Actors on Constitutional Advice and the Different Nature of Advice

Many national and international actors or institutes have the task of giving constitu­tional advice to the Dutch government as executive and/or as co-legislator as well as to the parliament.

Not all of the advisory opinions of these national and international bodies and institutes are equally relevant from the constitutional perspective, although many of them concern at least some constitutional aspects. Besides, the opinions—when constitutionally relevant concerning their object—can be different for reasons of their purposes and the nature of impact (e.g. at the one hand an arbitrary opinion or judgment in concrete cases and on the other hand advising in the strict sense concerning policies and legislation) as well as of the extent of impact. Hereafter I will explore the advisory task of some of these Councils and bodies in more or less detail.

4.4.1 Internal Governmental Constitutional Advice

and Assessment

The Department for Constitutional Affairs and Legislation of the Ministry of the Inte­rior and Kingdom Relations can be consulted for advice in constitutional matters, including fundamental rights. It can be consulted by the Departments of the same ministry or by other ministries. Besides, the Department of Legislation and Legal Affairs of the Ministry of Justice and Security and the Department of Legal Affairs of the Ministry of Foreign Affairs can be consulted for advice with regard to some more specific constitutional issues (e.g. the Ministry of Justice for issues like the judi­ciary) and human rights standards. There can be many reasons for this governmental- internal constitutional advice, in general: preparing legislation, policy and to be held responsible to the parliament or external oversight committees. Concerning policy which has to result in legislation, constitutional advice can and should be given in the earliest possible stadium. This happens however ad hoc and must/is prioritized by at least constitutional relevant projects or issues which are dealt with in a coalition agreement of the cabinet.

When it comes to legislation, constitutional advice and assessment can be distin­guished but do often overlap. The decision whether legislation is constitutionally relevant is made by the legislator ‘ex ante’.

Although these aids do exist for quite some decades now, they do not always result into policy or legislation with the best (constitutional) results, as e.g.

4.4.2 High Councils of State

The Council of State, the National Ombudsman, the Houses of Parliament, the Court of Audit and the Cabinet of the King are High Councils of State. These bodies are regulated by the Constitution and carry out their tasks independently of the government. Most of them play an import role in e.g. constitutional advice, although the effectiveness of (some of) its advice is sometimes discussed or at least hard to verify.^[159]

4.4.2.1 Council of State^[160]

The Council of State has two primary tasks, carried out by two separate divisions. The Advisory Division advises the government and Parliament on legislation and governance, while the Administrative Jurisdiction Division is the country’s highest general administrative court. The basis for these responsibilities can be found in Arti­cles 73 and 75 of the Dutch Constitution. Hereafter I will focus on the (constitutional) advisory task of the Advisory Division.^[161]

The Advisory Division of the Council of State provides the government with independent advice on (a) all Bills introduced in Parliament by the government, (b) all orders in council, before they are promulgated by the Crown, (c) all treaties that the government puts before Parliament for approval, (d) all matters on which its advice is required by law, such as the Budget Memorandum and expropriation orders, and (e) other matters on which the government seeks the Council’s advice.

In assessing Bills and other requests for advice the Advisory Division uses an assessment framework made up of three elements: policy analysis, legal issues and technical aspects. This gives rise to the following nine questions. The first three of them regard the policy analysis: (a) is the problem being addressed one which can or should be solved by legislation?, (b) will the proposed legislation be effective, efficient and balanced as regards costs and benefits?, and (c) will it be possible to implement and enforce the proposed legislation and to monitor its effects? The next four questions concern the legal issues: (d) Is the Bill compatible with higher law: the Constitution, treaties (such as the human rights conventions) and European law?, (e) Is it in accordance with the principles of democracy and the rule of law? (f) Is it compatible with the principles of good legislation, such as equality before the law, legal certainty, proper legal protection and proportionality? and (g) Can it be easily incorporated into the existing legal system? The last three questions concern the technical aspects: (h) Is the Bill well drafted from a technical point of view? And (i) Does it establish a logical, systematic regime?

