Online conference 'Evidence for Policymakers'

Speech by Mr. Thom de Graaf, vice-president of the Council of State, at the online conference 'Evidence for Policymakers' on December 15, 2020.

I am honored to join you in your conference on the interesting and relevant topic of the contribution of scientific research, facts and information to the quality of governmental policy. I believe my appearance on your screens is a bit of an amuse-bouche for the main course of the panel discussing activating research from Evidence Informed Policy. If you allow me, in the next 15 minutes I will elaborate on the role of the Dutch Council of State in the process of policymaking through the instrument of legislation. In that process the Council of State makes a assessment of the purposes, the expected outcome, the effectiveness and the practicability of the proposed bill or order.

The Dutch Council of State historically consists of two separate bodies with different tasks, operating underneath one roof. The Administrative Jurisdiction Division is the country’s highest general administrative court, whereas the Advisory Division is government and Parliament’s highest and last advisor on legislation, constitutional matters and governance. In those two tasks of the two divisions the overall function of the Council of State is reflected: contribute to and guard the rule of law and the constitutional democracy. As you can probably imagine, these two tasks are separated in that order that State Councilors who act as justices cannot at the same time be advisors to government. Nevertheless it is fruitful that there is an exchange of experiences, opinions and knowledge between the two divisions.

As vice-president of the Council of State I am responsible for the management and governance of the Council and act as the chair of the Advisory Division. The Administrative Jurisdiction Division has its own chair. This ensures that the independent justices within this Division make their own decisions on court, without interference. That leaves only the question who then is the president of the Council of State. It is a bit odd to say the King is the president or the president is the King, so let me rephrase that: according to our constitution the King has the chair of the Council, a tradition going back hundreds of years. In modern times this means that the King, within his constitutional rights, is entitled to be informed about the work in the Council and he presides over the occasional and rare ceremonial meetings of the Council, for instance when the Princess of Orange, as will be the case next year, becomes of age and is officially welcomed within the Council as the heir presumptive. According to the law, the King takes no part in the work of one of the Divisions of the Council.

Although the judgments of our administrative jurisdiction branch are of the utmost importance for the Dutch administrative legal practice, I will focus on the duties of the Advisory Division. This chamber, consisting of twenty state councilors from various backgrounds, provides the government with independent advice on Bills introduced in Parliament by the government or individual members, all orders in council of government before they are promulgated, all treaties that the government puts before Parliament for approval in order to ratify and all other matters on which the government or one of the Houses of Parliament seeks the Council’s advice. In the assessment of bills and other requests for advice, an assessment framework is used, which is made up of three elements: policy analysis, legal issues and technical aspects are all estimated.

The first check of course is the technical one: is the bill well drafted from a legislative-technical point of view? Does it establish a logical, systematic regime and is it presented with an explanatory memorandum which consists of an adequate motivation?

The legal analysis consists of various questions. Obviously focusing on constitutional matters, international treaties, European law and human rights conventions, the Advisory Division checks whether the bill is compatible with higher law. But also whether the proposals are in accordance with the general principles of democracy and the rule of law. The latter also includes principles of good legislation, such as equality before the law, legal certainty, proper legal protection and proportionality. Also, it is relevant to check if the bill can be easily incorporated into the existing legal system.

Finally, the third part of our analysis focusses on questions of policy. Is the problem being addressed in the Bill a matter which can and should be resolved by legislation or are there other, possibly less drastic interventions conceivable? Will the proposed legislation be effective, efficient and balanced, regarding costs and benefits? Will it be possible to implement and enforce the legislation and to monitor its effects? This last question is known as the practicability check, for it assesses whether the proposed legislation can be implemented and executed adequately.

Each advisory opinion concludes with a so-called dictum, a final judgement in which the outcome of all aspects of the assessment framework are added up. If negative, the dictum will recommend against introducing the Bill or the order in council, or it may be recommended making substantial amendments before bringing the proposal further. In such cases, proposals from Cabinet ministers or state secretaries have to be put forward for a review to Cabinet, which decides whether or not the proposals are to be altered and put forward to Parliament. If so, the advice of the Advisory Division and the report of the responsible minister are made public and are together with the proposed bill sent to Parliament. If it concerns a so-called private bill by a MP, the same procedure is more or less applicable.

Traditionally the Council of State postulates its advice at the end of the legislative process, which makes it difficult for the government to implement major changes. We still do that, but at the same time we try to be more involved throughout the process of legislation. One of the ways to do so is by giving more requested advisory opinions. Both Chambers of Parliament, as well as the government itself, can ask the Council to shine its light on certain matters regarding legislation and governance, before it actually comes to legislation. This helps to recognize possible problems earlier in the process, which makes it easier to take these into account when legislative proposals are written. A good example of this was by the Second Chamber, our House of Representatives, requested advise on the necessary elements of future legislation concerning severe restrictions of people’s freedom rights in the containment of the Covid-19 pandemic, earlier this year. It helped Cabinet to propose more balanced new emergency legislation, and Parliament to assess the necessity of such drastic measures.

