2.2 Current policy and policy reinforcements – General
Intersectional approach
Discrimination and racism can only be effectively tackled if an intersectional approach is applied. Discrimination and racism manifest themselves at various times and in various ways, in which respect exclusion and prejudicial treatment based on various grounds – such as origin, color, gender, class, sexuality, religion and disability – merge and may result in specific types of discrimination and exclusion in society. A person may, for example, be excluded because they are black and Muslim or black and queer, or a Muslim woman may be treated with contempt in the streets because she wears a headscarf on account of her religion and gender.
Partly in response to the Black Manifesto and the Manifesto against Islamophobia, actions have been initiated on the theme of intersectionality. Aiming to explore options for the parties, including the national government, to work on an ‘intersectional approach’ for tackling discrimination and racism, the Ministry of Social Affairs and Employment has instructed that knowledge tables be organized on the issue with scientists, representatives, experts by experience and other experts from different communities and representatives from the antidiscrimination and antiracism fields of work. The results of these knowledge tables indicate that the perspective for action on intersectionality should be expanded.
Racism
It would be a good thing for the Netherlands to more actively participate in celebrating March 21, the day marked by the United Nations as ‘International Day for the Elimination of Racial Discrimination’. On March 21, in countries all over the world people remember the injustice resulting from discrimination. The NCDR will actively take the lead by annually organizing a series of activities to celebrate this day, whenever possible in collaboration with all Antidiscrimination Agencies.
The Government intends to investigate the consequences of re-assessing the term ‘race’ in the Constitution. The Minister of the Interior and Kingdom Relations commissioned the Netherlands Institute for Human Rights to advise on the legal definition of the term ‘racism’. This advice was shared with the Dutch Parliament in early July. i In response to this advice, in-depth discussions will be held with the Institute and various parties on the terms ‘race’ and ‘racism’. This is how the Government implements the recommendations issued by the UN Committee on the Elimination of Racial Discrimination on the topic. This intention follows up on signals and stories the NCDR has heard in society. The NCDR supports this undertaking because the word ‘race’ is highly charged for many Dutch people. The term ‘race’ in Article 1 of the Constitution is legally defined as a collection of notions such as color and ethnicity. Although in legal terms it does not refer to the term ‘race’ as a ‘social construct’, it does remind us of periods in history and situations in which ‘race’ was used to distinguish between people and justify unequal treatment.
History of slavery
At an interdepartmental level, several initiatives are being developed – such as remembrance year 2023 and the creation of a National Museum of Slavery – to increase knowledge about and raise awareness of the history of slavery and the colonial past, as well as their continued effects and the consequences they have for the social position and inclusion of people of African, Afro-Surinamese and Afro-Caribbean origin. In its final report Ketenen van het verleden (‘Chains of the Past’), the Advisory Board of the Dialogue Group on the History of Slavery states that acknowledgement is an important step for the Netherlands as a whole and indicates that, on the one hand, acknowledgement provides satisfaction to those who suffered from slavery and, on the other hand, promotes a critical view of Dutch history in a broader sense. The NCDR fully endorses this. During introductory meetings and town hall sessions, the NCDR spoke with many people and discovered how strongly they feel about acknowledgement. This is why remembrance year 2023 is of paramount importance to them.
Remembrance year 2023 provides the Dutch government with an important opportunity to mark the country’s awareness of mistakes made in the past and of the harmful consequences of the system of slavery and the commercial trade in enslaved people. Although the focus will be on the history of transatlantic slavery, the remembrance year will also allow all communities to commemorate the history of slavery and the subsequent period of indentured servitude. These communities include the original inhabitants of Suriname and the islands, who were the first to be enslaved, the Chinese community brought to Suriname to perform indentured labor before slavery was abolished in 1858, and the Indo-Surinamese and Javanese communities that arrived in Suriname from 1873 and 1890 onwards, respectively. These groups, too, are part of our shared past. The Dutch government envisages a year filled with bonding and bridging activities, where there is time to commemorate and to celebrate, and that permanently increases knowledge about and awareness of the history of slavery and its effects today.
During introductory meetings and town hall sessions, the NCDR has heard many people say they expect the Dutch government to offer a formal apology, partly inspired by the example set by local authorities and the private sector as stated above.
The Government is willing to enable descendants of enslaved people to change their name free of charge.
In consultation with the parties involved and considering the results of an academic study and the challenges associated with implementation, the Government will decide in late 2022 how this will be achieved.