At the end of the advisory opinion, the Advisory Division gives its judgment (the dictum). If negative, the dictum will recommend against introducing the Bill or promulgating the order in council, or it may recommend waiting until substantial amendments have been made. In such cases, the proposed legislation is returned to the Cabinet. Once the Advisory Division has issued its opinion, the relevant minister formulates his view of the opinion in a report (nader rapport) presented to the King.

The Advisory Division of the Council of State produces about 500 advisory opin­ions on legislation annually, about 95% of them within three months.^[163] Most of these opinions concern regular obligatory advisory opinions during the legislative process.^[164] Some of them concern non-solicited advisory opinions. In the period 2010­2020 the Council submitted three times such a non-solicited advisory opinion.^[165] In the same period the Council provided 87 so called informative advice (voorlichting),^[166] sometimes requested by the parliament.^[167] Some of this informative advice is issued during the legislative process, some not. Not all of these advisory opinions and infor­mative advice are constitutionally equally relevant, although many of them concern at least some constitutional aspects.^[168] Even when constitutionally relevant, the nature of the informative advice can differ, depending of the underlying request. Especially advice the House of Representatives asks from the Council of State in a concrete case dealing with the interpretation of the Constitution could be regarded as a kind of constitutional arbitration, what is quite different from an advice concerning the constitutional compatibility of draft legislation during the legislative process. The advisory opinions issued by the Council are considered to be authoritative. To what extent the Council actually lives up to its reputation, however, remains to be seen according to some researchers. A recent thesis answers to the question how advi­sory opinions on legislation contribute to assessing the constitutionality of bills. By examining how the Council interpreted the Constitution in 168 opinions, issued between 1980 and present day, the thesis provides a critical image of the consistency and quality of constitutional review in legislative advice.^[169] Over the years proposals have been done in order to strengthen the (effectiveness of the) Councils task of giving constitutional advice and doing a scrutiny test.^[170] One of the concrete instru­ments or measures adopted by the Council has been the establishment of a permanent constitutional gathering (Constitutional Beraad) within the Council.

4.4.2.2 National Ombudsman

The National Ombudsman doesn’t have the explicit task of giving (constitutional) advice, but has the task to test the properness of governmental conduct.^[171] Its position and task are enshrined in Article 78a of the Constitution, and are elaborated in the National Ombudsman Act and in provisions of the General Administrative Law Act. Although the ombudsman does not have the explicit constitutional task to safeguard human rights, these rights make evidently part of the properness test framework of the ombudsman. More generally, the role and function of National Ombudsman institutes in protecting and promoting human rights are internationally well acknowledged,^[172] although the extent of its efforts and commitment in this field will also depend on the existence and tasks of NHRIs.^[173] When citizens experience difficulties in their dealings with the government, the National Ombudsman can mediate or intervene. Alternatively, the ombudsman can launch an investigation. The investigations fall into two categories: those prompted by individual complaints and those initiated by the organisation of the National Ombudsman itself. Investigations can be seen as free— sometimes: constitutional—advice to the government. In 2020, 56 investigations have been conducted.^[174] Some of them dealt with the complaints of citizens about the protection of their fundamental rights, like complaints about the use of current surge weapons by the police and detention circumstances during the Covid-19 pandemic.^[175] The ombudsman informed the House of Representatives about the follow-up of these investigations and announced he will take care of the situation in the next future. More general, the ombudsman noted in its year report on 2020, that eight times the government gave a reaction on a report or letter of the ombudsman. In a follow-up to the reports and letters Members of Parliament posed written questions to the government six times. 19 times MPs referred in their written questions to the government to a report or letter from the ombudsman, where these reports or letters were not the direct reason for these questions.^[176] Worth mentioning, it was in 2017 that the National Ombudsman issued its report ‘No power play but fair play. Disproportionately harsh approach to 232 families with childcare allowance’ (Geen powerplay maar fair play. Onevenredig harde aanpak van 232 gezinnen met kinderopvangtoeslag).^[177] As has been concluded by the POK, no (adequate) follow-up was given to this report.

