Kinship Between the Council’s Counselling and a Court’s Constitutional Adjudication
All the respect and the good reputation that the Council has acquired over time cannot make up for the fact that, formally speaking, its opinions in the end are nothing more but advice.
Whereas a court that has review competences can unilaterally strike down or suspend legislation that it deems unconstitutional, the Council can only posit such incompatibility with the Constitution. From there, it’s up to the legislature to take up the gauntlet. Undoubtedly, this has an impact on the way the Council formulates its opinions. Assuming that the institution will strive for maximum impact of its work and given its constitutionally assigned position in the legislative procedure, the question rises what strategy it can adopt in order to ensure that the legislature will be as responsive as can be to the opinions. In this respect, several Dutch scholars have stressed that the Council is not a court, and that therefore it cannot be expected to perform the type of review of legislation provided by constitutional courts.[818]Obviously, commentators are right when they point out that a major difference is that the Council, unlike a court, cannot decisively determine the outcome of a dispute over the constitutionality of a bill (strictly speaking, courts typically do not review bills but acts, but that distinction is of no importance in this context).[819] There are more discrepancies that are relevant. When performing ex post constitutional review, courts are asked to rule on a matter that is in the past. These courts are positioned with their backs towards the future and can, to a certain degree, the entirety of a concrete conflict. The judicial focus on concrete cases prompted the Council to stress that judicial review is “not insignificantly something else than duplicating the review that has been or should have been undertaken during the drafting of the bill”.[820] The Council has a task that is somewhat comparable to that of courts that are involved in abstract ex ante review of an act of parliament that is yet to be promulgated.[821] In essence, advising or adjudicating on the constitutionality of a law that has not been applied yet, calls for predicting the future.
Though the abstract (p)review is somewhat less different from what the Council of State is asked to do, an important distinction remains that the court is presented with a definitive version of the act whereas the Council is consulted on a draft bill that may be subject to changes during parliamentary debates. Other differences that come to mind deal with the existence of procedural law that facilitates the court’s proceedings. Rules dictate the type of evidence that can be submitted, the equality of arms between the advocates and opponents of the act is guaranteed and there are means for the enforcement of the ruling. On the contrary, Dutch law is mostly silent on the procedure to be followed by the Council of State when rendering its opinion.Despite all these and undoubtedly many other ways in which rendering opinions on the constitutionality of bills differs from adjudicating on an act’s conformity to the Constitution, there are some relevant parallels between what the Council of State does and what typically happens when a court is called upon to perform constitutional review. Ignoring those parallels would be throwing out the baby with the bath water, as they can shed light on what the Council of State can do in order for its opinions to have optimal impact. This becomes apparent when we focus on the so-called constitutional dialogues to which many constitutional courts are participants.
10.3.1 A Working Definition of a Constitutional Dialogue
As happens with many popular notions, the metaphor of the constitutional dialogue has been the subject of a Babylonian confusion of tongues. Some scholars embraced the metaphor where others have criticised it as unrealistic and misleading.[822] Rather than wishing to bring the debate on the promises and pitfalls of the metaphor any further, I aim to rely on a consensual definition of the constitutional dialogue and to use it as an inspiration for defining the standards and techniques the Council of State could apply when interpreting the Constitution.
Fortunately, others have made that possible by providing impressive accounts of the use of the dialogue metaphor.[823] Dialogue theories deal with the interaction between state institutions—most notably between the legislative and one or more courts, but interactions between two courts, such as for instance a national court and the Court of Justice of the European Union, too, have been analysed through the lens of a dialogue theory. These interactions are aimed at determining the meaning of a constitutional provision, as that meaning is of decisive importance for the legality of legislative (or sometimes executive) action. The analogy is used to emphasize that this process of interaction is an ongoing, reciprocal endeavour. None of the institutions involved is considered to have the power to permanently end the debate (which is not the same as the dispute). Instead, a court ruling or a legislative decision is no more than a temporary last word on constitutional meaning. Dialogues postpone finality. The metaphor may be used to describe and understand how these interactions take place. On a more ambitious account, some dialogue theories seek to prescribe how these interactions should take place. For the purpose of this chapter, my use of the term constitutional dialogue refers to sequels of statements issued by equal institutions that, on the basis of reciprocity and continuity, aim to interpret and apply constitutional norms. Most of the elements of this working definition will speak for themselves, with the possible exception for the equality between the institutions involved. Here, equality is to be understood on an abstract or general level. Naturally, it does not mean that I deny that courts or the legislature can give the final answer to questions of constitutional meaning in an individual case. The inclusion of equality in my working definition serves to underline that, on an abstract level, the institutions that are involved in the discourse on constitutional meaning retain autonomy in deciding how they wish to interpret a norm. If it where elsewise, whatever institution holds the strongest claim to unilateral and definitive interpretative authority would be able to issue an ukase on the meaning of a constitutional norm.[824] Under those circumstances, no meaningful exchange of ideas is possible and the term dialogue would be misplaced.10.3.2 Usefulness of Dialogue Theories as a Frame
of Reference for the Council of State
Though the backgrounds to the various concepts of the constitutional dialogue differ greatly, I think it is safe to say that they have at least one thing in common: they all aim to address the inherent tension between the exercise of legislative and judicial authority by indefinitely postponing a final decision on constitutional meaning. It is not necessary to discuss the genesis of the dialogue metaphor in detail, here. However, in order to demonstrate the usefulness of dialogue theories as a frame of reference for the advisory task of the Council of State, I consider it helpful to make some brief remarks on three jurisdictions that may be considered breeding grounds of constitutional dialogues.
