Strategies Derived from the Dialogue Metaphor
Based on the foregoing, I conclude that there is sufficient kinship between the positions of courts that participate in constitutional dialogues and the Council of State for the latter to let itself be inspired by the former on how to optimize its advisory role.
This proposition opens up myriad resources of experience. Of course, not all of those are useful, as the specific constitutional habitat of the Council as an advisory institution cannot be ignored. In this section, by building on both the metaphor of the constitutional dialogue and aware of the context in which the Dutch Constitution places the Council of State, I propose six (partially overlapping) strategies an advisor such as the Council could adopt in order to optimize its role as guardian of the Constitution. My account of these strategies is derived from the analyses of constitutional dialogues and dialogue theories that can be found in the literature. I am very much aware of the fact that most, if not all of these strategies may seem rather obvious. If so, then at least the accuracy of the standards is beyond contestation. Furthermore, some of the strategies may be at odds with one another. As the strategies express ideal types, this is unavoidable. My point is that by using the judicial experience in constitutional dialogues as a source of inspiration and by implementing the lessons learned as much as possible, the effectiveness of advisory opinions may be enriched and enhanced.10.4.1 Embrace Equivalence
In order for a meaningful and productive dialogue to develop, it seems essential that the advisor refrain from any unnecessary deference to the legislature’s interpretation of constitutional norms. In order for the Council of State to be a partner in the business of checks and balances, it needs to maintain an independent position that is not easily influenced by its counterparts.
In this respect, I disagree with former member of the Council of State Willem Konijnenbelt, who presumed that the non-binding nature of advisory opinions (rightfully) creates an incentive for the Council to be very hesitant in taking a strong position vis-a-vis the legislative.[840]1 will be the first to admit that the Council should refrain from overly bold statements on the constitutionality of the bills that it receives. The Council runs the risk of undermining its credibility when it constantly pulls out red cards. When a careful examination of proposed legislation leads to serious doubts on the constitutionality of the bill, the Council owes it to parliament and to the government to express those doubts and considerations. The legislature has no need of a yes man. The purpose of the advice, after all, is to keep a dialogue going. The Council can embrace its equivalence to the legislator by speaking in plain terms on the constitutionality of proposed legislation rather than remaining silent on these issues or merely vaguely mentioning them. When speaking out, it is essential for the advisor to stay in character. It should not take over the role of the legislature: equivalence does not imply interchangeability. In this respect, Tushnet’s remarks on what he called policy distortion and democratic debilitation come to mind.[841] The first idea deals with courts overstepping their mandate by cloaking a substantive or political agenda in the robe of a constitutional argument; the latter describes the risk of parliaments becoming ignorant on constitutional boundaries to their work since they trust that the courts will blow a whistle on them whenever they violate the Constitution. Both pitfalls need to be avoided.10.4.2 Be as Constructive as Possible
In his attempt to undermine the normative capacities of constitutional dialogue theory, Luc Tremblay discerned two conceptions of dialogue: conversations and deliberations.[842] Conversations are rather spontaneous and have no specific practical purpose other than a pastime or a general exploration of mutual positions and understandings.
