Advisory Opinions of the Dutch Council of State as Contributions to a Constitutional Dialogue

Abstract

AbstractSince the inception of the independent Kingdom of the Netherlands, the Council of State has been recognized by the Constitution as an actor in legislative procedures. The Council renders advisory opinions on almost all bills that are submitted to parliament and to all orders in council before they receive royal assent. Since no official criteria have been set for the Council to use when delivering its advice, the institution has developed its own assessment framework. Traditionally, conformity to the national Constitution has always been an important part of that framework. The Council’s opinions are especially relevant since, absent the possibility of courts reviewing the constitutionality of acts of parliament, they are the next best thing to urge the Dutch legislature to respect the national Constitution. In this chapter, I propose to recognize some parallels between what the Council does and what typically happens when a court is called upon to perform constitutional review. My proposition is that these parallels 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.KeywordsAdvisory opinionscomparative lawconstitutional dialogueconstitutional reviewCouncil of Statelegislative procedure