The Council of State’s task in the field of legislation
The government must seek the Council of State’s advice on the following matters:

In addition to these cases where the government is obliged to consult the Council of State, it is entitled to seek the Council’s advice whenever it considers it necessary. Under the Council of State Act, the Council may also give the government unsolicited advice. The Government is not obliged to act on the Council of State’s recommendations, but it is obliged to state its own position in its response to each recommendation.

As soon as the government has finalised its response, it is published, together with the Council’s advisory opinion. In the case of a draft bill, the two documents are included in the parliamentary papers, making it easy for members of parliament to consult them when examining bills. Members of parliament, too, have the right to introduce bills. These must also be submitted to the Council of State before being debated. Parliament can therefore consult the Council’s advice in the case of both government bills and private members’ bills. In the Netherlands, it is rare for members of parliament to introduce bills. In the past year, the government submitted two hundred and twenty-four bills to the Council, whereas parliament only submitted seven. The Council of State sees it as its duty to watch over the quality of constitutional democracy and the rule of law in the Netherlands and in particular the quality of legislation. Legislation plays a vital role in a constitutional democracy – it can be regarded as the fulcrum on which the state rests. It is the principal force for order in society; it empowers and at the same time limits public administration and it provides the framework for the legal protection of the individual as well. Bad law undermines legal certainty, exposes the vulnerability of public administration and makes it difficult for the judiciary to function properly. The Netherlands is a constitutional democracy governed by the rule of law. This means that both the legislative and executive branches of the state are subject to the law in performing their duties. In a constitutional democracy, there is a constant need for vigilance in monitoring the quality of legislation, governance and justice and the interplay between them. Legislation, like everything government does, is subject to the influence of various requirements, factors and interests. High-quality legislation is achieved only when a balance has been struck between all of these, and when all the technical requirements have been met.

Quality, however, is not a clear-cut concept. It entails a judgment about whether something is appropriate for its eventual function, and this presupposes a clear grasp of that function. Legislation fulfils various functions simultaneously. It serves to achieve particular goals, and to regulate and delineate the measures required for that purpose. Since the future is uncertain, the law must be flexible, while responding to the concerns and debates of the present. It is meant to protect the public, provide clear instructions as to implementation, and offer guidance on enforcement and oversight. The law’s diverse functions, the complexity of the problems requiring a solution and the interconnectedness of rules increase the demands that must be placed on legislation. Good legislation can only be achieved by means of a thorough analysis of the problems a law is supposed to solve, a realistic assessment of the administrative options, a good knowledge of the requirements to be met, careful preparation, evaluation and ‘real world’ feedback. All this is necessary, but not always sufficient. Every piece of legislation assumes that social reality and its development can be captured in advance by a general set of rules – but this assumption no longer holds true. An increasingly diverse society, such as Dutch society is today, means a decline in shared contexts, generally accepted views and common interests. Since it is becoming more and more difficult to lay down norms for everything in advance, the application of the norms in the course of implementation often determines the content of the legislation. This means that it is not enough to assess a law after it has entered into force; it must be evaluated beforehand as well. The way we deal with faulty legislation probably has more impact on the quality of legislation as a whole than our efforts to prevent the enactment of ineffective laws in the first place.

Review
The Council of State subjects draft legislation to three types of review: a policy-related review, a legal review and a technical review. The policy-related review examines whether the draft legislation can help to solve or reduce the problems which prompted the legislation to be drawn up in the first place. Does it meet the wishes of government and society? Is it sufficiently in line with existing policy and does it continue on the same course? The legal review is twofold:

The technical review involves examining whether the proposed legislation meets the customary drafting standards. This is not the place to examine all these criteria in detail and provide illustrations drawn from recent experience. Instead, I will confine myself to an outline of the policy-related review and the legal review.