The history of slavery is still underappreciated in our society, even though there is so much to say. This past has marked people for life. Although the annual Slavery Remembrance Day held on July 1 in the Oosterpark in Amsterdam already has national aspects (including a speech by a government representative) and has received structural national government funding since 2019, the NCDR nevertheless calls for a national day of celebration and commemoration to mark the abolition of slavery in the presence of the head of state. Such a decision would be of huge importance to the persons affected. It should be a national holiday: in the NCDR’s opinion, starting in 2023 the day should be a national holiday once every five years.
Dutch streets also reflect a limited or one-sidedly white perspective on the history of slavery. Street names and statues of people who played an active role in this past are an integral part of our public space, often without any explanation. The NCDR calls for the provision of information about the roles these people have played in the history of slavery, for example by affixing a QR code to the relevant statue or street name sign, to increase awareness of, and access to, this part of the nation’s history. This would follow on from the steps the municipal authorities of Hoorn, Rotterdam and other towns have taken in respect of statues and monuments.
Institutional discrimination and ethnic profiling
In the coalition agreement, the Government states that it seeks to fight institutional racism. The acknowledgement in the coalition agreement of the existence of deeply rooted forms of racism and discrimination is a major step, and the Government indicates that public-sector organizations and implementing organizations should set an example here. In May, the State Secretary for Finance acknowledged that institutional racism had occurred within the Tax and Customs Administration, including the Directorate-General for Allowances.
The Government defines ‘ethnic profiling’ and ‘institutional racism’ in accordance with the definitions provided by the Netherlands Institute for Human Rights. In December 2021, the Institute drafted both a human-rights review framework for ethnic profiling and a vision document on institutional racism. i
Seeking to raise awareness and ensure that ethnic profiling and institutional racism are eliminated, the Minister of the Interior and Kingdom Relations will team up with the Netherlands Institute for Human Rights for the government-wide roll-out of the review framework ‘Discrimination through Risk Profiling’. Several activities have been developed to achieve this, such as a working group consisting of representatives of implementing organizations who will convert the review framework into a workable instrument and webinars on how to apply the framework. Also, a handbook covering the constitutional review of new laws and regulations has been prepared and an implementation review has been developed, and training courses will be set up for lawyers to enhance their knowledge about discrimination. The interdepartmental network of complaints officers also considers the National Ombudsman’s recommendations contained in the report Verkleurde beelden (‘Colored Pictures’) on how to handle ethnic profiling complaints, and the State Commission against Discrimination and Racism will conduct a broad audit of the government to identify cases of discrimination and ethnic profiling in accordance with the motion submitted by Azarkan et al. i More specifically, in implementation of the motion submitted by Belhaj et al., i the State Commission will advise the government about the question whether it is possible and desirable to introduce a prohibition for government agencies to use ethnicity as a criterion when combating fraud and, in implementation of the motion submitted by Mutluer et al., i about the possibility to make a distinction based on race and nationality in risk profiles only where this protects or supports people.
The Netherlands Institute for Human Rights states that ethnic profiling may be defined as the use of selection criteria such as race, color, language, religion, nationality or national or ethnic origin by government agencies when exercising their supervisory, enforcement and investigative powers without these agencies being able to provide any objective and reasonable justification for this. This may be avoided if these agencies use a risk profile, i.e. a selection criterion or a collection of several selection criteria that is used to estimate a particular risk of standards being violated and to make a selection decision. Such a risk profile may take the form of an algorithm.
Discrimination – within the meaning of Article 1 of the Constitution – resulting from the use of risk models must be avoided at all times. The Government is not in favor of completely terminating the authorities’ use of risk models, as the impact on all types of services, supervision, enforcement and other government tasks will be too substantial. Instead, the Government assesses legitimacy (whether the use of such models is permitted under the applicable laws and regulations) and improper use (whether objective justification exists in addition to a legal basis). Any unlawful and/or improper use of these risk models is terminated and all resulting polluted data is deleted.
Under the coordination of the Ministry of the Interior and Kingdom Relations, the departments and implementing agencies are currently investigating any unlawful or improper use of origin-related indicators in risk models in their respective policy areas. The final report is due to be published no later than the end of 2022. i
Additional instruments have been developed for personal data processing based on algorithms to guarantee that the algorithms are designed and used in a responsible way. Utrecht University, for example, has developed the Fundamental Rights and Algorithms Impact Assessment, i an instrument that can be used before an algorithmic application is created, and Tilburg University has drafted the handbook ‘Non-discrimination by design’, i an instrument that can be used to create an algorithmic application.