4.4.2.3 Houses of Parliament

The Houses of parliament have three major own ‘investigation’ instruments which can lead to (partly) (constitutional relevant) advice or recommendations: inquiry, investigation and interrogation. The parliamentary committee of inquiry is a partic­ular type of temporary committee of the House. The parliamentary inquiry is the most powerful instrument the Dutch parliament has at its disposal to carry out its duty to scrutinize the work of the Government. It is not only held to establish who is responsible for what has gone wrong, but also to get a clear picture of an issue, in order to develop improved policy. Over the past thirty years, various parliamen­tary committees managed to bring new facts to light. Since the Second World War, the House of Representatives carried out twelve parliamentary inquires and at the moment several inquiries are going on.^[178] Besides, both Houses of the Parliament have the instrument of investigating policies and projects done by the Members of parliament themselves. Different instruments can then be used, among others instru­ments based on the Parliamentary Enquiry Act (Wet parlementaire enquete), but without the legal enquiry competences. A recent example of such a parliamentary investigation is the Temporary Commission Enforcement organisations (Tijdelijke Commissie Uitvoeringsorganisaties; TCU) and the Temporary Commission Natural Gas Groningen. Furthermore, since 2016 the House of Representatives has had at its disposal the experimental instrument of a parliamentary interrogation (parlemen­taire ondervraging) (a so-called mini-enquiry), an instrument in between the former ones. Like in the case of enquiries, witnesses are obliged to appear and they are examined on oath. The Pocob and the POK, mentioned before, are examples of such an interrogation.^[179]

In general, these parliamentary instruments have much political and (social) media attention because of the nature of the instruments and (mostly highly sensitive) topics. Above all, especially the inquiries are rather powerful because of the competences that can be used.

4.4.3 Netherlands Human Rights Institute

The Netherlands Human Rights Institute (NHRI) (College voor de Rechten van de Mens) is the Dutch national institute for human rights, as defined in Resolution A/RES/48/134 of the UN General Assembly of 20 December 1993 on National institutions for the promotion and protection of human rights and in Recommendation R (97) 14 of the Committee of Ministers of the Council of Europe of 30 September 1997 on the establishment of independent national institutions for the promotion and protection of human rights.^[180] The NHRI aims to protect human rights in The Netherlands, including the right to equal treatment, promote awareness of these rights and to further compliance with these rights. These aims as well as the NHRI’s powers are defined by Act of Parliament (National Human Rights Institution Act; Wet College voor de rechten van de mens). One of the legal tasks of the NHRI is giving advice on legislation and policy, either on own initiative or not.^[181] Since its foundation in October 2012 until 2021, the NHRI issued 112 advisory opinions.^[182] Besides, the NHRI has the legal task to issue on a yearly basis a general annual report on the human rights situation in the Netherlands of the precedent year. Until 2021 the NHRI issued 9 of these general annual reports, always including several recommendations.

What about the follow-up of these advice and recommendations? The year reports (different form the annual reports) mention the results to a certain degree, especially the results from the advice, not from its ‘letters’ to the government and parliament. Concerning the general annual reports, the cabinet always sends a policy letter to the parliament giving its vision on the report and reaction to the recommendations of the NHRI. Both recommendations and reactions are most of the times rather general by nature, which means that it is equally difficult to conclude whether and if so, to what degree, recommendations are exactly followed by the government. The parliament itself pays hardly or even no (structural) attention to the general annual reports and governmental reactions. Nevertheless, looking at the results of evaluations of the NHRI one has to conclude that the NHRI is functioning effectively.^[183] These conclusions are encouraging but ameliorations seem still to be possible, as will be amplified in Sect. 4.8. For the next evaluation, the follow-up of the year report on ‘access to justice’ seems to be worthwhile in the light of the POK.

4.4.4 Legal-Based Permanent Specialized Commissions

The Dutch Data Protection Authority (Dutch DPA) supervises processing of personal data in order to ensure compliance with laws that regulate the use of personal data.

