The Empty Law

On 9 December 2025 the House of Representatives voted on the first curriculum act in nine years of revision work. Nº 04 of this series described what led up to it: three programme names, hundreds of people involved, and nothing that could be killed off. Now look at what was actually put to the vote that day. The Wet herziening wettelijke grondslagen kerndoelen (Act revising the statutory bases for attainment targets) regulates, as its name honestly admits, the bases. The attainment targets themselves — the content that teachers, parents and publishers had waited nine years for — are to be laid down by order in council (algemene maatregel van bestuur, AMvB).¹ After nine years, parliament was given something to reject, and it was the shell.

This is not an incident and not an education matter. It is the dominant form of contemporary legislation, and it deserves a place of its own alongside the chain this series has described.

The law as shell

Wim Voermans has been pointing out for years that the law in the formal sense is increasingly a framework that pushes the content downwards: by far the greater part of generally binding rules no longer passes through parliament, but is laid down by order in council or ministerial regulation.² The Environment and Planning Act is the extreme case of the genre. A single act, celebrated as the largest legislative operation since the revision of the Constitution, and the norms that citizens and businesses actually have to deal with sit in four orders beneath it: the Besluit activiteiten leefomgeving, the Besluit bouwwerken leefomgeving, the Besluit kwaliteit leefomgeving and the Omgevingsbesluit (the four implementing decrees on activities, buildings, environmental quality and planning procedure). Anyone who wants to know what is permitted does not read an act.

The three types of law that Nº 00 encountered after the turn of the century — bundling, transfer and obligation — share this basic form.³ The bundling law moves the norms into decrees, the transfer law into implementation, the obligation law lays a duty over existing material without regulating that material. Three routes, one movement: the substantive judgement leaves the level at which parliament votes. The Aanwijzingen voor de regelgeving (the Directives for Regulation) still contain, all the while, directive 2.19, and it is headed Primacy of the Legislator.⁴ The form has outlived the rationale; the heading is still there, the practice has slipped out beneath it.

The loop

Why this is more than a constitutional blemish can be put in the motto of this series: grammar does not wear out through time but through disuse.⁵ That holds for the legislator too. A parliament that only ever lays down frameworks no longer makes the substantive judgement, and whoever no longer makes a judgement loses the capacity to make it. Members who have never voted on a norm cannot amend one either. Parliamentary groups without legislative-drafting support can no longer tell a delegating provision from a blank cheque. And a legislator that has lost the competence has, at the next act, one more reason to delegate: it can be done faster there, more expertly there, without debate there. The empty law feeds the loss of competence, and the loss of competence feeds the empty law. The loop is closed, and it has been turning for decades.

The same applies on the drafting side. A department that writes acts consisting mainly of bases practises legislative craft at the level of bases and loses it at the level of norms. The production side that De gedissocieerde wetgever (The Dissociated Legislator) described and the demand side of this loop are two halves of one process of wear.

Three links in one movement

The series supplies the instrument for seeing exactly what disappears. The route to delegated legislation sidesteps three links at once. Room for Loss: a framework act can barely be killed off, because there is too little in it to be against; the substantive fight that Nº 04 described is never fought. Counterplay: the Advisory Division of the Council of State advises on the shell, the consultation is about the shell, and by the time the norm appears in the decree the heavy artillery has already been spent. And the Arena: there is no place where the substantive interim position rests, because the content has no parliamentary treatment in which it must account for itself.

The customary corrective is the laying procedure (voorhang): the draft decree goes past the House before it is adopted. But a laying procedure without a real possibility of rejection is an imitation of counterplay — the countable proxy from Nº 07 in parliamentary guise. The Directives even explicitly discourage parliamentary involvement in delegated legislation, unless special reasons exist.⁴ Telling, then, is what the House did with the attainment-targets act: it amended into the bill a laying procedure for every attainment-targets AMvB, plus a mandatory evaluation of the attainment targets every ten years.¹ A parliament that buys back its own counterplay and its own practice regime by amendment has noticed the loss. That is the most hopeful detail in this piece.

Risk equalisation as counter-evidence

Yet the conclusion is not that delegation is the evil, and the proof is already in this series. The risk-equalisation system under the Health Insurance Act is delegated legislation in its purest form: the parameters sit in lower-order rules and are set annually by the minister. It is at the same time the best-maintained layer of regulation in the country, because there is a regime around it: an annual cycle, a working group in which the department, the implementing bodies, the insurers and the academy question one another, and a moment of adoption with legal effect.⁶

The variable, then, is not the level of the rule but the presence of the links at that level. Delegation without a regime lets the judgement evaporate in a place where no one is watching. Delegation with a regime is precisely the place where the judgement is exercised every year, more often and more thoroughly than parliament ever could. The empty law is only truly empty when it delegates without regulating who keeps the delegated judgement alive.

The test

The action perspective is therefore delegation with a maintenance contract. Three moves. First: every delegating provision answers, in the explanatory memorandum, the regime question — who reweighs the delegated norms, with what recurrence, with what legal effect. A provision without a regime answer is a blank cheque and ought to be treated as one. Second: a laying procedure only where rejection is real; otherwise leaving it out is more honest than imitating it. Third, the test for the reader who works in or around parliament: pick the system you are responsible for and answer the question of whether your House could still write a substantive amendment to it today. If the answer is no, the competence that the delegation was meant to spare has already gone, and then the law is not efficient but orphaned.

An empty law delegates rules. Without a regime it delegates the forgetting as well.

Footnotes

1. Wet herziening wettelijke grondslagen kerndoelen, adopted by the House of Representatives on 9 December 2025, in mid-2026 before the Senate; the updated attainment targets are to be laid down by order in council, envisaged for August 2026. By amendment, a laying procedure for attainment-targets AMvBs and a mandatory ten-yearly evaluation of the attainment targets were added. ↩ ↩²

2. W.J.M. Voermans, ‘Gedelegeerde insubordinatie. Lagere regels die afwijken van parlementaire wetgeving’, in: De staat van wetgeving. Opstellen aangeboden aan prof. mr. C.A.J.M. Kortmann, Deventer 2009, p. 47-66; R.A.J. van Gestel en A. Vleugel, De betekenis van kaderwetgeving en delegatie, study commissioned by the Council of State, 2011. ↩

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

4. Aanwijzingen voor de regelgeving, directive 2.19 (Primacy of the Legislator) and directive 2.35 (Laying procedures), with the main rule that formal parliamentary involvement in delegated legislation is dispensed with unless special reasons exist for it. ↩ ↩²

5. Jacob Huibers, Practice Regime (Nº 05 of the Orphaned Design series), Statecraft, 2026. ↩

6. The annual cycle around the risk-equalisation model, guided by the Werkgroep Ontwikkeling Risicoverevening (Risk Equalisation Development Working Group); see Nº 00 and Nº 05 of this series. ↩