Finally, the Ministry of Justice and Security has prepared “Guidelines for Algorithm Application by Governments and public education on data analyses”. i In line with the Bouchallikh-Dekker-Abdulaziz motion, the Government has opted to impose an obligation to use the Fundamental Rights and Algorithms Impact Assessment when any party within the national government develops a high-risk algorithmic application.
These instruments supplement the Integrated Impact Assessment Framework (Integraal Afwegingskader; IAK) and the Data Protection Impact Assessment (DPIA). As algorithms may have the effect of promoting inequality even where this was not intended or anticipated, in addition to preventive instruments regular studies should also be conducted of the effects of any algorithms put to use. A survey will be conducted to find out to what extent the relevant public services and local authorities are familiar with the ‘Non-discrimination by design’ handbook and to what extent its recommendations are being implemented. The Ministry of the Interior and Kingdom Relations has collected all available instruments in the Data-Driven Work Toolbox and the Ethically Responsible Innovation Toolbox. i
In the spring of 2021 the Ministry of Education, Culture and Science received the exploratory study identifying stakeholders and potential interventions in the areas of artificial intelligence (AI), gender and the labor market, which also lists interventions at the macro, meso and micro levels. The Ministry works at the meso level, partly by subsidizing the conference held on this topic on May 18, 2022, by continuing the dialogue about facilitating awareness and through meetings to be held next autumn. The Ministry has also commissioned an exploratory study of potential AI interventions called ‘AI and LGBTIQ+ emancipation’. The corresponding report is expected to be issued this summer and will form the basis for the Minister’s decision on follow-up action to be taken on this specific theme. Finally, the Ministry of Education, Culture and Science provides expertise on gender, gender diversity and sexual diversity to various bodies that are preparing an overall AI and non-discrimination policy, for example by giving input on the non-discrimination handbook of the Ministry of the Interior and Kingdom Relations.
The Government minimizes the use of risk profiles comprising specific personal characteristics. Public and private organizations that use datasets and algorithms should have them regularly tested for potential discriminatory effects and inclusivity. An algorithm watchdog will be established as quickly as possible to monitor transparency, discrimination and arbitrariness.
Local policies
Municipal authorities have an important role to play in tackling discrimination. Being the local government organization, a municipal authority knows best what is going on locally. The Government encourages municipal authorities to develop antidiscrimination policy and recommends that they develop separate policies and create links with existing policies. The policies must be visible to and noticeable for citizens. This holds especially true when few reports of discrimination are received because, all too often, instances of discrimination are not reported.
This requires first of all that municipal authorities are aware of the current status of local antidiscrimination policy. The Inclusion & Community Platform (Kennisplatform inclusief samenleven; KIS) has initiated a study to assess how municipal authorities handle this issue.
Seeking to support municipal authorities in developing policy, the national government has drafted several guidelines providing specific knowledge and a perspective for action. The Minister of the Interior and Kingdom Relations alerts municipal authorities to the updated ‘Handbook on Antidiscrimination Policy for Municipal Authorities’ and the handbook ‘No Room for Discrimination’, stressing the importance of stepping up the efforts made to tackle discrimination. The Ministry intends to collate this information on a single platform, a knowledge portal that supports municipal authorities in fighting discrimination. The Ministry of the Interior and Kingdom Relations will also offer master classes to municipal authorities and will put local policy in the spotlight on a national day to be organized for all municipal authorities, where bottlenecks will be addressed that emerge from KIS’s ongoing study of local antidiscrimination policy. Every municipal authority should have an explicit antidiscrimination policy in place.
As part of the process of strengthening local policy, the national government has developed a few guidelines. All municipal authorities will be advised of these guidelines, which contain good practices for local antidiscrimination policy. Municipal authorities are currently also asked to provide information about the status of their local antidiscrimination policy in two studies: one by the Inclusion & Community Platform and one by the Ministry of the Interior and Kingdom Relations. The latter study entails that municipal authorities whose local antidiscrimination agency cannot be found on their website are called by national government representatives to discuss the situation.
The aforementioned guideline includes numerous examples of local efforts, such as drafting a framework policy document or a long-term agenda, embedding the approach in the coalition agreement or earmarking funds in the budget. An obligation for the Municipal Executive to annually report to the municipal council on the discrimination policy pursued will also contribute to further securing policy implementation, in the NCDR’s opinion. Having said that, a precondition for tackling discrimination at a highly local level is a strong antidiscrimination agency that is involved in the plans as a full-fledged partner.
