process that is described can only be understood on the basis of Dutch constitutional developments, and cannot be copied exactly. Spain and the Netherlands differ in terms of their society and politics; historical background and parliamentary tradition; regional development and cultural variety. However, that does not mean that Dutch ways cannot provide food for thought in Spain.

2.Legislation on government formation

In 1982, an influential former minister said ‘The formation of a government is a decisive moment in our constitutional life […]. The parties review their relationships. Politics experiences a mood of feverish excitement and highly concentrated activity. All the good and many of the bad qualities of humanity come into play. The elements that make politics so beautiful but at the same time so ugly come to the fore during the formation process.’ (Marga Klompé, 1982). That is why shared rules and protocols are so important. Since each party has its own interests, it is vital that everyone plays by the same rules when it comes to sharing out power.

Nothing compulsory or enforceable is laid down about the process of forming a government. The constitution states only that ministers and state secretaries are appointed and dismissed by royal decree. This defines the King’s role. Otherwise the formation of a government is not regulated by legislation of any kind. However, the process is governed by – unwritten – constitutional rules. The most important rule is that a government may not remain in office if it has lost the confidence of a majority of the House. So the composition of the new government must ensure that it is not voted out by a majority on its first appearance before Parliament. The formation process aims to guarantee that the new government can muster a parliamentary majority. This explains the role of the House of Representatives.

The constitutional provision that the ministers (principally the prime minister), and not the King, are politically responsible for acts of government may cause problems during the formation of a government. Given the King’s initiating role, he may run the risk of becoming the subject of party political debate. At this early stage, the prime minister is often both the head of a caretaker government and the leader of a party with an interest in the new division of power. The Netherlands has tried to avoid such problems in two ways. Firstly, by appointing an informateur (as is the word in Dutch) or go-between, who can do what the
king, being neutral, cannot. Secondly, when the new prime minister appears before parliament for the first time, it is customary for him to take political responsibility for the entire formation process. Hence, the new prime minister takes political responsibility for every step that ultimately led to the creation of the new government and hence also for the part played by the King. This retrospectively fills a gap under constitutional law that cannot be addressed during the formation process.

3. Introduction of the informateur in the Dutch system

The Dutch electoral system always makes it necessary to form a coalition government after an election. Since no one party ever gains a majority, the important thing is which party emerges as the largest. Until the 1950s, the King always asked the leader of the biggest party to be the first formateur, i.e. to form a new coalition government. But during the subsequent negotiations the other parties often obstructed these formateurs to such an extent that they failed in their task. To ‘win’ an election but then ‘lose’ when attempting to form a government would spoil an electoral victory and make the winners more willing to agree to concessions. At least that is what the other parties hoped. In 1951, this practice was curbed by the introduction of the informateur, appointed by the King. An informateur is a gobetween – generally a man and on only one occasion a woman – with a certain amount of stature (even outside his own political circle), and often somewhat removed from active politics. The King would ask this informateur to explore the options and inform him which parties could usefully negotiate on the possibility of working together and what primary issues or differences should be the subject of such negotiations. The informateur’s report, which was originally revealed only to the King but in later years was published as well, made clear to everyone how the various options had been explored and why certain potential coalitions held promise or should be dropped, at least for the time being. Highlighting substantive differences helped clarify why some parties were not willing to work with each other. An informateur’s report could also make clear that a particular political party had to be involved in every possible coalition in order to achieve a majority.

4. Initiating role of the King in the process of forming a government

The King’s role was mainly to act as a neutral guide, appointing the informateurs and formateur and setting them to work with carefully formulated instructions. It was the King’s task to safeguard the traditional conventions of due diligence and the protection of minorities. At the end of the process the King would appoint the ministers and state secretaries in the new government and administer the oath of office.

In the beginning of the process of forming a government, the King’s role as initiator and guide was particularly important. The day after the election, the King would begin by consulting his permanent advisers, the presidents of the Senate and the House of Representatives and the vice-president of the Council of State. Their advice was given in their official capacity and not on behalf of the institution in question. They gave their interpretation of how the election result would affect the forming of a new coalition. The advisers’ opinions were not published but were made available to successive informateurs and formateurs. Next, the King received the leaders of all the parties newly elected to the House of Representatives, in the order of the number of seats they had won. Each was asked the following questions: What is your interpretation of the election result? What are the options for a coalition? Which of these should be explored first?Who should act as informateur and with what instructions? By asking each party leader the same questions in turn, the King could determine if potential informateurs were acceptable to other party leaders and if agreement were possible on the instructions. All this helped to foster consensus and reduced the risk that the King would be accused of making political choices. If the views of the party leaders pointed in the same direction, the King had less room for manoeuvre. But if the party leaders disagreed, the King would try to find as much common ground as possible and use this as the basis for the choice of an informateur and his instructions. Publishing the opinions of the parliamentary party leaders made it possible to check that the King had made a reasonable decision. In the interests of still greater objectivity, it became customary for the King to receive the vice-president of the Council of State again after meeting the party leaders. Only after they had reviewed the outcome of these discussions would an informateur be appointed.