This type of dialogues is not meant to have a certain outcome. By contrast, deliberative dialogues are more formal and are aimed at reaching agreement on a certain outcome. Deliberative dialogues have the potential to legitimize the outcome of the debate. This feature is particularly relevant when a participant (e.g. a court) runs the risk of being denounced as counter-majoritarian. Tremblay’s distinction is useful to courts as it can support them in their efforts to avoid scenarios in which their contributions to the debate on constitutional meaning are considered negligible. For similar reasons, a focus on a deliberative dialogue style can benefit advisory institution such as the Council of State The fact that there is an obligation to consult the Council on almost all bills and orders in council leads me to believe that the dialogue to which the Council is a participant, is envisaged by the Dutch Constitution as of the deliberative kind. In order to contribute to the potentially legitimizing effect of the dialogue, the Council’s opinions on constitutionality need to be targeted and constructive. This requires the Council to take an explicit stance on what constitutional norms are relevant and what they require in the given context. The Council’s practice of presumed consent, in which the Council’s silence on constitutional issues is an expression of its approval, therefore needs to be abolished.[843] In cases where constitutionality indeed is “a matter of degree”, the need for explicitness means that the Council must identify the bandwidth of these provisions. It is up to the legislature to fill out the remaining blanks by making policy choices. Here, too, democratic debilitation and policy distortion lie in wait. That should not tempt the Council to become a mealy-mouthed advisor. Vague opinions do not contribute to the purpose of the dialogue and therefor need to be avoided. It most cases, it should not be too hard to draw a clear line between the legal and the political domain—and the latter is where deference is both justified and necessary. Furthermore, a constructive and deliberative contribution to the dialogues takes good notice of what counterparts have said at previous occasions. Merely repeating one’s own ideas does not bring a solution to the argument any closer; willingness to be convinced by the opponent’s arguments does. At the very least, the Council’s opinions must acknowledge the existence of a difference of opinion, and preferably give suggestions on how to move forward—again, all without overstepping its mandate. After all, the bills that are presented to the Council are still open to adjustment. By combining a precise critique with suggestions on how to relieve possible tensions with the Constitution, it becomes more likely that the Council’s opinion will be taken on board.10.4.3 Invest in Persuasiveness
Since the effectiveness of advisory opinions of the Council of State mostly depends on their persuasiveness, the Council may be expected to present solid arguments for its positions. In this respect, solidity is to be understood as intelligible, correct and coherent. Very much like court rulings, advisory opinions can gain in authority by providing a reasoned interpretation of the relevant norms. In particular, the disclosure of the sources and interpretative techniques that have been used in the process of determining the meaning of a constitutional provision can add to the comprehensibility of advisory opinions. Correctness may be the most difficult standard to assess. In the Dutch legal tradition, much authority is attributed to both the original intent of the drafters of the Constitution and to constitutional precedent. Therefore, the Councils opinions are more likely to be considered “correct” if either they are in line with the interpretation that originates from the original intent and common practice or, whenever they deviate, present convincing arguments as to why in this case accepting a different interpretation is the right thing to do. Furthermore, internal inconsistencies of factual inaccuracies undermine the persuasiveness of the advisory opinions.
Coherence, however, will add to the opinion’s authority. This is relevant throughout the entire advisory opinion, and therefore should have consequences for the dictum that is to be found at the end of the opinions. As can be seen in Sect. 10.2.2 of this chapter, the dicta that are currently in use contain no reference to the Council’s findings on the constitutionality of a bill. The dicta resonate the Councils general appraisal of the proposed legislation, and not merely the constitutional aspects thereof. This explains why an advice in which a bill if found to violate the Constitution can nevertheless end with a positive dictum. Including a word or two on the outcome of the Council’s legal assessment might avoid this estranging effect.10.4.4 The Legislature’s Precedents Matter
As discussed in Sect. 10.2.3, a logical consequence of the ban on judicial review of the constitutionality of acts of parliament is that enacted primary legislation is by definition in conformity to the Constitution. This does not, however, force the Council of State to refrain from careful consideration of the constitutionality of new bills that depart from more or less similar interpretations of the relevant constitutional norms. Logically speaking, the binding nature of the legislature’s interpretation of a norm cannot exceed the scope of the enacted legislation. Moreover, the Constitution’s requirement that the Council of State be consulted on (almost) all bills and the absence of any restriction on the criteria that are to be employed inevitably entitle the Council to make up its own mind without being curtailed by legislative precedents. That being said, the fact that the Constitution entrusts the legislature with the task to speak the final word on the constitutionality of legislation cannot be entirely disregarded. It would not make sense to ignore such precedents. Advising on the constitutionality of legislation that is yet to be enacted requires a specific type of predicting the future—and for this reason, abstract review is sometimes nicknamed “constitutional preview”.
