Contact with the legislature
The president and the Procurator General can advise on legislative proposals. They are involved at an early stage, and usually exercise a great deal of caution in order to avoid pre-empting cassation proceedings on the interpretation and application of future legislation. As a rule, advice is given on proposed legislation relating to the organisation of the judicial system and coordination within it, and on changes to procedural law. These legislative opinions are politically neutral. The Minister of Justice and Security requests opinions from the president and the Procurator General and they are published on the Supreme Court’s website.
In 2020 the president and the Procurator General published four legislative opinions on the merits of proposed legislation, compared with three in 2019. The 2020 opinions (full Dutch text available at: Wetgevingsadviezen president en procureur-generaal – Hoge raad) covered the following subjects:
- Opinion and Response of the Supreme Court and the Council of State to the Groningen Earthquake Damage (Temporary Provisions) Bill, proposed by House of Representatives members Tom van der Lee and Matthijs Sienot
- Opinion on the Groningen (Temporary Provisions) Bill
- Opinion on the draft Bill amending the Judicial Officers (Legal Status) Act
- Opinion on the draft Kingdom Bill amending article 118, paragraph 1 of the Constitution.
Signals to the legislature
Since 2017 the Supreme Court’s annual report has included an overview of judgments that draw the legislature’s attention to a specific problem. In 2020 the Supreme Court did this in eight judgments. There were four such judgments in 2019, ten in 2018 and 14 in 2017.
No systematic approach is taken to the selection of such judgments. The overview is provided in light of the Supreme Court’s tasks of promoting the uniformity and the development of the law and offering legal protection. The executive, legislative and judicial branches of government each have their own responsibilities under law when legislation is drafted. They all share an interest in effective legislation that offers legal certainty to those seeking justice and to society as a whole. In serving this interest they also interact with each other. As part of that interaction, the Supreme Court may decide to alert the legislature to technical legal issues concerning the application of legislation that arise in the cases it hears. Furthermore, this can help those involved in the administration of justice in society to recognise what legal and technical problems the Supreme Court encounters in practice. Sometimes the Court can provide a solution to such a problem in its ruling, while remaining within the boundaries of its tasks. In other cases the judgment will indicate that this is in fact impossible under the applicable law, particularly where there are gaps in legislation, rules that conflict with higher law, or regulations that are ambiguous or not properly aligned with each other. Signals from the Supreme Court to the legislature are confined to questions that the Court encounters in its case load. They are unrelated to considerations that are not the business of the judiciary, such as choices of a political nature.