10.3.2.1 Countering the Counter-Majoritarian Difficulty
Well before to the emergence of dialogue metaphors, the aforementioned tension between the legislative and the judiciary was famously coined the countermajoritarian difficulty by Alexander Bickel.[825] Since the US Supreme Court already in the first years of its existence claimed the authority to override congressional legislative decisions, commentators questioned the authority of unaccountable judges to assess and set aside laws enacted by elected representatives whenever the court’s interpretation of the Constitution differs from that of the legislature’s. Presuming that reasonable people can think differently on the meaning of a constitutional provision, judicial review of legislation inevitably calls for the exchange of the reasonable interpretation favoured by judicial authority against the equally reasonable interpretation embraced by a parliament.
As pointed out by Mark Tushnet, judicial review may proactively undermine the democratic nature of the legislative procedure. Legislators may opt for a version of the bill they think offers a less fitting solution to whatever problem that needs fixing, just because they expect it to be more courtproof than the version they actually prefer. Tushnet called this the policy distortion effect. Alternatively, the mere possibility of judicial review may tempt lawmakers to simply ignore questions of constitutionality when debating a bill—relying on the courts to uphold the Constitution whenever problems pop up after promulgation of the act. Both this debilitation of the legislature’s mandate and the possibility of policy distortion pose a threat to the checks and balances within a constitutional democracy. In addressing these problems associated with constitutional review by the judiciary, several American scholars after a while advocated the notion of the constitutional dialogue.[826] Rather than denying courts the power to uphold the Constitution or accepting the absence of any restraints on the legislature’s authority to define constitutional meaning, they embraced the idea of an on-going deliberation between the institutions. Thus, the constitutional dialogue takes away the sharp edges of the counter-majoritarian difficulty whilst at the same time allowing for a limitation of parliament’s power to determine constitutional meaning. My first observation, therefore, is that the constitutional dialogue can mitigate the undesirable consequences of allowing a single institution to have the monopoly on constitutional interpretation.10.3.2.2 Dialogue and Deference
A second observation comes from the jurisdiction that is likely the nursery for (theories of the) constitutional dialogue: Canada.[827] Under the Canadian Charter of Rights and Freedoms, rights are only subject to reasonable limits that are prescribed by law and that are demonstrably justified in a free and democratic society.[828] The federal legislative procedure is equipped with several incentives that promote the careful consideration of a bill’s conformity to the Charter.[829] After promulgation, both federal and provincial legislation are open to judicial review.[830] Because of the so-called notwithstanding clause, however, the federal and the provincial legislature may however choose to temporarily exempt acts from judicial review.[831] Especially when the legislature chooses to do so in response to a court ruling in which an act has been struck down for reasons of non-conformity to a rights provision in the Charter, the interaction between the legislature and the court be understood as dialogue.
