Contact with the legislature
The relationship with the legislature is very important to the Supreme Court’s development of the law. Our society continuously gives rise to legal questions to which statutory law does not yet contain any clear answers. This is because it is impossible for the legislature to anticipate every possible question that may arise later. Statutory law is not a troubleshooting guide that contains a fixed list to solve all possible disputes. Generally, statutory law only provides a general outline. By interpreting statutory law in a certain manner, courts can also provide clarity in novel situations, such as when that law does not yet provide clarity about new technical or social developments.
The legislature and the courts are jointly responsible for establishing feasible and balanced rules of law. They are sometimes even referred to as ‘partners in law-making’. Although in most cases the legislature is far and away the frontrunner when it comes to making the law, that phrase has more than a kernel of truth in it. The Supreme Court, for example, can issue advisory opinions on bills. It can be involved at the front end, in which respect it usually exercises a great deal of restraint. The president and procurator general issue these advisory opinions on certain bills at the request of the Minister of Justice and Security. Bills that may affect the organisation of the legal system regularly prompt requests for such advisory opinions. In such cases, the President of the Supreme Court and the Procurator General of the Supreme Court issue joint advisory opinions.
Advisory opinions on bills
In 2019, the President and Procurator General issued 3 substantive advisory opinions (in 2018: 5) on bills. The advisory opinions regarded:
- the bill to modernise the Dutch Code of Criminal Procedure;
- an amendment to the Judicial Officers (Legal Status) Decree relating to the reporting of financial interests and securities transactions by members of the judiciary; and
- an amendment to the General Administrative Law Act, the General Tax Act, the Judiciary Organisation Act and the Judicial Officers (Legal Status) Act in connection with amendments in the interest of the uniformity and development of law by the highest courts.
Alerts to the legislature
On occasion, courts rendering judgments in specific cases encounter flaws in the laws on which they must base their decisions, flaws which the courts themselves cannot resolve because this would exceed the scope of their duty to develop the law. In such cases, the legislature may be alerted. In recent years, the Supreme Court has been more consciously and systematically alerting the legislature in its judgments, as well as referring to those judgments in a separate section of its annual report. In the past, this was usually done behind closed doors. Now, if the Supreme Court believes a flaw to be significant enough, it brings it more explicitly to the legislature’s attention. Society benefits more from having these alerts be visible rather than kept behind closed doors, particularly when the points meriting attention are of a technical legal nature, such as gaps in statutory law, rules that contravene higher-ranking rules, unclear regulations, or regulations that are not sufficiently harmonised with one another. The Supreme Court limits these alerts to issues it encounters itself when adjudicating cases; it is not an entirely new duty. The Supreme Court does not pretend to be the overall supervising authority when it comes to legislative quality. That is the responsibility of the legislature itself. Neither is it the Supreme Court’s intention to make political or policy-related choices. This means that the Supreme Court will generally not suggest how the defect in a law or regulation may be remedied. These choices fall within the legislature’s purview.
In 2019, the Supreme Court sent a message to the legislature in 4 judgments, compared to 10 in 2018 and 14 in 2017.
Effective and respectful communication is needed for the legislature and the courts to perform this shared duty well (see also the ‘Brief Review of 2019’). Having both parties step out of their respective ivory towers and know what is happening on the shop floor, as it were, adds a certain value in this respect. Fortunately, the Supreme Court and the Procurator General of the Supreme Court work with justices, advocates general, and research assistants who are experienced legislative lawyers. It is equally fortunate that their knowledge and experience can assist with the legislative process.