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  • Anglais
  • Néerlandais
  • Public law
  • 09-04-2020

It is not an amendment to the Constitution itself that is under discussion, but rather the way in which such an amendment can be made. The 'constitutional revision procedure', as it is called.

A bill is currently pending to amend this constitutional revision procedure. The essence of this proposal is that a bill to amend the Constitution must be submitted to the newly elected House of Representatives for a second reading as soon as possible after the elections and must also be dealt with by this new House of Representatives. The purpose of this proposed change to the procedure is to prevent the postponement of constitutional procedures, whether for political or other reasons, and to ensure that constitutional changes are implemented more quickly (but no less carefully). 

In this blog, we explain the current procedure and the proposed changes to the constitutional revision procedure.

Background to the bill

In short, the constitutional revision procedure means that parliament (the States General) has to decide on a constitutional amendment initiative twice, i.e. in the first and second 'readings'.

This is a more stringent procedure than that for amendments to ordinary acts, for which a decision is taken only once by parliament. The idea behind this is that the Constitution contains the most important rules of our form of government and it should therefore not be possible to change it too easily. 

In practice, the constitutional revision procedure has been the subject of much debate for years. This unnecessarily complicates and delays the examination of private member’s bills to amend the Constitution – so much so, in fact, that a proposal adopted by parliament at first reading often remains on the table for years and, in a few cases, even withstands several parliamentary terms (Explanatory Memorandum, Parliamentary Documents II, 2019/2020, 35 419, no. 3, p. 2-3).

The discussion focuses on the interpretation of Article 137 of the Constitution and, in particular, on the issue of

  • at which point a private member's bill must be submitted for a second reading;
  • who has to do that; and
  • whether the second reading should also be completed by the House of Representatives which was elected after the bill was adopted at first reading.

In order to settle this matter, a number of suggestions for amending the constitutional revision procedure were made by a Letter to the House of 21 February 2019 (Parliamentary Documents II, 2018/2019, 31 570, no. 35). These resulted in a bill (Parliamentary Documents II, 2019/2020, 35 419, no. 2), which – after the Internet consultation – was submitted to the House of Representatives on 23 March 2020 (hereafter: "the Bill"). The opinion of the Advisory Division of the Council of State (hereafter: "the CoS") on the Bill of 20 February 2020 also became public as a result (Parliamentary Documents II, 2019/2020, 35 419, no. 4). 

The current constitutional revision procedure

Under the current regime, the constitutional revision procedure is as follows: 

  1. The government or one or more members of the House of Representatives submit a proposal to amend the Constitution.
  2. The CoS advises on this bill.
  3. The House of Representatives and the Senate adopt this bill at first reading by a simple majority. Subsequently, the bill is also referred to as the 'proposing bill' ('overwegingswet' or ‘verklaringswet’). This proposing bill is published in the Dutch Bulletin of Acts and Decrees.
  4. The House of Representatives is dissolved and elections are held. The idea behind this is that voters are able to express their views on the proposed changes. 
  5. The bill adopted at first reading is submitted to the new House of Representatives. 
  6. The CoS advises (again) on the bill, amended or otherwise.
  7. The House of Representatives and the Senate adopt the bill at second reading by a two-thirds majority.
  8. The bill is signed by the King and one or more ministers or state secretaries.
  9. The legislative change is published in the Bulletin of Acts and Decrees. The amendment enters into force immediately.

The envisaged amended constitutional revision procedure

The Bill aims to clarify the second reading (steps 4 and 5 above). The proposed amendments – all of which should be included in Article 137(3) of the Constitution – are as follows.

NB The text of the current Article 137 of the Constitution and the proposed amendments can be found at the end of this blog. 

I - At what point should a proposal to amend the Constitution be submitted for a second reading?

The day prior to the day of the elections (voting day) to the new House of Representatives is considered to be the deadline on which the private member's bill (the proposing bill) must be published in the Bulletin of Acts and Decrees (Explanatory Memorandum, Parliamentary Documents II, 2019/2020, 35 419, no. 3, p. 9). Subsequently, the newly elected House of Representatives takes up the second reading.

II - Who initiates the procedure for a proposal to amend the Constitution at second reading?

