Purpose and Content of the Bill
The private members aim to legally establish the ban on ethnic profiling through this bill. They intend to prohibit making distinctions based on race when selecting individuals for checks in the General Administrative Law Act and the Police Act 2012. The proposal is partly motivated by a February 2023 ruling by the Court of Appeal in The Hague regarding ethnic profiling by the Royal Netherlands Marechaussee (KMar). Ethnic profiling can be defined as the use of criteria such as race, origin, or skin color by government enforcement without objective justification. In February 2023, the court ruled that the racial distinctions made by the KMar in selection decisions under the Mobile Safety Supervision (MTV) are not permitted. The private members want to codify the standard arising from this ruling into law and clarify that the standard applies to all government agencies.
Added Value
The Advisory Division endorses the importance of combating ethnic profiling by government agencies. Discrimination is prohibited under the Constitution, international treaties, and legal provisions and can be sanctioned by courts on that basis. Nevertheless, ethnic profiling unfortunately still occurs. In recent years, a societal and political debate has emerged about ethnic profiling and how it can be prevented. It is understandable that the private members want to take measures against ethnic profiling. However, the explanation accompanying the bill is insufficient to justify the added value of the bill compared to existing discrimination prohibitions. It is unlikely that the proposal will actually contribute to a more effective approach to combating ethnic profiling.
Increasing Legal Complexity
The Advisory Division also considers that the bill does not clarify but rather complicates the existing prohibitions on ethnic profiling. This is due both to the relationship of the bill to existing discrimination prohibitions and other legislation, and to the wording of the bill itself. For example, it is unclear how the proposed ban on ethnic profiling relates to the prohibition on bias. That prohibition is also included in the General Administrative Law Act and already prohibits ethnic profiling. Additionally, it is unclear how the bill relates to the discrimination prohibitions in the Constitution and treaties.
Future Perspective
The legal and societal debate on combating racism and ethnic profiling is still ongoing. Various studies are underway on additional new legislation aimed at combating discrimination by the government. It is advisable to incorporate the outcomes of these studies into decision-making on next steps, also considering that ethnic profiling is already prohibited and that the bill complicates rather than clarifies. The Advisory Division notes that practical measures can and are already being taken to improve compliance with existing anti-discrimination provisions that prohibit ethnic profiling.
Conclusion
The Advisory Division therefore advises the private members not to proceed with the bill in its current form and at this time.