Advisory Opinions of the Council of State
In the Netherlands, the Council of State is considered a venerable institution. Surely, the fact that the monarch is the ceremonial president of the Council adds to its reputation—but it is unlikely that this relic of a bygone age can give full account for the fact that the institution’s statements on law, politics and societal developments matter in the way that they do.
In this section, I will explore several explanations for this influential position.10.2.1 Composition
The head of state is the ceremonial president of the council. Only on rare occasions, the king is actually present at meetings of the Council. Aside from that, the vicepresident is in charge of general affairs of the council. The vice-president and the members are appointed for life by royal decree.[807] Those who have a special expertise and experience in legislative or administrative matters or who can bring specific expertise in the field of administrative law are eligible for nomination. Though political affiliation is not an official criterion, when selecting new members, it is common practice to ensure that the council as a whole is composed in such a way that major political, ideological and religious factions in the Dutch society are represented.
10.2.2 The Council of State's Role in the Legislative Procedure[808]
The Constitution makes it mandatory to consult the Council of State on all bills that are submitted to parliament, irrespective of whether they originate with the government or with a member of parliament. Furthermore, the Council must be heard on all orders in council before their royal promulgation and on all treaties prior to their ratification.[809] At several occasions, it was suggested that the Council’s role should be reduced or even abolished. Nevertheless, the mandatory consultation has survived all constitutional reforms in the Netherlands since 1814.
In the past few decades, the Council’s role has not been disputed anymore—on the contrary, it has vested an almost immaculate reputation.[810] It is safe to say that the Council of State (in its advisory capacity) is here to stay.Though there is no statutory obligation to do so, it is customary to consult the Council as the ‘final’ advisor to the government and parliament.[811] This position underlines both the importance and the weight of advisory opinions delivered by the Council. Being the final advisor, the Council has the benefit of overseeing all the responses and suggestions a draft bill has triggered. Moreover, the version of the draft bill that is presented to the Council is the outcome of a rather lengthy procedure in which several interest groups and expert panels typically have participated. Though a draft bill may be subject to amendment during parliamentary debates, in many cases the proposal the Council commented on will give quite an accurate idea of what the legislature is about to enact.
It is and always has been at the Council’s discretion to determine the terms of reference it will use for the assessment of a bill or a draft order in council. The Constitution nor statutory law provides for an official criterion that the Council must apply. Though it was common knowledge that constitutionality and conformity to international law played an important role in the Councils opinions, it took until 1998 for the institution to formally establish a framework and to disclose its methodology. The assessment framework consists of three elements. It calls for a technical analysis, a policy analysis and a legal analysis. The technical analysis deals with the legislative quality of the proposed bill or order in council.[812] Under the policy analysis, the Council reflects on the effectiveness and efficiency of proposed legislation. When performing the legal analysis, amongst other things the Council addresses the proposal’s compatibility with higher law (i.e.
the Constitution, the law of the European Union and treaty law) and legal principles such as democracy and the rule of law.Typically, the Council’s advisory opinions do not only comment proposed legislation but also the explanatory notes that accompany a bill or an order in council. This is particularly relevant, as the Dutch legal tradition tends to attach great importance to these explanatory notes. They are considered the most authoritative commentary on legislation, and in many cases a court will refer to the explanatory notes whenever it finds the wording or the general meaning of an act to be insufficiently clear. By including the explanatory notes in its assessment, the Council of State thus contributes to the consistency and clarity of Dutch legislation.
Advisory opinions finish with a so-called dictum, a standardised formula that reflects the severity of the Councils critique. A negative dictum means that the Council recommends the bill not to be submitted to parliament or the order in council not to be promulgated, unless substantial changes are made. Until recently, a set of six dicta was in use, but in 2018, the Council decided to reduce this number to four. They are, in ascending order:
a. The Advisory Division of the Council of State has no comments on the proposal and advises it to be submitted to Parliament;
b. The Advisory Division of the Council of State has some remarks with respect to the proposal and advises to take those into account before submitting the bill to Parliament;
c. The Advisory Division of the Council of State has some objections to the proposal and advises it not to be submitted to Parliament unless it has been amended;
d. The Advisory Division of the Council of State has serious objections to the proposal and advises it not to be submitted to Parliament.
The Cabinet’s Rules of Procedure stipulate that a negative dictum (i.e. a C or a D) of the Council of State leads to the bill or draft-order in council to be returned to the ministers.[813]
The Councils opinions are non-binding.
Save for the statutory requirement to provide for a written response to the Council’s advice, the government and parliament are free to either completely ignore or fully adopt the findings—or take any position in between. Notwithstanding this lack of formal authority, the advisory opinions are seldom disregarded. The actual impact of the opinions is rather hard to measure, though. Observers vary in their appraisal of the effect advisory opinions may have on proposed legislation. Some say that only the comments of minor importance lead to actual changes in the bill or the draft version of the explanatory notes whereas criticism that targets the heart of the bill is traditionally dismissed.[814] Others are less pessimistic and point out that in the vast majority of cases, the version of the bill and the accompanying documents that are finally submitted to parliament differs from the version the Council commented on.A specific feature of the Dutch legal system adds to the relevance of the Council’s ideas on constitutional meaning. In the next section, I will briefly explain what feature I mean. From that point onward, the remainder of this chapter is devoted to some suggestions on how the Council of State could go about rendering its opinions in order to be optimally effective.
10.2.3 Consequences of the Ban on Constitutional Review
Under article 120 of the Dutch Constitution, courts are prohibited from reviewing the constitutionality of acts of parliament and treaties. In a landmark case, the Dutch Supreme Court interpreted this provision to also ban the courts from assessing acts of parliament on their compatibility with the Charter of the Kingdom and with customary law.[815] Primary legislation, in other words, is immune to a court’s scrutiny. The only exception to the inviolability of acts of parliament against judicial review deals with a specific type of international law. Courts must refrain from applying statutory regulations if such application is incompatible with the application of provisions of treaties or of resolutions issued by international organizations, provided that those treaties or resolutions are self-executing.[816]
Though the (nearly complete) ban on judicial review of acts of parliaments may very well be the most disputed provision of the Dutch Constitution, it seems unlikely that real changes are imminent in the near future.[817] Besides, even if the ban were to be (somewhat) lifted, the legislature would still be under an obligation to respect the Constitution—and therefor, so would the legislature’s prime advisor.
This means that the Council of State has and will continue to have an important role to play when it comes to safeguarding the Constitution. Against this background, it is necessary for the Council to adopt working methodologies that are as effective as can be.10.2.4 To Sum Things Up
The mandatory consultation of the Council of State on legislative projects, its composition and the absence of judicial review of the constitutionality of acts of parliament are some of the factors that contribute to the Council’s authority on legislative issues in general and on constitutional interpretation in particular. Given these circumstances, the question rises how the Council can optimize its role in legislative proceedings. In the remainder of this chapter, I intend to demonstrate that it can make sense to use constitutional courts as an inspiration for answers to that question.
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