Conceptualizing Judicial Advice: Functions, Types and Modes

Our purpose in this contribution is to show that the acceptance of advisory opinions is not a zero-sum game, but rather depends on a range of factors. Quite apart from external factors such as the political climate surrounding the courts and their work, the most important factors, we contend, are the specific purposes of judicial advice­giving in a particular case, and the mode by which it is expressed.

11.3.1 Functions and Types of Judicial Advice

Judicial advice-giving may perform different functions within the policy-making process. An analysis of these functions may be undertaken both from a subjective and an objective perspective. The subjective perspective focuses on the actors involved in the decision to ask or give advice. The main question is then, what judicial advice is meant to do. This is what we refer to when we use the term ‘function’. The objective perspective is geared towards the content of the advice: what does it actually do in the process of policymaking? We refer to this as the type of advice. Both perspectives are inspired by social science theory on advice-giving and partly by existing doctrinal studies of advice-giving in a legal context.^[885]

11.3.1.1 The Subjective Perspective: Functions

Advisory opinions do not operate in a vacuum, they are part of a broader context of decision-making. The reasons for policy makers, third parties or constitutional designers to organize or activate advisory jurisdiction may impact its perfor­mance and its legitimacy. We distinguish three substantive functions of judicial advice giving: information, deliberation, and validation and two strategic functions: insurance and delaying tactics.

Let us start with the informative function. Bringing in expertise seems the main reason to involve courts in the policy-making process. Courts are essentially tech­nocratic institutions well-known for their knowledge of the law. Moreover, by their political insulation and their methodology, they arguably have unique abilities in terms of interpretation and principle.^[886] We might label this the technocratic dimen­sion of the informative function. Yet in some jurisdictions, courts consider their informative role narrowly, engaging in advice only when it comes to matters directly affecting their own domain. Thus, for instance the Dutch Supreme Court only answers questions when they are related to, what its former president, called ‘its own little garden’: the role of the courts, civil and criminal procedure.^[887] Advice-giving in such a case mainly serves the optimal functioning of the judiciary as a group of profes­sionals. We might label this the participatory dimension: judicial advice, not as a matter of technocratic expertise but as a matter of involving relevant stakeholders in the policy-making process.

Expertise should be understood broadly, covering not just the substance but also the process of acquiring relevant information. In that sense advisory jurisdiction can also have a deliberative function. The procedure of the Supreme Court of India in exercising advisory jurisdiction resembles for example, as closely as possible, its procedural rules governing adjudicative jurisdiction, which ensure some degree of transparency, procedural fairness, and representation of interested parties.^[888] The idea is that procedure thus enhances both the deliberative potential, and the legitimacy of the advisory opinion. However, as we will see, courts not always deploy their proce­dural potential when engaging in constitutional consultancy. The decision whether to style the process of advice-giving as a deliberative tool may be influenced by the court’s perception of their own role within the separation of powers.

An additional function of advice is validation.^[889] Political actors may enlist courts to validate their own views, to themselves, and to others: opposing forces, institutions, the general public. A government may try to convince Parliament that its proposals are constitutionally sound, the legislature may seek to attach credibility to its own assessment. After all, the expertise and the reputation of impartiality courts bring to the table, is also a great source of authority. Moreover, validation may also be a way of sharing the accountability for the outcome of the decision.^[890]

A controversial example of validation concerns the way in which the FCCG became entangled in a 1952 political struggle about the ratification of the European Defence Community which would have required rearmament less than a decade after the Second World War.^[891] The parliamentary opposition unsuccessfully moved to have the treaty annulled by way of the abstract review procedure at the FCCG. Given the fact that this request would have been dealt by a senate of the Court which, at the time supposedly leant towards the opposition, the federal president initiated a request for an advisory opinion from the full Court. Obviously, this case was constitutional dynamite. Moreover, it is clear that this case was not about expertise, but rather that it was motivated by a political purpose. Put in a friendly way: the president sought to have his constitutional judgment that the treaty was constitutional validated by the Court. When it appeared that even the full Court would rule against the constitu­tionality of the treaty, he quickly withdrew his request.^[892] This case also showed the dangers which validation may pose for the legitimacy of judicial consultancy.

Judicial advice may also be sought on grounds that are less connected to the substance of the legal question before the court, but rather showcase political strategy. Two functions we distinguish here are: insurance and what we might call delaying tactics or the ‘fridge’ function.