The Bill does not provide for this. The CoS has previously suggested to the House of Representatives that it should stipulate in its Standing Orders that private member's bills should be submitted ex officio by the President of the House of Representatives on the first day of the meeting of the new House of Representatives for a second reading (Parliamentary Documents II, 2017/2018, 32 334, no. 11). The submitters of the Bill agree with this (Explanatory Memorandum, Parliamentary Documents II, 2019/2020, 35 419, no. 3, p. 5).

It is interesting to note that the proposal for a general revision of the Standing Orders of the House of Representatives submitted by the Van der Staaij working group on 30 October 2019 provides for a different arrangement (Parliamentary Documents II, 2019/2020, 35 322, no. 4). The proposal of the CoS to designate the President of the House of Representatives as the person with the ex officio power to submit private member's bills for a second reading is dismissed with the remark that this is considered less appropriate in view of the President's neutral position.

Instead, the following is proposed: first, the original initiators (or their party replacements) are given the opportunity to submit a second-reading proposal. If they fail to do so, other members will be given the opportunity to do so. Failing this, the President of the House of Representatives may, after six weeks, call upon the House of Representatives to submit a second-reading proposal. If this has not resulted in such a proposal after two weeks, the Minister most involved will have the possibility to do so.

The question is whether this – apparently – time-consuming procedure will provide the desired clarity.

The PvdA party, among others, asked questions about this (Parliamentary Documents II 2019/2020, 35 322, no. 7, p. 16). 

III - Should the second reading also be completed by the House of Representatives elected after the adoption of the bill at first reading?

Yes. The Bill clarifies that only the House of Representatives elected after publication of the private member's bill (the proposing bill) in the Bulletin of Acts and Decrees can deal with that bill. The idea behind this is that voters in the elections to this new House of Representatives were able to take into account the constitutional amendments currently before them.
 
If the new House of Representatives does not decide on the private member's bill during its term of office, it will lapse by operation of law. In other words: only the House of Representatives elected immediately after the publication of the proposing bill is authorised to debate and adopt the bill at second reading.

The idea behind this is that the (apparent) practice that the government and/or the House of Representatives postpones the second reading for the reason that a 'more favourable' composition of the next House of Representatives is envisaged, is highly undesirable (Explanatory Memorandum, Parliamentary Documents II, 2019/2020, 35 419, no. 3, p. 2). Contrary to what the CoS previously advised, no room has been left for special circumstances, as this would not provide the desired constitutional clarity and, moreover, would not be considered necessary if everyone adhered to the new division of tasks. The CoS has indicated that it agrees (CoS opinion, Parliamentary Documents II, 2019/2020, 35 419, no. 4, p. 2).

In addition, under the Bill, the obligatory constitutional revision dissolution (in accordance with the letter of the law) will lapse as a result of the adoption of a proposal at first reading (current Article 137(3) of the Constitution). This gives substance to the practice, which has existed for decades, that the House of Representatives will no longer be dissolved separately as part of a constitutional revision, but that the next election to the House of Representatives will also serve this purpose. The new House of Representatives does not have to take a decision before the government has been formed. As a result, it is possible that decision-making on the constitutional proposal will be part of the negotiations within the framework of the government formation and vice versa (Explanatory Memorandum, Parliamentary Documents II, 2019/2020, 35 419, no. 3, p. 5). In principle, therefore, a proposal to amend the Constitution will remain pending until then.

If, under certain circumstances, a fast-track procedure is required, Article 64 of the Constitution offers the possibility of dissolving the House of Representatives earlier.

Concluding remarks

Finally, a concluding remark on two subjects that are not (directly) regulated by this Bill, but are related to the review of the constitutional revision procedure:

  1. the advisory role of the CoS and
  2. another bill proposing constitutional amendment initiatives to be dealt with jointly by the House of Representatives and the Senate. 

1. advisory role of the CoS

At present, the CoS also expresses its opinion on constitutional amendment proposals at second reading.

During the parliamentary debate, the question was raised as to whether it would not be better to omit this: the CoS often expresses a neutral opinion at second reading, because there are no or only minor changes compared with the bill at first reading, or suffices with comments of a procedural nature. Abolishing this mandatory advisory role would make it possible to monitor deadlines more effectively, while the possibility of obtaining an own-initiative opinion from the CoS would still exist.

