The Council of State must be overhauled due to a “principal carelessness in the constitutional system”, the parliamentary inquiry committee on the Benefits Affair advises.
It is a casual sentence in the report, with the harsh title Blind to people and law that clearly wants real reforms. The advice to separate the judiciary and advisory departments of the Council of State is an exception evergreen also a bone of contention. In the world of administrative law, it immediately evoked a wave of mixed feelings. Ranging from ‘no, not again!’ until ‘finally the time has come’.
This High Council of the State, traditionally rooted in two of the three state powers, occupies a unique hybrid position in the state system. The administrative judges of the Council of State are not ‘members’ of the Judiciary. The independent advisors, although often ‘politically’ appointed, are also not ‘members’ of the Board. The Council of State is independent, stands at a distance from the government, but does have the head of state as chairman and figurehead. The vice-president actually responsible (Thom de Graaf) has been politically appointed.
In short, a constitutionally unique species, this Council of State dated 1531. Not very popular with the administrative judges of the ‘ordinary’ judiciary, who often feel a psychological distance with the ‘Kneuterdijk’ where the Council is located. Over the past two decades, the Council of State also had increasing difficulty explaining itself to critical citizens. Can that be trusted, together under one roof, testing bills against the constitution and treaties and at the same time resolving conflicts with (and between) governments? Moreover, often by the same state councils, who were also politically appointed for a long time. It didn’t help that for a long time only candidates from government parties were welcome. Not from the opposition.
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In particular, the system of dual appointments, both as advisor and administrative judge, came under increasing criticism. Also at the European Court of Human Rights. In 2010, the government put an end to this, albeit rather gradually. Only this year will the last state council resign its dual appointment and limit itself to advising.
For years, the response to criticism, now also from the committee of inquiry, was that advice and justice under one roof actually ensures cross-fertilization: rapid mutual communication about defective laws, both from the pipeline of the States General and from the judiciary. Which actually has a strengthening effect.
The committee of inquiry has now opted for the constitutionally ‘pure doctrine’ in this discussion that has been going on for years. Such a dual function can “raise questions regarding the independence and impartiality of the Council of State and create constitutional tensions, including with other (supervisory) authorities.” It therefore recommends that the 37.2 administrative judges and their 226.1 lawyers, the so-called ‘state officials’, join together to form a separate court. And to become part of the regular judiciary. Just like the three other ‘highest administrative judges’, the Central Appeals Tribunal, the Business Appeals Board and the tax chamber of the Supreme Court. A quartet of highest administrative judges sees the committee as undesirable ‘fragmentation’, which is also not a new insight in administrative law.
If there is now a split, a consolidation or merger round between those four courts seems inevitable. This was also tried under Rutte II in 2016, but without success. The ‘split’ of the Council of State that was then included in the coalition agreement turned out to amount in practice to a takeover of the CBB by the Department. At the time, this led to internal squabbles, the outflow of judges from the CBB and serious damage to mutual relations.