These early stages in the process have been described as ‘the objectivity ritual’: every party, however large or small, was consulted and its views taken into account when drafting the instructions for the first informateur. Precise wording of the informateur’s instructions made it possible to divide the formation process into manageable phases. An informateur could go no further than his instructions allowed. Once he had carried them out, he would submit his final report to the King with an advisory opinion. On the basis of this opinion the King would draw up new instructions and once again appoint an informateur – who might be the same person – or a formateur. Forming a government was and still is a matter of proceeding in phases. Every decision taken by the king after each phase had to be traced back either to the work of an informateur, or to the opinions of the party leaders and/or the permanent advisers. If these opinions were not sufficiently aligned, the scope for the King to arbitrate was limited. In the event of diverging opinions, the King would therefore attempt to clarify the situation, for example by again consulting some or all of the party leaders or the permanent advisers, or by appointing a new informateur with a limited instruction: to clarify the specific situation.

5. Tasks of an informateur

An informateur has several different tasks. First, informateurs must protect the king from political fall-out. They are able to do so because they have more room to manoeuvre than the King. They have more freedom to analyse the political situation and consider which coalition options should be dropped, at least for the time being, and which should be explored first. Second, they can cool things down after a heated election campaign. It sometimes takes time for politicians (and their parties!) to switch from forcefully arguing about political differences before the election to seeking areas of agreement and compromise after it. A particular informateur once said that his plan was to ensure that none of the parties felt compelled to say ‘yes’ because then they would certainly say ‘no’. He then took seven weeks to investigate every possible and impossible coalition. Third, an informateur has to bring the negotiating parties to a joint conclusion that they would not be willing or able or bold enough to reach on their own.’ This imposes demands on informateurs, their methods – step by step – and their reporting. Afterwards all the negotiating parties have to be able to convince their supporters that this joint conclusion is both logical and justified. Fourth, informateurs can save a future formateur from failure by doing work that is actually part of the formateur’s remit.

Over the decades the nature of the informateur’s role changed. It was originally meant to be that of a trouble-shooter who would clarify difficult political situations or break political deadlocks. However, in addition to this role, another kind of informateur emerged: one who guided the negotiations between party leaders on the future coalition agreement. In other words, a formateur in disguise. Appointing an informateur for the negotiations on a coalition agreement minimised the risk of failure, in appearance at least. Informateurs cannot fail. Their task is to explore options and brief the king. And in that they always succeed, even if the investigation comes to a negative conclusion. Formateurs, on the other hand, are tasked with achieving a specific result: forming a government. And they might succeed or they might fail. This is why a formateur takes time to consider his assignment and does not accept it formally until agreement has been reached on the formation of the government. Making an informateur responsible de facto for the process minimises the political risk of failure for the formateur, generally the future prime minister. In practice, the formateur does not appear on the scene until all that remains is to interview candidates for ministerial posts. In other words, there are at least two kinds of informateur: those who ‘eliminate’ and those who ‘construct’. Two separate activities that must be distinguished, even in the person appointed.

All newly appointed formateurs or informateurs begin by explaining why they accepted the assignment and instructions. It is the informateur and not the king who publicly accepts responsibility. It is ‘not done’ for an informateur to say: ‘I accepted this assignment because the king asked me to.’ This public acceptance of responsibility takes place at the informateur’s first press conference, where he also explains how he will proceed. Informateurs are also personally responsible for the reports they submit to the King. They render account for the advice given in the final report and explain this at a press conference.
If invited, they explain their work and its outcome in a debate in the House of Representatives. This contributes to the statement of political accountability made by the new prime minister in the House at the very end of the formation process.

At regular points throughout the process, announcements are made, or press briefings given, about the informateur’s progress. Agreements on media relations are made during the informateur’s first meeting with the party leaders. He may, if he wishes, use a spokesperson and several (but usually two) expert advisers – always career civil servants from the Ministry of General Affairs who are seconded to the informateur/formateur for the duration of the formation process. The informateur may also approach other experts, or request information, from the various government ministries. He will mainly make use of this opportunity in the second phase of the formation process, during the negotiations on the coalition agreement.

6. The phases of forming a government in the Netherlands; the coalition agreement

Roughly speaking, the process of forming a government in the Netherlands comprises of three phases. First, the exploratory phase, in which it is determined which parliamentary parties come to the negotiating table. Up to now this has taken one to three weeks. Second, the constructive phase, during which the negotiating parties examine whether they actually want to join forces to form a government and whether they can agree on a joint policy programme that will become a coalition agreement. This is generally the longest phase, and can last from one to four months. Third, the actual formation phase, in which individuals are invited to take office in the proposed government. This phase often progresses remarkably swiftly: a week is by no means exceptional.