The Municipal Antidiscrimination Agencies Act stipulates that municipal authorities must guarantee access to an antidiscrimination agency. Such an agency must be present in every municipality and is the local discrimination expert. Antidiscrimination agencies act as the linchpin between municipal authorities, the criminal justice system and other bodies.
If they are to properly fulfil this role in local approaches, securing strong antidiscrimination agencies having sufficient resources and expertise at their disposal and being easy to find and accessible for citizens is paramount.
The tasks assigned to antidiscrimination agencies are another aspect under consideration. The Municipal Antidiscrimination Agencies Act states that an antidiscrimination agency is charged with two statutory tasks, i.e. (1) independently assisting people in the processing of their discrimination complaints, and (2) registering complaints. When the tasks are to be potentially extended, a role in prevention or policy advice will be considered. The relationship between an antidiscrimination agency and other organizations contributing to the local approach, such as municipal authorities, the Netherlands Institute for Human Rights, the police and the Public Prosecution Service, will also have to be reassessed. The Ministry of the Interior and Kingdom Relations regards the antidiscrimination agency as the linchpin in this regard. One of the questions to be answered is: how can an antidiscrimination agency play a relevant role in more places in the chain approach, for instance in the ZSM approach? i In addition to the study conducted in response to the Belhaj motion, the Ministry of Justice has commissioned a project identifying the entire chain process and the roles with the aim of improving the process. Another study currently ongoing on the instructions of the Ministry of the Interior and Kingdom Relations focuses on the question how to structure the reporting process so as to foster citizens’ trust in the process and ensure that reports have clear added value for those making the reports. As soon as the study is completed in the autumn, the Ministry will set to work on the findings together with all parties and will organize a conference for all parties involved in the local approach and reports.
The antidiscrimination agencies should be strengthened. The Municipal Antidiscrimination Agencies Act charges antidiscrimination agencies with the tasks of registering complaints and supporting complainants. The antidiscrimination agencies should also be given a more explicit and preventive task in tackling discrimination. The Ministry of the Interior and Kingdom Relations will be contacting the Association of Netherlands Municipalities (Vereniging Nederlandse Gemeenten; VNG) and antidiscrimination agencies to discuss an approach.
See the letter from the Minister of the Interior and Kingdom Relations of July 7, 2022 on the legal definition of ‘racism’.
A description of institutional racism is provided in the letter from the State Secretary for Finance – Tax Affairs and the Tax Administration of May 30, 2022 on Further Requests regarding the Fraud Identification System.
Parliamentary Documents II 2019-2020, 35 510, no. 33.
Parliamentary Documents II 2020-2021, 30 950, no. 237.
Parliamentary Documents II 2021-2022, 30 950, no. 293.
In a motion that MP Marijnissen (SP party) et al. submitted on January 19, 2021, the government was asked to come up with a proposal for removing polluted data, risk models and the nationality criterion within all government institutions. The motion was submitted in response to the risk models and discriminatory selection rules emerging from the Ongekend onrecht report drawn up by the Childcare Allowance Parliamentary Inquiry Committee.
[1] Fundamental Rights and Algorithms Impact Assessment (FRAIA) | Report | Rijksoverheid.nl
[1] https://www.rijksoverheid.nl/documenten/rapporten/2021/06/10/handreiking-non-discriminatie-by-design
[1] https://www.rijksoverheid.nl/documenten/richtlijnen/2021/09/24/richtlijnen-voor-het-toepassen-van-algoritmen-door-overheden-en-publieksvoorlichting-over-data-analyses
https://www.digitaleoverheid.nl/overzicht-van-alle-onderwerpen/nieuwe-technologieen-data-en-ethiek/het-led/toolbox/ and https://www.digitaleoverheid.nl/overzicht-van-alle-onderwerpen/nieuwe-technologieen-data-en-ethiek/publieke-waarden/toolbox-voor-ethisch-verantwoorde-innovatie/
The ZSM approach is an approach in the criminal justice system. ZSM stands for ‘Zorgvuldig Snel Maatwerk’ (‘Careful, Fast and Customized’). In ZSM, the approach to every case is tailored to the perpetrator, the victim and society to do justice to their interests. More information about the ZSM approach: ZSM-aanpak bij veelvoorkomende criminaliteit | Strafrechtketen