The tasks and powers of the Dutch DPA are described in the General Data Protection Regulation (GDPR), supplemented by the Dutch Implementation Act of the GDPR.^[184] The tasks and powers of the Dutch DPA can be roughly divided into four sections: supervision, providing advice, providing information, education and accountability, and international assignments. The task of providing advice concerns legislative proposals and draft texts of general administrative regulations that wholly or signif­icantly deal with the processing of personal data (Article 36(4) GDPR). The Dutch DPA provides both solicited and unsolicited advice and consults with the legislature. In the period 2010-2020 the Dutch DPA provided 436 such pieces of advice.^[185] Among these pieces of advice and reports, there was one from 17 July 2020, where the DPA pointed out that the Tax and Customs Administration’s risk assessment system, based on Artificial Intelligence, had not respected the EU General Data Protection Regu­lation (GDPR) and had relied on discriminatory data on double citizenship.^[186] With regard to the functioning of the Data Protection Authority, data on the measuring of the effects of the advice are hard to find.^[187]

4.4.5 State Commissions and Other Ad Hoc (Constitutional) Advisory Commissions

Since 1814/15 the Dutch government has established special so-called (ad hoc) state commissions for advice and/or the preparation of at least amendments to the Dutch Constitution.^[188] These commissions on the Constitution differ in nature and tasks rather extensively, as well as the nature of the subsequent different amendments to the Constitution. Since 1982/83 there have been eight (state) commissions on (elements of) the Constitution: the state commission Biesheuvel (1982-1985), the Commis­sion De Koning (1991/93), the commission Vrancken (2000), the National Conven­tion (2006), the state commission Thomassen on the Constitution (2009/10),^[189] the state commission Remkes on the parliamentary system (2017/18)^[190] and the commis­sion Fokkens on the amendment of legislation concerning office crimes of MPs and members of cabinet.^[191] Common to the follow-up is that just a very few of their pieces of advice have been adopted and resulted in concrete proposals for amendments of the Constitution.^[192] Nevertheless, but not incomprehensible, the establishment of new state commissions is being prepared: one concerning antidiscrimination and one concerning the rule of law.

State commissions not only deal with constitutional affairs, see for example the state commission Reverification Parenthood (2016), although this is predominantly the case. Legally, a state commission is ‘just’ an advisory commission in the sense of the Framework Act on advisory bodies. Traditionally, state commissions are estab­lished by Royal Decree (Koninklijk Besluit). Since 1945 also ministerial commis­sions have been created as well as other more informal entities of preparation and advice on amendments to the Constitution. An example of such an informal entity or structure has been the ‘Proof of a new Constitution (Proeve van een nieuwe Grondwet)’ prepared by a working group of civil servants and scientists, which was published—a long time ago—in 1966 in order to involve the whole society in the process. This process finally led to the last general amendment of the Dutch Constitution in 1983. Ad hoc commissions which were established by the Minister but at the same time were rather unconventional have been the National Convention (2006) and the Citizens Forum Electoral system (Burgerforum Kiesstelsel; 2006), both characterized by the active participation of citizens. Unfortunately, despite the inclusive and innovative processes and at least partly meaningful advice, none of the advice of both commissions have been adopted by the cabinet in 2008.

Up to the fifties/sixties state commissions were formed by a mixed composition of active politicians and scientists. Even the Minister of the Interior himself once chaired such a commission. Most of the times the outcome of such commissions was already clear from the beginning. The state commissions aimed not only in giving advice as such but also especially at creating socially and political basis for proposals to be worn off more specifically later on.^[193] This approach occurred during the social pillarization and therefore might have been necessary that period. Since the nineties (commission-De Jong, Framework Act on advisory bodies) however a separation between advice and deliberation was introduced for reasons of ‘primacy of politics’.^[194] Politicians should concern themselves on new (constitutional) policy and legislation, not non-elected experts, so was the idea. The government takes the initiative and the parliament ‘had to’ adopt the bills, what would be more difficult when social and political basis would have been created at forehand. The margin of appreciation for deciding differently would otherwise become very small. This approach of more dualism could be regarded as being in favour of transparency, but not of the social and political basis of the advice. Advisory commissions on the constitution composed only by experts seem to lack the political authority which seems to be necessary for the acceptability of the advice or recommendations when it comes to amendments of the constitution or constitutional structures. In opposite of old-style state commissions, the (state) commissions in the sense of the Framework Act Advisory bodies are not allowed to be composited by active politicians or civil servants who are involved with the topic about which the commission will give advice.^[195]

4.5