The most time is thus devoted to drawing up a coalition agreement that a majority of the newly-elected House supports, or at least does not openly oppose. Coalition agreements have various purposes. First, they create a basis for trust between the negotiating parties during the process. Second, they guarantee a majority in parliament for a number of years. Third, they establish what policies the government will pursue. The need for a more detailed coalition agreement increases as parties lose some of their permanent support base (and hence become more nervous about opinion polls) and the political centre ground shrinks (so that more parties are needed for a majority). This is what has happened in recent decades. However, detailed agreements have considerable disadvantages. First, a detailed coalition agreement creates close links between the government and the majority in parliament, and thus between public administration and politics. This limits the scope and legitimising
function of parliamentary debate and undermines parliament’s primary role. Second, coalition agreements increasingly contain policy intentions that would not gain majority support if they were not included in the agreement, while excluding some other measures that could count on a variable majority in the new parliament. This too undermines the legitimacy of certain measures. A third disadvantage is the constant changes caused by external influences. Arrangements included in a coalition agreement thus quickly become out of date and sometimes counterproductive. Lastly, a detailed coalition agreement forces parliamentary parties into a form of unity that not only restricts the independence which individual members of parliament are supposed to enjoy, but also prevents parties from readjusting their political position. However, a substantive reorientation may be required if the answers to fundamental questions facing a government no longer follow traditional party lines. This is now the case more and more often.

I believe that a coalition agreement should do no more than outline policies, establish a financial framework and contain specific agreements only on matters that could conceivably lead to a political crisis in the first six months of the government’s term. To date this has not happened. Every party in a coalition wants to secure as much as possible for itself in the coalition agreement. Moreover, the strength of parliamentary party discipline should not be underestimated, even aside from the coalition agreement. Nowadays, open political debate within the parties and between coalition partners is often regarded as a sign not of democratic strength but of executive weakness.

7. More power for the House of Representatives, at the expense of the role of the King

Since 1946 at least, the Dutch parliament has been gradually tightening its grip on the process of forming a government. At the same time it has drastically reduced the scope for the King to follow his own preference when appointing formateurs and informateurs (and ministers a fortiori). Several points clearly illustrate this trend. First, it has become customary for the King to consult all the party leaders in the newly-elected House of Representatives on their interpretation of the election results and what should happen on the basis of those results. Next, the opinions submitted to the King by the party leaders are now made public. Third, it is no longer the case that a formateur draws up a government policy programme more or less single-handed. Instead, the party leaders negotiate on a coalition agreement which needs the consent of all the parties that will form a parliamentary majority. They also have to agree on the political make-up of the coalition, the division of posts among the coalition parties and the choice of ministers. Moreover, each report submitted to the King by successive informateurs and formateurs is now sent to parliament, published and discussed at a press conference. If requested, informateurs and formateurs then brief the House of Representatives on their work. The increased role of parliament, however, has been accompanied by an increase in party politicisation. In recent years there has been a growing incidence of active politicans, with a direct relationship of trust with the leader of the largest party, being proposed as informateur. There is a tension between, on
the one hand, the specific dynamic of the party political process and, on the other, the role of the king (above party politics) and his task (‘to safeguard the traditional conventions of due diligence and the protections of minorities’).

By 2012, this parliamentary ‘takeover’ seemed complete, with an amendment to the Rules of Procedure of the House of Representatives. The amendment reads: ‘Immediately after taking their seats, the members of the newly elected House of Representatives meet in plenary session to deliberate on the election results, with the aim to appoint one or more informateurs or formateurs and to draw up their instructions’. With this amendment, the House of Representatives took the initiative into its own hands. Informateurs and formateurs are no longer to be appointed by the king but by the House of Representatives. However, this change also represents the demise of ‘the objectivity ritual’ that was mentioned earlier. Since the members of the newly elected House do not take their seats until eight days after the election, the amendment in fact transfers the initiative in the first, crucial phase of the formation process not to the House – which is not yet able to meet – but to the leader of the largest party elected. This is party politicisation in the guise of parliamentarisation, a very different thing.

Until 2012, the King – the head of state above party politics – received all the party leaders in turn immediately after the election. In these conversations the King discovered who had sufficient standing and support, within and beyond their own political circle, to be entrusted with the first – exploratory – phase. In 2012, however, the leader of the largest party met with the other party leaders and proposed in that meeting that an active politician, a member of his own party, be instructed to conduct the initial phase. This politicised the beginning of the formation process, possibly to the disadvantage of the smaller parties. In the past, different potential coalitions were considered or provisionally ruled out, for given reasons, in the initial phase. In 2012, however, a preliminary sorting process yielded a single coalition option from the very start. Personally, I deeply regret the disappearance of the objectivity ritual. The significance of this ritual, when the King received all the party leaders at the palace, has been gravely underestimated. For a short while after the election campaign, it visibly lifted the initial phase of the process above party politics. It created a level playing field where the same rules applied to all parties. This had a calming effect. Each party felt that it was being taken seriously. Forming a government is also a matter of political psychology. Mistakes made at the beginning of the process are difficult to remedy and can have long-lasting effects. This is something the House of Representatives did not fully take into account in its decision.

*Mr Tjeenk Willink (PvdA) was president of the Dutch Senate from 1991 to 1997. From 1997 to 2012 he was vicepresident of the Dutch Council of State. In the Dutch system the monarch is the Council’s president. Furthermore Mr. Tjeenk Willink was informateur both in 1994, 1999 and in 2010.

 

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