Policy-related review
First, the Council of State considers the problem which the draft regulation intends to solve, who is affected by it, and whether action should be taken by the authorities or by someone else. The basic question here is whether the bill is necessary. Unnecessary legislation clogs up and obscures the system, leading to complications in applying the law and uncertainty over people’s legal status. It therefore tends to undermine the authority and durability of the law. Second, the Council considers the ends and means. The watchwords here are effectiveness, efficiency and proportionality. Are the means proposed sufficient to tackle the problem? Is there enough political and public support? Is the relationship between the means and the end reasonable and proportionate? Third, the Council considers whether a regulation can be enforced, implemented and scrutinised. The first two points are essential when it comes to legislation that aims to change the behaviour of people, companies, institutions or even the government itself. Regulations that are difficult or impossible to implement or enforce are token legislation, no more than a dead letter. This is unacceptable from the point of view of both policy and the rule of law. Questions on the enforceability and implementation of a regulation may arise for various reasons.

Legal review
The review in the light of higher law involves assessing the proposed legislation’s compatibility with, for example, the Constitution, the European Convention on Human Rights, the International Covenant on Civil and Political Rights and the law of the European Union. (More and more Dutch legislation now derives from European legislation.) Proposed legislation is also reviewed in the light of unwritten law, such as the general requirements of a constitutional democracy and the rule of law, the principles of constitutional law such as the primacy of the legislature, which limits the scope for delegating regulatory powers, and general legal principles, particularly legal certainty, adequate legal protection and proportionality. With regard to the primacy of the legislature, an issue that frequently recurs in the Council’s recommendations is the limits to be placed, in Acts of Parliament, on the scope for delegation and subdelegation of secondary legislation to the government or to individual ministers. The Council applies several basic principles in this connection: - First, substantive provisions on the subject of the Act should be incorporated in the Act itself. - Second, regulatory powers should preferably be delegated to the Crown (to be exercised through an order in council) in the interest of quality guarantees, such as adoption by the government and recommendations from the Council of State. - Third, delegation of regulatory powers to a minister should be confined to administrative regulations providing further details, or regulations that require frequent amendment or which have to enter into force without delay. Examining draft regulations in the light of the unwritten principles of good legislation is a significant part of the Council’s review. The Council most frequently refers to legal certainty. This principle means that the law must be clear and comprehensible, so that individuals and government know what they may or may not do. It also means that the trust people place in government legislation and policy should not be abused.

Added value of review by the Council of State
If the Ministry of Justice and other ministries are already devoting a lot of attention to the quality of legislation, what is the added value of the Council of State’s review? The added value of the three types of review by the Council of State lies mainly in the consistent application of the same legal and policy principles. The Council’s importance derives from its role as the final provider of general, independent and public advice. Allow me to expand on this. Drafting legislation is a process in which different perspectives and conflicting interests vie for the upper hand. In such a situation, it is not always possible to strike a proper balance; policy is not always consistent or harmonised with other policies; the facts are not always presented clearly and accurately; and the importance assigned to various arguments is not always proportionate to their actual value. As the final advisor, the Council of State has access to all the documents involved in drafting a bill and can use them to assess the result. It can determine how the various interests and points of view have been taken into account. It can assess the weight of the arguments put forward, to see if the decisions incorporated in the draft bill and explained in greater detail in the explanatory memorandum are clear and well supported. And parliament can take the Council’s findings into account when making its decision. As a general advisor, the Council has a bird’s-eye view of all relevant legislation. It can check to see if policy is coordinated in the areas that are the responsibility of the various ministries, and it can apply the same quality standards in its overall review. As an independent advisor, the Council is not bound by any party political influence. The fact that it draws its members from different social and political groups guarantees a range of opinion, frank discussion and a balanced consideration of diverse viewpoints. The Council is therefore able to devise a set of criteria of its own, taking account of changing constitutional, political and social requirements. As a public advisor, the Council makes its work available not only to the government but also to parliament. It can contribute to both political and public debate, and its reports are open to scrutiny by parliament, academics and the people of the Netherlands as a whole. Thank you.