In addition, the Advisory Division is increasingly trying to involve the citizen’s perspective in our advisory opinions. We do so by adding criteria to the practicability part of the policy analysis. One of the most important criteria we added is the ‘doability’. Firstly, the questions arises whether ‘citizen’s perspective’ and ‘doability’ are not the same, or at least very much alike. My answer would be: Yes, but only partially. I would say the citizen’s perspective has a broader scope: it relates not only to the question of whether the proposed legislation is feasible for citizens, but also to the more general question of the impact of legislation on citizens. Depending on the legal framework, ‘the citizen’ is sometimes employee, sometimes migrant or sometimes accountant.

The citizen’s perspective in this broad sense does not always relate in direct sense to the question of practicability. However, when we speak about the citizen’s perspective from the specific assessment of practicability of legislation, we take the doability into account. We do so because it is of great importance to realize that legislation, and certainly complicated legislation, asks a great deal of citizens.

Let me point out some of the questions we tend to answer in this process. The first one being: have the target groups of the proposed legislation been identified adequately? Secondly we determine whether these target groups have been involved in the creation of the law and if so, in what way. Has attention been paid to the question whether the regulation is feasible for these citizens, for instance by tests carried out beforehand? Thereupon we map what mental burden the proposed legislation places on citizens, and we ask whether the cumulation of burdens is manageable. What are the consequences of inertia or inattention for citizens? Does the proposal take into account that The Citizen does not exist, but consists of all kinds of abilities, high and low intelligence, high and low social skills, high and low literacy? Is in that case any provision made for support and early warning? And ultimately the implementation costs for private organizations and citizens are taken into account.

As you perhaps know, our own assessment framework is not the only one used in the Dutch legislative process. Best known is probably the Integrated Assessment Framework, abbreviated as IAK, which is used by the ministries. With ministries having a broader task than the Council of State, the framework is more extensive as well.

Recently the OECD published the report ‘Ex Ante Regulatory Impact Assessment in the Netherlands’, in which the IAK is examined. Let’s take a closer look at some of the recommendations done by the OECD.

Firstly, the government should provide more clarity in the purpose and scope of the IAK, emphasizing more on the quality of legislation and less on reducing regulatory burdens and costs. In addition, there should be more regulatory supervision and control. IAK’s methodology should also be strengthened, for example through a standardized template. Resources must be used in a more targeted way, and finally, the link between IAK and the involvement of stakeholders must be strengthened.

Although it is not up to the Council of State to say much about what should happen with the recommendations, we do see it as our task, as a chain partner, to assist the government in the legislative process. The Council of State therefore sees opportunities to jointly improve the quality of legislation. Take, for example, OECD’s recommendation on the involvement of stakeholders. This relates to the Council’s advices on citizen’s perspective directly. Have the stakeholders of the proposed legislation been identified adequately, and have they been sufficiently involved in the legislative process? Especially as the Advisory Division becomes involved earlier in the legislative process by giving more requested (and sometimes unrequested) advisory opinions, our practicability assessment can contribute more ex ante to the quality of legislation.

Another interesting aspect of the OECD report is article 3.1 of the Accountability Act. The OECD advises the government to continue strengthening the links between IAK and ex-post evaluation of regulatory measures, by building upon the implementation of this article 3.1.

In October this year, the House of Representatives adopted a vote in which the Advisory Division of the Council of State was asked to pay explicit attention in our advises on proposals with a substantial budgetary component to the way in which the following elements are treated in the explanatory memorandum of the Bill: the objectives, effectiveness and efficiency pursued, the policy instruments that are used, and of course, the financial consequences for the national government and, where possible, for the social sectors.

In recent years, the Council of State has repeatedly drawn attention to compliance with these elements and these assessments have taken their place within the framework of our policy analysis. The Council therefore considers Parliament’s vote as an incentive to continue to do so and perhaps even in a stronger way and with a louder voice.

Quality must always be the objective, of course. The legislator’s primary task is to create good legislation, while the advisors and inspectors are entrusted with the task of calling in when quality has fallen short. However, it is not at all easy to assign an unambiguous meaning to this concept of quality.

Earlier the Advisory Division stated that the term ‘quality’, how relevant it is in itself, lacks an independent meaning. Quality implies an assessment of the suitability of ‘something’ in view of its function. For example: one could argue that a beautiful Rolls Royce that has to be repaired every thousand kilometers lacks quality, while an old Volvo that keeps on driving forever embodies it. I am by the way a Volvo-driver.

So what is to be understood as quality of legislation? Legislative quality presupposes an understanding of the function of legislation. Laws have various functions of course, and these are not always homogenous or mutually compatible.

They serve both to achieve a given objective and to set standards, while at the same time laws limit the measures required to achieve these objectives. Laws must therefore be flexible, to be able to function in an uncertain future, while still providing certainty in the present. This means that improving quality in one respect may mean degrading quality in another. Moreover; laws never stand alone, but take part in a legal order and a developing society in which they must keep on functioning.

This is why I am glad to see such enthusiasm for the subject of quality of legislation. As I just explained, the concept of quality does not have a univocal essence. Setting clear frameworks and parameters, inspired and powered by scientific research, helps not only defining the concept of quality, but also helps establishing and increasing it.

Ladies and gentlemen,

With that I conclude my remarks about the policy assessment function of the Council of State and the context in which that assessment is given. Hopefully this contributes to your discussions and conclusions during the upcoming panel and the rest of the conference.

Thank you very much.