Lastly, advice may also be asked, not because of the need of judicial clarification or of validation, but by way of a stalling effort or an attempt to defuse a politically sensitive situation.^[902] One might call this a refrigerator tactic in two ways. First, the refrigerator is there to store things. Likewise, referring a difficult decision to a court for an advisory opinion may buy the political actors in question some time. Of course, this is very hard to establish from a legal perspective. Having said that, Mathen points at a statement of the Canadian government that it would refer the constitutionality of the 2017 Genetic Non-Discrimination Act to the Supreme Court of Canada for advice.^[903] Given the fact that the responsible minister had opposed the passing of the law, and that private parties would be slow to change their policies in advance of the Court’s opinion, some critics argued that the government merely wanted to delay the full and effective implementation of the law. The second connotation of the refrigerator terminology refers to the notion of cooling down.

11.3.1.2 The Objective Perspective: Types of Advice

What are the kinds of advice that courts may come up with? Advice theory distin­guishes four types of advice: (1) recommendation for; (2) recommendation against; (3) information, and (4) decision support.^[905] The first type denotes classic advice, with someone recommending a particular course of action to another. This type of advice is quite well-known in constitutional law as such—for instance when a law commission recommends constitutional amendment in a specific way—but it is less familiar in the context of judicial advice giving. Judicial minimalism dictates courts to be cautious of positively fleshing out constitutional values. Rather than saying what the best course of action is, courts stick to minimum requirements. That said, courts do occasionally suggest recommendations to the legislature. The notion of ‘constitutional hints’ as advocated by Canadian scholars Roach and Duclos, is relevant here.^[906] These may occur when the invalidation of a law requires judicial law-making to fill a void. Courts may indicate that a specific outcome is constitu­tionally preferable while still acknowledging the legislative possibility of choosing alternative arrangements.^[907]

The second version (‘recommendation against’) is quite common. This type of advice concerns cases in which courts point at constitutional defects in (proposed) legislation. Think of declarations of incompatibility under the UK Human Rights Act, Appellentscheidungen of the FCCG, but also of an advisory opinion in which the ECJ finds an international agreement to violate the EU Treaties. In all these cases, the court warns against the unconstitutionality of a policy.

As we already observed, the informative function of (judicial) advice is the most important one. In its ideal form, it does not contain any endorsement of an alterna­tive.^[908] It just highlights several facts, (neutral) observations, perspectives, or criteria. However, the same advice may both contain recommendations and have a broader informative function. Indeed, the reason to ask courts to intervene may not just be to invite them to a recommendation for or against a proposal, it can also be that courts are expected to bring in new perspectives which were underexposed in the political or the bureaucratic process. It is equally possible that the advisory opinion in question was perhaps not intended as informative, but rather as a recommendation for or against, but that ultimately the court left it to the political branches to decide the issue themselves, limiting itself to procedural advice or highlighting certain legal aspects of the decision.

A specific variant of information concerns, what in advice theory is known as decision support. Under this type of advice, the consigliere provides a procedure or a model by which policy makers can decide for themselves. The recommendatory nature of the opinion is thus on structure rather than on the content of the decision. The Protocol 16 reference procedure of the ECtHR was specifically designed to assist domestic courts. By setting standards, defining criteria, and listing relevant factors, the Court provides guidance to domestic courts without prescribing the outcome of the case.^[909] Moreover, the Canadian Quebec reference might well be considered as this mixture of recommendations and information. After all, the Court hardly limited itself to answering questions about the ability of Quebec to unilaterally secede from Canada, but it also extensively discussed the applicable general principles under­lying the constitutional order.^[910] This discussion, of normative principles informing constitutional government in a liberal democracy, still stands as a powerful point of reference not just in Canadian, but also in comparative constitutional law.^[911]

11.3.2 Modes of Advice

Having charted the functions of advice we now turn our attention to the different forms of judicial advice. So how to map these different forms of advice? We propose a categorization based on two axes. We first distinguish between judicial and extra­judicial advice. The defining feature is thus whether the advice is offered in the context of exercising a judicial power. We adopt a broad, institutionalist, under­standing of judicial power, subscribing to the view of the German Constitutional Court we already mentioned in Sect. 11.2.3.^[912] This may depart from more conven­tional understandings of judicial power, which equate judicial with adjudicative power. We remedy this divergence by distinguishing two specific subcategories: adjudicative and non-adjudicative powers.^[913]

The second axis concerns the distinction between formal and informal modes of advice. The difference between the two lies in the existence of a legal structure, a framework specifically designed to accommodate judicial advice-giving. Formalized modes of advice are usually laid down in specific laws and follow, or set in motion, a specific procedure, whereas informal modes of advice take the shape of casual letters or obiter dicta in the context of performing the adjudicative function.

