Introduction
For more than two centuries now, the Dutch Council of State’s role in legislative procedures is constitutionally entrenched. Obviously, over times things have changed considerably.
Under the first 1814/15 Constitutions that were enacted after the Kingdom of the Netherlands regained its independence, the Council was a reminiscence of the advisory body that Charles V, emperor of the Holy Roman Empire and head of the royal house of Habsburg, introduced in the 16th century. That ancient council supported the governess who carried out executive duties on behalf of the often-absent emperor. In the early years of the nineteenth century, members of the council were somewhat comparable to contemporary ministers. From 1848 onwards, the Council of State was repositioned to serve as an advisory body with specific knowledge on legislative issues. Since a 2010 reform, the Council is divided into two divisions. One of those is set up as the highest general administrative court; the other division has overtaken the advisory function that used to be carried out by the Council as a whole. In this chapter, I will focus solely on the advisory role of the Council.[806] My aim is to identify how, given its somewhat peculiar position under Dutch constitutional law and presuming the Council strives to be as relevant as possible, the institution should proceed when assessing the constitutionality of proposed legislation. In Sect. 10.2, I introduce the consultative role the Council plays in legislative procedures. I do so by providing several explanations for the institution’s prestige. In Sect. 10.3, I propose to make good use of relevant parallels between the advisory work of the Council of State and the type of constitutional review courts can provide. The metaphor of the constitutional dialogue is used to convey that idea. On the basis thereof, Sect. 10.4 briefly explores some strategies the Council should adopt in order to ensure the effectiveness of the assessment of constitutional permissibility as an integral part of its advisory opinions. The final section contains some concluding remarks.10.2
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