The revolt of the judges
Judges in the Netherlands are rebelling against the endless series of changes in the organization of the judiciary. What is occurring is more than a simple merger; the organization has become too dominant in the judges’ work.
Judges do substantive work. They give judgments in other people’s disputes. To be able to do that work well they must be properly educated and trained. High demands are imposed on judges. Judges’ work is very diverse. The work of a family-court judge is usually content-wise less difficult than the work of commercial court judge. But where the commercial court judge can immerse himself in a difficult legal puzzle, the family-court judge must be able to deal with strong emotions and accommodate them during a hearing. With the internationalization and the Europeanization of the law, the judicial tasks have become more difficult substantively. This is the case in all legal areas. The Council for the Judiciary was installed to lead the necessary changes within the judges’ work in the right direction. It appears that now the Ministry of Security and Justice and the Council for the Judiciary have overplayed their hand in relation to the judges.
Courts are financed based on output. The more judgements, the more money they receive for the following year. To prevent that court management only goes for more money, a quality system has also been introduced. The quality system also concerns the substantive performance of judges. The Council for the Judiciary and the court management are responsible for the quality of the judgements and for the uniform application of the law by judges. The system is formed in such a way that the results of the quality measurements should play a role in the budget negotiations between the Council for the Judiciary and the Ministry of Security and Justice. But since 2007 I have never seen that the substantive quality of the judiciary has played a role in the budget negotiations. If we look at the visitation report for the judiciary of 2014, than there is still a lot to do at the organizational level. Judges still feel rushed by the financing system to produce as much as possible and therefore do not spend enough time on training and education. Additionally, they are not satisfied with their own training institute. One barely gets to increasing substantive quality and commercial matters are, on average, not decided on time.
The Council for the Judiciary does aim for improving the content quality. But it is extremely difficult to actually change the behavior of judges. They are autonomous and professionals, in cases they have to deliberate and decide by themselves. The reform of the judicial map, first with the discontinuation of the subdistrict courts and then with the merging of courts, shows that the choice is mostly made for the improvement of logistics and efficiency. To this end structural changes are carried out by the legislature in consultation with the Council for the Judiciary, which are easier to implement than behavioral changes in judges. The Quality and Innovation operation should lead to a profound degree of automation of the bringing before the judge and the hearing of cases. Technically speaking, the location of the courts will no longer matter soon. It has already been announced that this operation will be accompanied by a loss of 40% of jobs in the administration and support services of the judiciary.
What position the judges have in this story is not so clear, even though the Council for the Judiciary recently said that they’d rather invest in people, not in buildings. But in the context of all the changes that message is not received. The judiciary is primarily depicted by the Council for the Judiciary and by the legislature. The judiciary is controlled and managed as if all of the Netherlands consists of one court and one court of appeal. The court managers are only branch managers. This is reflected in the name and logo for the judiciary: “De Rechtspraak”(The Judiciary), and that also is reflected in the design of the website rechtspraak.nl. It is very functional for different audiences, from ordinary citizens to academic legal scholars; from school student to lawyer. The information, a few registries, the reference to rules of procedure and management regulations, a database with court decisions: it’s all there. The name “de rechtspraak” and the uniform website above all symbolize that it should not matter where a judgment is given and that it should also not matter who is giving the judgement. It is not important who your judge is. To speak as Montesquieu: ‘the judges are, in one way or another, nothing’. This depersonalization is reflected in the requirements of legal certainty and legal equality, in judicial decisions it is important that they are done consistently.
In that context the centralized control of the development of the judges’ work seems very important. But the ideology of the organization is more straightforward than its practice. Uniform application of the law is extremely difficult to realize, potentially even more difficult than timely decisions. The timely decisions can be realized mostly by logistical improvements by the judge in the procedure. But that the enhancement of the content quality of judges can be improved by centralized control is an illusion. In no European country is the central organization so on top of the content quality of judges as in the Netherlands.
With all the concern about the performance of judges under production pressure, it is much better to leave the concern about the content of the judges’ work to the judges themselves and to make them explicitly responsible for that. This fits with recognizing judges as autonomous professionals and relaxing the centralization. Recognize that output financing in the judiciary is a bad idea, switch to inflow financing. Court organizations in the Netherlands can function very autonomously whereby substantive supervision is unnecessary; limit this to efficiency and timeliness. Remove the consistent application of the law as a responsibility of the Council for the Judiciary and of the court management from the law. Let them organize their own quality control and mind their own business in respect to the content. Facilitate this by giving judges the time to do so. Lastly: get rid of the intention to further merge the court organizations. Create space to calmly and properly implement the changes of the Quality and Innovation program in the coming years.