Applying the two axes judicial-extrajudicial, and formal-informal, basically yields four quadrants, which we will briefly discuss below. This typology can be seen in Table 11.1.

11.3.2.1 Formal Judicial Advice

The first quadrant concerns formal advice in the context of a formal judicial power. What these types of advice have in common is that they arise from a judicial procedure which is at least partially designed to generate advice. However, the nature or function of the advice may vary. Advisory jurisdiction in its classic form is not connected to adjudicative proceedings, but it is the result of an institutionalized formal procedure usually laid down in legislation or international law. The classic example is of course the reference procedure, based on s. 53 of the Canadian Supreme Court Act. This concerns the exercise of a legal-formal power; however, it is non-adjudicative in the sense that the questions put before the Court are abstract questions of constitutional interpretation.^[914]A similar procedure can be found in India^[915] and in several African

Table 11.1 A typology of advice by courts

Source The authors

W. Mingelen and J. Uzman

jurisdictions such as Kenya.^[916] In the European context, one might think of the specific powers of both domestic constitutional courts and the European Court of Justice to opine on the (EU-)constitutionality of international obligations. These examples concern advice which is considered to be more than the mere product of a group of experts. These advisory opinions look, quack and swim like judgments. There are just two crucial differences: the legal basis involved and absence of truly adversarial proceedings.

It is decidedly less familiar to refer to declarations of incompatibility under s. 4 of the UK Human Rights Act, as advisory opinions. And yet there is a case to be made for including them in the analysis. The fundamental difference with the classic advisory opinions we discussed, is of course that DOIs are made in the context of the adjudicative function. They are part of the operative part of a regular judgment and as such may be coined remedial advice. They were introduced as a mechanism for British courts to correct situations in which statutory legislation violates the HRA (in effect, the substantive provisions of the ECHR), a substitute for the power of striking down.^[917] In these cases some British courts may issue a declaration notifying the political branches of the constitutional defect. Section 4(6) HRA expressly makes clear that such a declaration neither binds Parliament, nor affects the validity of the respective provision. And although it has been suggested that the parliamentary practice of giving effect to judicial declarations of incompatibility has led to a ‘constitutional convention’ of quasi legal effect,^[918] it is at least clear that the DOI is not (intended as) a remedial tool.^[919] Its purpose serves the constitutional, rather than the adjudicative process.^[920] A somewhat similar argument can be made for the advisory power of the European Court of Human Rights under the reference procedure of Protocol 16 to the ECHR.^[921]

11.3.2.2 Informal Judicial Advice

The previous section has set out forms of advice that have in common that the advice given is the result of a formal procedure, which is based on, and regulated by legislation. There are many forms of advice that do not meet either of these criteria. The judicial-informal quadrant basically combines two very different forms of advice-giving which have in common that they are, for very different reasons, of an informal nature. In this case the informality arises from the specific way in which the Court exercises its advisory powers. We already discussed why we consider the advice-giving powers of the Dutch Supreme Court to be informal. It would have been entirely imaginable for the Dutch Court to develop a similar kind of advisory jurisdiction as its Canadian or Indian counterparts. However, it evidently chose to downplay the nature of its advice, opting for a highly informal, low-key approach. Together with the fact that the Dutch Supreme Court is highly reluctant to entertain requests for advisory opinions, generally limiting its jurisdiction to matters which directly affect procedural law or the administration of justice, this displays its discomfort with the concept of judicial advice.^[922] However, this low-key approach comes at a cost: one might argue that it scores relatively low on transparency and on the traditional deliberative virtues of the judicial process. Evidently the Court views the rationale for its advisory role as a matter of expertise and stakeholdership, rather than a deliberative exercise.