Constitutional interpretation in advisory opinions resembles steering between Scylla and Charybdis. Legislative precedents present are useful and authoritative benchmarks. Once the legislature has adopted a certain understanding of a norm, that interpretation enjoys the presumption of validity. For several reasons the Council should not, however, unquestioningly follow such precedents. Circumstances may have changed, the scope of the new bill may be different or the legislature’s previous decision has been criticised. There may be very good reasons for the Council to follow an autonomous course. That autonomy does come at a price, however. An advisory opinion that contradicts the legislature’s precedents puts the burden of proof with the Council of State.10.4.5 Premature Proposals Are to Be Treated Differently than Semi-definitive Bills
Besides the mandatory advice that has to be given on bills, the Council of State Acts enables both the government and the respective houses of parliament to consult the Council on “legislative and administrative affairs”.[844] Though the vast majority of the opinions rendered by the Council deals with bills that are about to be submitted, every now and then use is made of the opportunity to request an optional advice.[845] By definition, requests for an optional advice are about plans and policies that are (far) less elaborate than consultations on draft legislation. Within the latter group, however, several degrees of ripeness are possible, too. At least in a formal sense, bills that are to be submitted to parliament are still open to amendment by both the government and the Lower House.[846] Unlike bills, drafts for orders in council can be amended by the government unilaterally. On the other hand, by the time international treaties are submitted for parliamentary approval, their contents are presumably carved in stone: it is highly unlikely that the parties to the treaty are willing to re-open negotiations on what in many cases is a hard-won compromise. All things considered, the changeability and ripeness of the plans and policies that the Council is consulted upon, varies. It seems only logical to presume that the sketchier a plan is, the more difficult it will be to determine the plan’s conformity to the Constitution. The Council of State should therefore be hesitant to pass judgment on the constitutional permissibility of such work-in-progress. As a result, the Council’s comments will focus more on pointing out what issues are controversial or need additional justification rather than coming up with definitive appraisals. If the Council is asked to render its opinion on bills that passed all the government’s procedures that are set up to enhance and are deemed ready to proceed to the next-to-final step, there is much less need for reticence. At this stage, the Council is required to give an assessment that very much resembles ex ante review by a constitutional court.
10.4.6 Strive for Consistency
Arguably, the most important feature of any legal norm is its generality. When and where applicable, the norm imposes the same yardstick for the resolution of a variety of disputes. Save cases of force majeure, the interpretation of said norms must be characterised by the same generality. Constitutional law’s interrelated characteristics such as its fundamental nature, hierarchical position and rigidity makes this particularly relevant for interpreting provisions of the Constitution. In many jurisdictions, one of the means to secure this generality is by informally or formally acknowledging some sort of stare decisis. Precedents have authority. Likewise, when acting as an arbiter on the permissibility of legislation the Council of State should aspire always to have consistent interpretations of constitutional provisions. This implies that successive advisory opinions that elaborate on the meaning of a certain constitutional provision seek to correspond with the Council’s interpretations stated upon previous occasions, both in substance and in methods employed. An unaccounted deviation from such substantive or formal precedents may undermine the Council’s authority. Om the contrary, by explicating its commitment to precedent, the Council demonstrates its reliability. The need for consistency should, however, not tilt the balance of predictable interpretation to unwavering rigidity. A meaningful change of circumstances may have occurred, or the Council may come to realize that it has thus far been on the wrong track. Modifications to the course require a solid justification. By providing such justification, an advisor emphasises that he takes both himself and his counterparts in the dialogue seriously.
10.5
More on the topic Strategies Derived from the Dialogue Metaphor:
- Strategies Derived from the Dialogue Metaphor
- Contents
- Kinship Between the Council’s Counselling and a Court’s Constitutional Adjudication
- Introduction
- References
- Judicial Supremacy Versus Parliamentary Sovereignty: Jeremy Waldron’s Criticism to Judicial Review
- References