The role of legislation and the legislative system in the

Netherlands

Jan A.B. JanusJakarta, 4-7 July 2011

The Netherlands

a decentralised unitary State

12 provinces

418 municipalities (1-1-2011)

Executive and legislative branches

• National level:Government (Queen and Ministers) and - bicameral - Parliament

• Provincial level:Royal Commissioner, Provincial Executive and Provincial States

• Municipal level:Mayor, Municipal Executive and Municipal Council

Sources of Law in the Netherlands

• Legislation (national and international)• International Treaties• Jurisprudence (Case Law)• Customary Law

• Legal Doctrine

Functions of the Laws

• Regulating - for the sake of order and peace in the society

• Protecting - by and against the Government interests

• Instrumental – to enable government to realise its policy

The Rule of Law

The core of the principle:

“all persons and authorities within the State, whether public or private, should be bound by and entitled to the benefit of laws, publicly made, taking effect (generally) in the future and publicly administered in the courts.”

- Tom Bingham

The principle of legitimacy

• The legal norms, the general rules, which bind the people, have been adopted by their own and freely elected representatives and have been laid down in Acts of Parliament (democratic principle).

The principle of legality

• The government is bound by the law and its actions need a basis in the Acts of Parliament, in any case, as far as these actions unilaterally impose legal obligations, curtail constitutional or legal rights of citizens or affect fundamental rights and freedoms (rule of law principle)

The legislative power

Article 81 of the Constitution:

Acts of Parliament shall be passed jointly by the Government and the States General.

Types of Legislation (1)

On the national level:• Acts of Parliament• Orders in Council• Ministerial Regulations• Regulations of independent administrative bodies

Types of Legislation (2)

On the provincial level:• Provincial bye-laws

On the municipal level:• Municipal bye-laws

On the Water Boards level:• Water Board bye-laws

Types of Legislation (3)

On the international level:

• Treaties• Other international legislation, in particular

primary and secondary legislation of the EU

Hierarchy of Legislation• - International law and the law of the European Union• - The Constitution• - Acts of Parliament• - Orders in Council• - Ministerial Regulations • - Regulations of independent administrative

bodies• - Provincial bye-laws• - Municipal bye-laws/Water Board Bye-laws

The law-making process (1)

• Preparation of the draft

• Decision Council of Ministers

• Advisory opinion of the Advisory Division Council of State

• Report to the Queen

The law-making process (2)

• Proposal of the bill to the Second Chamber

• Investigation by one of the committees of Second Chamber

• Plenary discussion and voting

The law-making process (3)

• Passing of the bill to the First Chamber

• Investigation by one of the committees of the First Chamber

• Plenary discussion and Voting

The law-making process (4)

• Promulgation

• Official publication of the Act in Parliament

Legislative activity – Second Chamber

Bills 2005 2006 2007 2008 2009 2010

Submitted 291 269 214 285 184 256MP initiated 9 23 9 14 6 8 Budget 79 71 73 104 80 108Put to a vote 183 290 262 236 204 257 (incl. bills submitted in previous years)

Delegation of legislative power: what?

Delegation of legislative power:

The transfer by a public authority of its power to lay down generally binding rules to another body, which assumes the responsibility for the exercise of this power.

Delegation: Why?

Delegation of legislative power is necessary for two main reasons:

• it is impossible to lay down in Acts of Parliament everything that has to be regulated;

• the need of flexibility and decisiveness often requires rules to be adapted in a swift manner.

Delegation: to whom?

• - the Government• - individual Ministers• - independent administrative bodies• - Provinces and Municipalities

• Questions:• - Government or Minister?• - National level or regional/local level?

The scope of the delegation

• The main elements of the regulations must in be laid down in the Act of Parliament.

• Any regulation delegating regulatory powers shall be as specific and accurate as possible in limiting the powers delegated

Quantitative significance of delegated legislation

• Number of Acts of Parliament, Orders in Council and Ministerial Regulations in force on January, 1st, 2004-2010

• • 2004 2005 2006 2007 2008 2009 2010• • Acts of P 1793 1873` 1914 1745 1734 1759 1806• • Orders i C 2654 2698 2517 2483 2361 2337 2292• • Min Reg7796 6120 5743 5700 5724 5350 5379