Government must structurally fight and prevent discrimination

Discrimination and racism are not incidents, but structural problems. Everyone in the Netherlands directly or indirectly deals with discrimination and racism. The government discriminates too. In its final report Discriminatie doorbreken. Naar een overheid die discriminatie bestrijdt en voorkomt (English: Breaking down discrimination. Towards a government which fights and prevents discrimination), the Dutch State Commission against Discrimination and Racism has presented an agenda for action to tackle discrimination by the government in the European and Caribbean Netherlands. The commission shines a light on causes of structural discrimination by the government and speaks out in favour of a fundamental change of course, for which it suggests concrete actions. So the government will not only quit discriminating, but prevent it and actively contribute to equity and equality.

Many people in the Netherlands directly or indirectly deal with discrimination based on grounds covered under Article 1 of the Constitution of the Netherlands, such as religion, sex, disability or sexual orientation. Discrimination and racism are not incidents, but structural problems which are rooted deeply in institutions, methods and presumptions, and often remain invisible, Commission Chair Joyce Sylvester says. The government discriminates too. The final report of the State Commission against Discrimination and Racism makes it clear why the current approach to discrimination falls short. Although discrimination in the Netherlands is illegal based on Article 1 of the Constitution of the Netherlands, it continues to be a persistent problem in practice. Discrimination and racism occur on the job market, in healthcare, on the housing market, in education and also within the government itself.

The approach to discrimination and racism requires the prevention of unequal treatment, moral governance leadership, courage and guidance among civil servants AND the active involvement of the broad diversity of residents.

Discrimination damages human lives and costs society billions, as the Dutch child care benefits scandal has shown. Breaking down discrimination isn't a one-time assignment. It's a permanent responsibility for us all. The approach to discrimination and racism in the European and Caribbean Netherlands requires the prevention of unequal treatment, moral governance leadership, courage and guidance among civil servants AND the active involvement of the broad diversity of residents our country has in policy and legislation. This is why in its final report, the State Commission presents an agenda with ten concrete actions to structurally fight and prevent discrimination and racism in the Netherlands, says Joyce Sylvester, who in addition to being Chair of the State Commission is also an Academic Fellow at the Utrecht University Faculty of Law, Economics and Governance.

Coherent explanations and directions for solutions

Despite the seriousness of the problem, the progress in fighting the more deeply embedded forms of discrimination and racism by the government remains falling behind. The State Commission detects three coherent explanations for this:
 

• Laws and policies are often developed from a limited perspective. Governmental organisations still insufficiently form a representative reflection of the population. Besides this, people who are directly affected by discrimination are insufficiently involved on a structural level.
   
• The handling of discrimination and racism is reactive and focused on incidents. 
  The system of legal protection and oversight is predominantly focused on action afterwards, not prevention beforehand. Because monitoring is lacking, structural patterns of discrimination and their impacts remain unnoticed. On top of that, this reactive approach makes it difficult to anticipate on new forms of discrimination in a changing society.
   
• Government and politics remain on the sidelines
  Politicians and members of government regularly take a reserved attitude or deny when discrimination and racism are pointed out. This unresponsiveness is not limited to words; the government avoids binding choices and structural guidance in terms of action too.

For a coherent approach to this, the State Commission presents an action plan with five directions for solutions and ten specific actions. These are focused on the enhancement of social involvement, knowledge development, governance, laws and oversight. The ball is primarily in the government's court, but an important role is reserved for society too.
 

• Start by accounting for a many-voiced approach
• Organise structural monitoring and insight
• Take control and prevent discrimination
• Stop profiling and renew the non-discrimination legislation
• Contribute to equity and equality

The ten specific actions which come forth from this are interconnected: knowledge feeds policy, prevention supports involvement and polyphony is the connecting thread.

Concrete proposals and instruments

These concrete proposals focus on, among other things, better monitoring of discrimination, via the application of the Discrimination Test, ending data-driven profiling, the enhancing of legislation and oversight, and the active involvement of residents in policy and legislation. The Commission also expressly asks for attention to equity and equality in the Caribbean Netherlands.

Discrimination Test

The State Commission provides the government and society with concrete instruments to work with. With the Discrimination Test the State Commission developed, governmental organisations can track down and tackle risks of discrimination in policies and provisions of services pre-emptively.

Besides this, the Commission has suggested to gradually implement a legal Public Sector Equality Duty (PSED), which makes it mandatory for governmental institutions to include equal treatment in policy and implementation from the start, based on the examples set in the United Kingdom and Ireland, where such a duty has already been around for longer. Application of the Discrimination Test can be further secured along that path. This way, the government can put equal treatment into practice more powerfully.

End to the State Commission

The State Commission emphasizes that fighting discrimination and racism is not just a task for the government, but that the government, institutions AND society need to build on an equal society together. Joyce Sylvester says: Breaking down discrimination isn't a one-time assignment. It's a permanent responsibility for us all. According to the Commission, the fight against discrimination and racism is a matter of perseverance.

Breaking down discrimination requires courage, moral leadership, measures, resources, a many-voiced approach and continuous commitment

With Discriminatie doorbreken. Naar een overheid die discriminatie bestrijdt en voorkomt, the State Commission publishes its last report. The State Commission was founded in 2022 at the request of the Dutch House of Representatives and will end its activities this summer because the agreed term of four years will then expire.

In order to ensure that the desired course change is actually implemented, the State Commission calls upon the Dutch Cabinet to found a Guarding and Monitoring Commission to boost and safeguard the implementation of the actions recommended by the State Commission.

Academic contribution from Utrecht University

Besides Chair Joyce Sylvester, the State Commission included, but was not limited to, Mirko Noordegraaf (Vice-Chair) and Alexandra Timmer. Emma Pullen and Student Assistants Myrthe Zwiers and Valentijn Dankers worked on a partial recommendation about the Caribbean Netherlands. Multiple students of the Schools of Governance and Law had internships at the State Commission, to benefit their thesis tracks. With this engagement, Utrecht University made a prominent contribution to the academic support of the work of the Commission.

It's honourable and valuable to be active in this State Commission from governance science, says Mirko Noordegraaf, Vice-Chair and a Professor of Public Management and Head of Department at the School of Governance (USG). In between politics, policy, society and knowledge, academics can make an important contribution to the figuring out and tackling of the probing issue of discrimination. Especially the realisation that the government makes all kinds of improper differentiations, often implicitly or unconsciously, and then do something about that, that's impactful.

Alexandra Timmer, Associate Professor of Human Rights Law (School of Law) adds to this: I found it very inspiring to be a member of the State Commission, because it provided a unique chance to connect academia, practice and politics with each other. We've entered into conversations with very many people.

She also indicates that the State Commission with its report on the Public Sector Equality Duty (PSED) has carried out innovative research and has made concrete recommendations to better prevent discrimination by the government. Together with the publication Samen voor gelijkheid. Een toekomstvisie op het non-discriminatierecht, developed with academics and societal partners, this forms a powerful plea for a fundamental recontemplation on the right to non-discrimination – something I'm proud of.

More information

For more infromation, please read the full report Discriminatie doorbreken. Naar een overheid die discriminatie bestrijdt en voorkomt (in Dutch).

Or contact: Renée Schut-Verkuijlen, spokeswoman of the State Commission against Discrimination and Racism via renee.schut@minbzk.nl or +31 6 18 67 22 07.