COMMUNICATING INTELLIGENCE WITH THE CITIZENRY: THE EXPERIENCE OF THE NETHERLANDS REFERENDUM ON THE ACT ON INTELLIGENCE AND SECURITY SERVICE
COMMUNICATING INTELLIGENCE WITH THE CITIZENRY: THE EXPERIENCE OF THE NETHERLANDS REFERENDUM ON THE ACT ON INTELLIGENCE AND SECURITY SERVICE

Summary/Abstract: In The Netherlands on March 21st, 2018 a non-binding referendum was held on the new act on the intelligence and security services. In many respects this was a unique moment in the (Dutch) history of intelligence. The Netherlands has no long lasting history of referenda and probably never will. In 2016 it held a referendum on the EU association agreement. It led to a clear no-vote and although the referendum was not binding, it was a shock to the government, which had to bend over backwards to explain to its European partners how it had gotten itself into this position and to legitimize to the voters that it still signed the agreement. As far as the government was concerned this was a -once-and-never-again experience. However, just before it managed to close down the possibility of national referenda, enough signatures were collected to have a non-binding vote on the Dutch act on the intelligence and security services. The outcome of the referendum surprised friend and foe: 49.5 percent of the voters rejected the act against 46.5 yes-voters. This paper discusses the issues that were involved and the way the government treated the referendum. The government tried to follow two objectives simultaneously when it drafted the act. First, it wanted a law that would be independent from technological developments, precisely because a former one had restricted the services’ room for manoeuver especially due to technological considerations. Second, it wanted to make a law that would be ECRM-proof. This led to a balancing act and a very complicated bill. Opponents stated that past practices and the vague wordings of the bill were reasons for distrust. Champions of the bill said that it combined the enhancement of the services’ powers with a broadening of the oversight mechanisms. They blamed the opponents because of factual misunderstanding. What they did not take into account enough was that it was not so much a matter of good intentions or practice but an issue of images. In a belated effort to save the act unscathed representatives of the services appeared more often in the media in the three months before the referendum than in the preceding half century. This contributed to the beginning of a serious intelligence debate in The Netherlands. The changes the government promised after the referendum were not inserted into the law itself and were considered to be only cosmetic by opponents. The law entered into force on May 1st, 2018 as scheduled. At the time of writing both summary and substantive proceedings against the law, initiated by both humanitarian and privacy organizations and professional associations of lawyers and journalists, are pending.

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