Conclusion

As mentioned at the beginning, there seems to be an urgent need for the continuation or even strengthening of constitutional advice. This need addresses the functions of advice, like delivering knowledge, experiences and expertise and thus contributing to—among others—the quality and/or legal, democratic and public legitimacy of decisions, policies, legislation or the execution.

More or less in line with the observations of the European Commission concerning the Netherlands in the Rule of Law cycle, the Venice Commission concluded in general that the Netherlands is a well-functioning state with strong democratic insti­tutions and safeguards for the rule of law, and that the reports of the Ombudsman, the Parliamentary committee, and the legislative amendments show the reaction of the different mechanisms in the Dutch system. Nevertheless, the Netherlands still has to do some important homework. The Venice Commission makes thirteen far-reaching proposals that are meant as food for thought in the reflection to be carried out by the Dutch authorities; reflections that already had started and partly have contributed to concrete measures. Next to this, the Netherlands will be peer reviewed twice in 2022; first, in the context of the EU Rule of Law mechanism and secondly by the United Nations Universal Periodic Review in the Human Rights Council (UPR).

First, some opportunities for getting constitutional advice seem to be underused. For example, the EU FRA has not been discovered yet by the government and/or parliament for giving direct advice, as was the case with the Venice Commission until very recently. Besides the National Ombudsman could explicitly be given the formal task of giving advice. It is the question however, whether or not the underuse and non-existing competences are a positive or negative thing. For this moment I do consider this for at least as a neutral observation, for reasons connected to the next two conclusions.

Second, what happens with all advice? Was the quality of the advises far enough and what has been the concrete impact? There seems to be a very limited insight in the phenomenon, national and international. Advisory bodies should start contin­uing or strengthening give insight and keep control over the quality of and follow­up to their advice. Besides, meta evaluations on the effectiveness of constitutional advice should be exercised, both national and international. The same applies to the rather unknown effectiveness of oversight mechanisms and—making part of it—their connected observations or advice.

Third, strengthening the impact on constitutional approved policy cycles and finally legislation by creating a more national orientated rule of law cycle, so called feedback loops, constitutional dialogue, and constitutional review. It should be regarded as useful that the government will render once in two years a public report on the ‘State of the legislative quality’ in order to promote those insights from the legislative analysis and signals and reports from—among others—the High Coun­cils of State will be used better when laws and regulations are being drafted.

At the same time the absorption capacity of the government sometimes should not be exaggerated. Its limitations should be taken into account when advising or creating new mechanisms which can lead to new advice; proliferation of account mechanisms and new mechanisms should be tempered, existing ones be strengthened. Therefore, constitutional advisory bodies should take care of the quality of their advises and of their effectiveness for having impact, while the government should be responsive and make full use of the know-how of advisory bodies where possible and should motivate whether or not follow-up has been given to advice.

Above all, maintaining the constitution and thus the rule of law is not only about institutions and formal legal safeguards, but also about maintaining an enabling environment for the constitution and rule of law through the political culture.^[235] This means a political culture with a high degree of awareness of the constitution and thus rule of law consequences of political decisions and exercising self-restraint when politically desired measures are contrary to the constitution/rule of law. Loyal and constructive cooperation among State bodies is a fundamental and overarching prin­ciple for a constitutional democracy.^[236] In a previous opinion, the Venice Commission has defined the principle of loyal and constructive cooperation as a duty to ‘even if an institution is in a situation of power, when it is able to influence other state insti­tutions, it has to do so with the interest of the State as a whole in mind, including, as a consequence, the interests of the other institutions and those of the parliamentary minority.’^[237] In short, self-restraint in the use of powers might be one of the keys to constitutional success.