The initiators of the Bill themselves state that if the Standing Orders guarantee that the amendment proposal will be submitted to the CoS at second reading as soon as possible after the House of Representatives has been dissolved, there will be no need to reconsider this mandatory advice (Explanatory Memorandum, Parliamentary Documents II, 2019/2020, 35 419, no. 3, p. 5).

In its opinion on the Bill, the Council of State adds that, although it is correct that it usually issues a positive opinion on second-reading proposals or restricts itself to procedural comments, this need not always be the case. In addition, procedural comments – including comments on the Bill in question – may also be of great importance. In the opinion of the CoS, the alternative put forward by the government – a request for an opinion if the government or parliament see reason to do so – leads to a discretionary power that does not fit in well with the nature and importance of the subject of constitutional revision (CoS opinion, Parliamentary Documents II, 2019/2020, 35 419, no. 4, p. 2-3).

2. second reading by the Senate and the House of Representatives jointly

Parallel to the present Bill, another bill is pending at the time of writing of this blog, which proposes that the second reading of a constitutional revision bill should not be dealt with by the House of Representatives and the Senate separately, as is currently the case, but by the Houses (States General) jointly.

The idea behind this is that at second reading, a situation may arise in which a limited minority of the indirectly elected Senate prevents a constitutional amendment that is supported by a large majority (of at least two-thirds) of the members of the House of Representatives who are directly elected in elections that are partly intended to enable voters to influence that constitutional amendment. In the opinion of the initiators, this is undesirable and could be avoided if the two Houses were to vote jointly on the private member's bill. 

In anticipation of this proposal, an additional article (Article V) has been included in the Bill under discussion here for reviewing the constitutional revision procedure, which provides for the situation that the two Houses are jointly responsible for the second reading.

** This second bill and the accompanying Explanatory Memorandum can be downloaded via the Internet consultation (completed on 9 October 2019). The text of Article V included in the Bill in this context can be found at the end of this blog.

Appendix

The bill seeks to amend Article 137 of the Constitution as follows:

Article 137

  1. An Act of Parliament will be passed stating that an amendment to the Constitution in the form proposed will be considered.
  2. The House of Representatives may divide a Bill presented for this purpose into a number of separate Bills, either upon a proposal presented by or on behalf of the King or otherwise.
  3. The House of Representatives elected after the publication of the Bill referred to in the first paragraph will consider at second reading the proposal for amendment referred to in the first paragraph. If this House of Representatives does not decide on the proposal, it will lapse by operation of law. Once it has adopted the proposal, the Senate will consider it at second reading. The two Houses may adopt the proposal for amendment only by at least a two-thirds majority of the votes cast.
  4. The House of Representatives may divide a Bill presented for this purpose into a number of separate Bills, either upon a proposal presented by or on behalf of the King or otherwise, by at least a two-thirds majority of the votes cast."

In addition, it is proposed to add the following additional article to the Constitution:

Article V

  1. Article 137 of the Constitution, as it read prior to the entry into force of this article, will remain in force with regard to a proposal to amend the Constitution of which the Bill that states that it will be considered, has been published before the date on which the House of Representatives is chosen that is sitting on the date of entry into force of this article. 
  2. If an amendment to Article 137 of the Constitution has entered or is entering into force that is intended to allow the States General to consider in a unified assembly at second reading a proposal for an amendment to the Constitution:

a. the third paragraph of Article 137 of the Constitution will read as follows:

3.    After the House of Representatives elected after the publication of the Bill, as referred to in the first paragraph, has met, the States General will consider in a unified assembly at second reading the proposal for amendment, as referred to in the first paragraph. They may adopt it only by at least a two-thirds majority of the votes cast. If, during the term of office of the House of Representatives referred to in the first sentence, they fail to take a decision on the proposal, this will lapse by operation of law.

b. the fourth paragraph of Article 137 of the Constitution will lapse, with the renumbering of the fifth paragraph as the fourth paragraph, and in the fourth paragraph (new) 'The House of Representatives may' will be replaced by 'The States General in a unified assembly may'.

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