Practice Regime

Two laws from the same years, with opposite lifespans. The risk-equalisation system under the Health Insurance Act (Zvw), in force since 2006, has been recalculated, adjusted and re-adopted every year since, and stayed playable for twenty years as a result. The General Income-Related Schemes Act (Awir), from 2005, contained a recovery logic that was applied for fifteen years without the judgement behind it ever returning to a table, until it became the subject of Ongekend onrecht (Unprecedented Injustice) at the end of 2020.¹ Nº 00 formulated the law that explains this difference: grammar does not wear out through time but through disuse.² This paper is about the link that prevents the disuse, the second working form of the chain: the practice regime.

Repetition is remembering

A practice regime is a recurring act in which the judgement itself is made anew, with the real possibility that the outcome is different. Every word in that description does work. Recurring: the moment is fixed and arrives of its own accord, independent of incidents. The judgement itself: why the parameter stands as it stands is weighed again, and that is something other than updating or indexing it technically. And the possibility of a different outcome: a re-confirmation that is settled before it takes place is a ritual.

This sets the regime apart from the two instruments it is confused with. Maintenance keeps the scheme technically current without touching the judgement. Evaluation looks back at the effect after the fact. The practice regime repeats the question of why, and it is precisely that repetition which keeps the knowledge of Nº 01 operative: anyone who must recalculate each year why the parameters stand as they stand cannot forget why they are there. The reserve needs a kitchen.

The formula that is wanted afresh every year

The risk-equalisation system shows what such a kitchen looks like. Every year the same cycle runs: a research programme tests the model, features are added or removed, and the whole is re-adopted, with the ministry, the implementing bodies and academia at one table.³ Today’s model therefore differs profoundly from that of 2006, and in no single year has it been unplayable, because there has been no year in which no one had to make the judgement. The arena of Nº 03 and the regime of this paper intersect here: the annual cycle is the duty to return that holds the table together.

The second working case is in the water domain, and it is the least appreciated part of that knowledge chain: the statutory recurring assessment round in which every primary flood defence is measured against the norm anew.⁴ The round looks like implementation technique and is in reality the regime that keeps the norm itself alive: anyone who must periodically determine whether a dyke complies keeps awake the question of what it must comply with, and why. That the norms could be replaced wholesale in 2017, as Nº 01 described, was in part the yield of decades of mandatory testing. The act maintained the capacity.

The judgement that slept for fifteen years

The recovery logic of the benefits had none of these properties. The choice for strict recovery dated from the design of 2004 and 2005, defensible in its context: fraud susceptibility had to be controlled, advance payments had to be recoverable. The implementing bodies applied it, the highest administrative court confirmed the line for years, and nowhere in the system was there a moment at which the judgement itself had to return to a table. No annual cycle, no duty of re-confirmation, no table with the question of whether the logic still fitted what had meanwhile become known about practice. Only in October 2019 did the case law turn, and at the end of 2020 the parliamentary interrogation committee documented what the application had wrought in the intervening years.¹

The judgement of 2004 was not a malicious choice. It was simply never repeated, and a judgement that goes fifteen years without being weighed weighs everything one day. That is the empty case of this link, and it is at the same time the answer to why this is more than administrative hygiene: the regime is the place where a system can notice its own harshness in time.

The countable substitute

The substitute for the practice regime is evaluation after the fact, and it is present in abundance. Statutory evaluation clauses prescribe that the law be evaluated after five years. Spending reviews work through the budget article by article. Post-introduction tests look shortly after the start. All of it countable in delivered reports, and the Netherlands Court of Audit has repeatedly established how little this edifice says about what works.⁵

The difference with the regime is categorical. The evaluation looks back at effect, is usually outsourced to an external agency — which thereby again functions as memory, as Nº 01 described — and obliges nothing: it ends in a report and a response. The judgement itself does not return to a table, and the competent table is not present. A system full of evaluations can therefore let every judgement sleep and at the same time demonstrate that it reflects. Here too: the instrument is not wrong. Substitution begins where the delivered report takes the place of the repeated judgement.

Building the regime

The action perspective for this link is the most artisanal of the series, because a regime is a matter of the agenda.

The first move: give core parameters a sunset clause with a duty of re-confirmation. The scheme lapses on a fixed date, unless the rationale is re-adopted by the competent body. That turns reconsideration from a non-committal possibility into an enforceable act, and it forces precisely the conversation that failed to happen for fifteen years with the benefits.

The second move: the annual question. Choose per organisation the three parameters on which everything turns — the rate table, the distribution key, the access threshold — and put on the agenda, each year at a fixed moment, the question of why they stand as they stand, briefly, with the competent table present and with the possibility of change. An afternoon a year. The equalisation cycle proves that this can be done on the scale of an entire system; on the scale of a municipality or a joint arrangement it is small enough to start tomorrow.

The third move: tie every evaluation to a decision. Confirm, amend or terminate, with a date and by the competent body. This belatedly gives the evaluation the legal effect that makes it a regime, and connects this link to the room for loss of Nº 04.

The test: when was the core judgement of your most important scheme last made anew, with the real possibility that the outcome was different? If the answer coincides with the date of introduction, the judgement is asleep, and sleeping judgements wake at the worst conceivable moment.

The evaluation tells you how it went. The practice regime determines whether anyone can still do it.

Footnotes

1. Algemene wet inkomensafhankelijke regelingen (General Income-Related Schemes Act), 2005; reversal in the case law of the Afdeling bestuursrechtspraak (the Administrative Jurisdiction Division of the Council of State), October 2019; Parlementaire ondervragingscommissie Kinderopvangtoeslag (Parliamentary Interrogation Committee on the Childcare Benefit), Ongekend onrecht (Unprecedented Injustice), December 2020. ↩ ↩²

2. Jacob Huibers, Orphaned Design (Nº 00), Statecraft, 2026, statecraft.nl. ↩

3. The annual research cycle around the risk-equalisation model, overseen by the Werkgroep Ontwikkeling Risicoverevening (Working Group on the Development of Risk Equalisation), with the participation of VWS (the Ministry of Health, Welfare and Sport), Zorginstituut Nederland (the National Health Care Institute), health insurers and external researchers; see also Nº 00. ↩

4. The statutory recurring assessment of the primary flood defences, since the Wet op de waterkering (Flood Defences Act) (1996) as a periodic testing round, now the national assessment round under the Waterwet (Water Act); see also Nº 01. ↩

5. Among others, Algemene Rekenkamer (the Netherlands Court of Audit), Inzicht in publiek geld (Insight into Public Money) (2016) and Inzicht in publiek geld, deel 2 (Insight into Public Money, part 2) (2019), on the limited significance of the evaluation system. ↩