The second type of informal advice-giving by courts mirrors the first. The informal nature of the advice arises not from the specific exercise of advisory powers, but rather from the absence of such a power. This kind of advice is offered in the context, but emphatically not in the framework of the court’s adjudicative judicial power. Differently put: its formal powers do not cover the practice of advice-giving. Yet it arises after classic adversarial proceedings and in the form of a judgment. In this sense it clearly resembles the British DOI. The difference between the two is of course that the DOI does have a clear basis in the UK Human Rights Act, which envisions it as part of a more elaborate scheme to facilitate interaction between the courts and the legislature. Rather than in the operative part of the judgment, informal adjudicative advice may be found in obiter dicta.

Many if not most (apex) courts engage in this kind of advice-giving. On the European continent, it is most visibly in the jurisprudence of the German Federal Constitutional Court. The so-called Appellentscheidungen we already mentioned, are instances in which the Court flags the need for legislative reform without declaring anything unconstitutional.^[923] In a similar vein, Neal Katyal has pointed at the rich variety of ways by which the U.S. Supreme Court, notwithstanding its aversion of formal advisory opinions, guides Congress in its judgments. One example is self­alienation, by which the Court offers counsel in cases in which it itself barred from substantively ruling on the matter.^[924] One might also think of demarcation, which is a device for the courts to uphold the constitutionality of a statute while simultaneously warning against other statutes that might go further than the one upheld.^[925] Or the reverse practice of exemplification, when the Court strikes down a statute but then provides advice on how to constitutionally achieve the same policy.^[926] Katyal listed many more forms of advice but the reader gets the picture. Our point here is that all these recommendations are informal forms of advice uttered in the context of regular judgments.

11.3.2.3 Extrajudicial Forms of Advice

Our focus in this contribution is on advisory opinions. We are therefore not concerned with extrajudicial forms of advice. But to get some conceptual grip on the context of judicial advice-giving, it may be wise to briefly outline them. After all, the existence and the extent of extrajudicial consultancy may explain the presence or absence of (mainly formal) judicial forms of advice. Given the broad definition of judicial power we have adopted, extrajudicial advice-giving, in our terminology concerns only those instances in which the focus is not on courts but on judges, either individually or in an extrajudicial institutional framework. These instances vary and have different levels of formality. Some of these are incidental, others more structural. Focusing on the individual level, judges may of course offer the government a piece of their mind by participating in academic of semi-public debates. Speeches are a powerful and frequently used instrument in this respect. Indeed, lawmakers, officials, and judges themselves regularly organize roundtable discussions or conferences, sometimes in the context of the legislative process.^[927] Yet another possibility is the participation in advisory panels or commissions. These instances of advice-giving allow for a somewhat broader and casual approach than the more formal judicial types.

Individual advice-giving is almost by definition informal. However, we may also conceive of advice-giving in an institutional setting. Many European jurisdictions have other formal structures of legal-constitutional advice-giving in which judges participate to a varying degree. The position of these institutions is permanent and part of a wider constitution framework. One example concerns the Swedish Council on Legislation (Lagradet), which, on request, scrutinizes proposed legislation.^[928] At least two thirds of its members must be justices from apex courts. The advice given is non-binding and neither the government nor parliament are compelled to refer bills to the Lagradet, although they regularly do so. This may be different for the advisory powers exercised by a Council of State, which is a fairly familiar concept in continental Europe.^[929] These Councils are usually constitutionally entrenched and an integral part of the legislative procedure. In this sense their advice is of a somewhat more formal nature. Although advice-giving by councils of state cannot as such be equated with judicial counselling, there is a complex intertwinement between the two. In jurisdictions, such as the Netherlands, where the Council of State is tasked both with advisory and judicial duties, there is sometimes a personal overlap between the two functions.^[930] And although this overlap is controversial, it is still possible that some councillors both perform judicial and advisory functions.

Third and last, one might conceive of advice-giving by a Council for the Judiciary, again a familiar institution in many European states.^[931] These councils also regularly give advice on legislative reforms, although both their perspective and their modus operandi is very different. Councils of the Judiciary usually have an explicit legal mandate to engage in advice-giving. However, whereas the Lagradet and the Coun­cils of State provide advice as independent expert institutions, the Councils for the Judiciary act more as a representative of the judiciary as a group of professionals. The main task of the Councils is not to scrutinize legislation, but to facilitate the optimal functioning of the courts.^[932] Moreover although the Councils sometimes offer advice on a wide range of issues, including constitutional reforms, their advice-giving regu­larly involves consultation of their ‘constituency’: judges and courts. Advice by the councils for the judiciary can thus, to some extent, be characterized as participatory rather than technocratic.

11.4