About the report
The Rli notes that the law plays a prominent role as regards the living environment, but it does not regard that as a problem. Nevertheless, it does see a number of problematic aspects where applying the law is concerned. The fact is that safeguarding the law and following it through have become too one-sidedly the purview of the courts. But safeguarding the rule of law and respecting the legal rules are just as much a task for the legislature (the Government and Parliament) and the executive (the Government). The Rli advocates rebalancing the way the roles are divided between the legislative, executive, and judicial powers.
The quality of legislation and regulations for the living environment must be improved
Greater attention must be paid to the quality of legislation and regulations ’at the front end' of the legislative process. An Adviser General should therefore be added to the Advisory Division of the Council of State. He or she would have the task of indicating whether a parliamentary bill is in line with the Dutch Constitution, with EU law, and with the European Convention on Human Rights (ECHR). Establishing the post of Advisor General can be accomplished in the short term without any constitutional amendment being required, unlike setting up a Constitutional Court as envisaged in the new Cabinet’s Framework Coalition Agreement 2024–2028. The quality of the judicial advice provided by the ministerial departments that draft legislation also needs to be enhanced.
Judicial disputes about living environment issues can in some cases be avoided
Politicians – i.e. our representatives in Parliament, provincial and municipal councils, and the boards of the water authorities – also have a major responsibility to consider the legal consequences ‘at the front end’ of legislation and regulations. Particularly when rules are involved that arise from EU environmental law or international conventions, politicians appear time and again to disregard the risk of judicial disputes. The Rli recommends that national implementation of EU and international legislation, rules, and conventions should not be limited to merely complying with the minimum required. This will reduce the likelihood that members of the public or special-interest groups will take the matter to court to demand – often successfully – that the authorities comply better with the EU and/or international rules.
Read the press release 'Cabinet and parliament fall short in safeguarding the rule of law'
For more information about the advisory report, please contact Folmer de Haan (project leader): f.w.dehaan@rli.nl or +31 (0)6 4615 2496.