Originally, the possibility of a moratorium on judicial review was intended to assuage the concerns of the provinces who feared that a federal catalogue of rights with the possibility of judicial enforcement might weaken their autonomy. On a more substantive note, however, it has been pointed out that the notwithstanding clause recognizes the fact that constitutionality in many cases is a matter of degree.[832] This is particularly true when constitutional norms are formulated as open standards—and that is far from rare. In their often-cited article on the factual use of the temporary ban on judicial review, Peter Hogg and Alison Bushell Thornton downplayed the dreaded rise of a gouvernement des juges[833] It turned out that in many cases the legislatures were able to enact the legislation they thought fit without courts blowing the whistle. Direct confrontations between the legislative and judicial institutions induced by the application of the notwithstanding-clause turned out to be very rare.[834] Scholars for several reasons criticize the clause and its application. It has been argued that the legislature’s practice of non-use has made the clause redundant.[835] Be that as it may, it appears that a constitutional design that stimulates interaction between the legislature and the courts, at least promotes mutual considerateness. Thus, my second observation is that by means of constitutional design state authorities can be encouraged to make their considerations on constitutionality more explicit. Moreover, the absence of the possibility of enforcement of judicial interpretation does not per definition keep reviewers from taking a stance on these issues, albeit a reticent one.10.3.2.3 Weak Review and Dialogue
A third relevant example of a constitutional arrangement that has stimulated dialogue is that of the United Kingdom. Presumably the best-known feature of British constitutional law is the prominent role of parliamentary sovereignty. In the absence of a constitutional text that is hierarchically supreme to all other types of legislation, it is up to the Westminster parliament itself to ensure compliance to British constitutional norms. In this context, judicial review of acts of parliament was long considered beyond the pale. With the introduction of the Human Rights Act (HRA) in 1998, however, a weak form of judicial oversight of parliament’s legislative record of accomplishment made its appearance. International treaties not being directly applicable within the British domestic legal order, the HRA serves to transform the European Convention on Human Rights into UK law. In doing so, the act goes to great length to ensure the UK’s compliance to the Convention. Like in Canada, ministers that submit a bill to parliament are obliged to make explicit statements of compatibility of their bill to the Convention rights.[836] Furthermore, the act requires national courts and tribunal to take into account the interpretation given to Convention rights by the Convention institutions—the European Court of Human Rights being the most important one. The act demands that the Convention be given optimal effect where it reads “so far as it is possible to do so, primary and secondary legislation must be read and given effect in a way that is compatible to the Convention rights”. Selected courts of appeal may declare that a provision of a domestic act is incompatible with a Convention right. Such a declaration of incompatibility has no other legal effect than to inform the legislature on the court’s finding; it does not allow for disregarding the incompatible provision. It is up to the UK legislature to take appropriate action. With just over 20 years of experience, the general impression is that courts are not overgenerous in declaring primary legislation incompatible with Convention rights. According to the UK government, a total number of 43 declarations of incompatibility have been made since the HRA came into force.[837] Some of those declarations have been overturned on appeal; in most other cases, the government or parliament has taken appropriate action to address the declaration. Only in a small minority of cases, the government has chosen to disregard a declaration or is (still) considering options. The HRA thus facilitates a constitutional dialogue between high courts and the legislature. Recent developments suggest that the government is seeking ways to reduce judicial intervention even further. The perception that, under the HRA, courts have increasingly been presented with questions of policy as well as law has prompted the government to commission an independent review of the act.[838] The panel of expert’s report is due in the summer of 2021. Nevertheless, the UK example shows that a legislature’s domestic monopoly on issuing binding interpretations of constitutional norms can go hand in hand with a dialogue on the meaning of those norms. This observation is especially relevant to the Netherlands since the Dutch Constitution, though it is written and has an undisputed supreme rank, somewhat resembles the British in the sense that its contents is of a predominantly technical nature.
10.3.3 The Powers of Persuasion
The foregoing brief encounter with three jurisdictions that, each in their own way, have nourished theorising constitutional dialogues shows that such dialogues focus on the powers of persuasion. The mere fact that a contributor to such a dialogue may or may not have the authority to present binding answers to the questions that were at hand in a specific dispute, does not by and in itself settle the argument on the more abstract matter of the interpretation of the constitutional norm that was invoked. Literature suggests that the emphasis on persuasiveness and the lack of finality on an abstract level influences the way courts go about deciding upon the constitutionality of legislation in concrete cases. This insight is relevant in circumstances where a contributor to the dialogue can only rely on its persuasiveness—which is the case for the Dutch Council of State. Moreover, without compromising the obvious differences between advisory opinions and judicial decisions, seen through the lens of constitutional dialogue theories there are some apparent commonalities between what the Council does and what a constitutional court does. In my view, this kinship could and should be used to rely on dialogue theories and experiences as a source of inspiration for recommendations on how to be an effective and persuasive advisor on constitutional interpretation. The Canadian and the British example have demonstrated that the absence of a power to enforce a finding on constitutional meaning or the limited consequences thereof, do not necessarily hinder meaningful dialogues. Though the Dutch legislature has the final say on constitutional interpretation, strictly speaking no such decision has been made at the time a bill is presented to the Council of State. Moreover, as the legislature is not bound by its previous decisions, neither can the Council of State, which is mandatorily consulted during the legislative process, be limited by the legislature’s previous interpretations. In that sense, an interpretative hierarchy between the legislature and the Council is absent—thus the dialogue’s prerequisite of equality has been met. The statutory requirement to write a response to the Council’s advice on a bill and the government’s practice to refer to previous opinions ad to the notion that dialogue is going on between the Council and the institutions that make up the Dutch legislature. Dialogues provide incentives to uphold the Constitution—and so does the compulsory advice provided by an institution that presents itself as a guardian of the Constitution. Finally, dialogue theories recognize that determining the specific meaning of constitutional norms calls for ongoing debate on facts, circumstances and arguments. In essence, such debates are never-ending— they lack finality.[839] A court’s contribution to such a dialogue is a countervailing power to the legislature’s decisions. If an advisor is persuasive, the mere fact that its opinions lack binding force do not prevent them from being a similar countervailing power. My point therefor is that the Council of State may not be a constitutional court, but it sure makes sense for it to use the dialogue expertise gathered by such courts to optimize its advisory task.
10.4