How an Act becomes law
Usually, an Act of Parliament is a response to a problem that demands government action. All sorts of people and organisations may be involved in placing an item on the political agenda: political parties, ordinary citizens, interest groups, the media, experts (inside or outside the public sector) and, of course, the members of government. The decisions and directives of the European Union are another factor, with ever greater consequences for national legislation.
Legislation is of only minor importance in some areas, such as foreign relations. In others, such as taxes or social security, it is central. When major shifts in policy take place that do not require new legislation, a policy document is drawn up to keep the House of Representatives informed.
Before drafting a bill, ministry officials often look into what forms of expertise, and what opinions, about the issue at hand are present in the Netherlands. Public or private research institutes might be commissioned to conduct investigations. Permanent or temporary advisory committees might be asked for advice, or might submit recommendations on their own initiative. Interest groups might be consulted (in some cases via permanent consultative bodies) and broad public debate could take place. This kind of debate is sometimes conducted on the Internet.
Other ministries, too, often have to be consulted, through one of the permanent interministerial committees that serve as 'antechambers' to the Cabinet. After this preparatory stage, the minister responsible for the bill deliberates with his fellow ministers. Any disagreements that could not be resolved by officials then have to be worked out. This process begins in one of the Cabinet's permanent subcommittees and then continues at a full Cabinet meeting.
Members of the House of Representatives may also introduce a bill, which they will then be responsible for defending. In most cases, however, the first step towards new legislation will be taken by one or more ministers, depending on the scope of the issue.
The birth of an Act
An Act goes through several, often overlapping, stages before becoming law. We can distinguish the following seven:
- Making plans
- Drafting a bill
- Advice from the Council of State
- Passage through the House of Representatives
- Passage through the Senate
- Publication on Overheid.nl
As an illustration, let us look at the Opening Hours (Shops) Act enacted in 1996, since it affected just about everyone in the country.
The Opening Hours (Shops) Bill originated from agreements made during the formation of the first "purple" coalition of social democrats and free-market liberals, which came to power in August 1994. The coalition agreement pledged to promote free competition, deregulation and high-quality lawmaking. In other words, the new government felt that there were too many rules, not enough room for the economic forces of supply and demand and a need for better legislation.
An interministerial working group made up of officials from all the relevant ministries looked into how the old Act could be updated. Its advice to the Cabinet subcommittee on market forces was to promote the freedom of the market by letting shops decide on their own opening hours. It recommended liberalisation, a hands-off policy giving greater liberty to the individuals involved, as the most appropriate policy given the social, economic and cultural shifts in Dutch society. The demand for differentiation and flexibility in opening hours had grown. The working group suggested that some kinds of shops, such as grocery stores, could have special opening times and that opening times could vary in different parts of the country, at least on certain days. It also predicted that the new rules would boost the economy.
On 19 December 1994, the Minister of Economic Affairs sent a letter to the House of Representatives declaring his intention to submit a bill on shop opening hours. At that point, he had already consulted with the Socioeconomic Council (SER), the Association of Netherlands Municipalities (VNG) and the Equal Opportunities Council.
Drafting a bill
On 28 June 1995, the House of Representatives received the Opening Hours (Shops) Bill and a set of accompanying documents. In a Royal Message, the King presented the bill to the House. In the bill's introductory section, or considerans, the Minister of Economic Affairs explained his reasons for introducing the bill. Before a minister introduces a bill, he must write an explanatory memorandum and respond to advice from the Council of State.
The memorandum also described the history of legislation in this area. The previous Act dated from 1976, and set a maximum of 52 hours a week. The last time opening times had been specified was in 1951: between 5 am and 6 pm from Monday to Saturday, with an obligation to stay closed on Sunday. The memorandum dealt at length with the consequences of the planned amendments for different types of shops, for the retail sector and so forth. It also summarised the relevant rules in other member states of the European Union.
In brief, the bill proposed the following system: - no ceiling on opening hours per week - shops may be open between 6 am and 10 pm from Monday to Saturday - in general, shops must stay closed on Sundays, but each year, municipal authorities are allowed to designate Sundays and holidays when shops may open for business.
Advice from the Council of State
The advice from the Council of State included comments and proposals for amendments to the bill and the explanatory memorandum. These touched on ten different points; for instance, the Council felt that more attention needed to be paid to the issues of lost revenue and workload.
The Council felt that the government should give special consideration to the views of shopkeepers and the SER. With regard to opening on Sundays, the Council pointed out that this would probably make it impossible to ensure that Sunday remained a day of rest, as guaranteed by law. The Council also noted great public demand for shops to be open on Sundays, and predicted that the bill would probably lead to competition between municipal authorities to attract Sunday customers.
In his response to the Council's advice, which was sent to the House of Representatives under the same cover, the Minister commented on the recommendations. In general, he wrote that he had taken the Council's criticism into consideration and that the points at issue were discussed in greater detail in his explanatory memorandum.
Passage through the House of Representatives
Bills are sent first to the appropriate permanent committee at the House of Representatives. The committee issues a report, to which the government responds in a memorandum. The committee then has the option of issuing a second report, to which the minister would respond with a second memorandum.
The permanent committee for economic affairs finalised its report on the Opening Hours (Shops) Bill on 2 October. On 23 October, the Minister of Economic Affairs sent a memorandum responding to the report and proposing amendments. In particular, the memorandum proposed giving municipal executives the power to authorise exemptions from the rules in the bill. On 23 and 30 November 1995, the bill was debated by the House of Representatives in plenary session.
The parties in the governing coalition, PvdA (social democrats), VVD (free-market liberals) and D66 (left-leaning liberals), supported the main lines of the proposal, giving it more than enough support in the House from the outset. Even so, the government was subject to sharp and fundamental criticism from opposition parties, in particular CDA (Christian democrats), SGP and RPF (conservative Christians) and SP (socialists), who felt that the government had concentrated too much on the interests of consumers and not enough on those of shopkeepers.
The opposition also foresaw adverse social effects if the bill became law, with the Netherlands sliding down the slippery slope into a 24-hour economy. The proposal to let shops open on Sunday was especially controversial. Most parties could live with the idea of shops staying open later in the evening; the debate focused on the exact closing time. The Christian parties stood behind the SER's recommendation: 8 pm. The government, however, was committed to 10 pm, largely at the insistence of the free-market VVD, which would actually have preferred midnight.
In his written response, the minister refused to give ground on closing times, saying that the potential benefits of the Act outweighed the opposition's arguments. He invited the House of Representatives to come up with its own compromise on the Sunday issue. This kindled a fierce debate. The opposition, especially the Christian parties, rejected any encroachment on the day of rest protected by the Sunday Act. The governing parties were divided on this issue. D66, whose minister, Hans Wijers, had introduced the bill, was the strongest proponent of letting municipal authorities decide. For some time, VVD considered putting forward an amendment that would leave the decision entirely in the hands of shopkeepers. After extensive discussion, the PvdA moved to cap the number of "shopping Sundays" a municipality could introduce at 12 a year, threatening to vote down the bill otherwise. In the end, the bill was passed with the PvdA's amendments, by a large majority of the House.
Passage through the Senate
On 5 December 1995, immediately after the vote in the House of Representatives, the amended bill was sent to the Senate. It was first debated in the Permanent Committee for Economic Affairs, just as it had been in the House. Again, the Minister responded in a memorandum. On 19 March 1996, the Senate debated the bill in plenary session. Much the same arguments were heard from both the governing and opposition parties as in the House. The exact closing time and the day of rest were still the points of greatest contention. Unlike the House, the Senate cannot introduce motions or amendments, or vote on individual provisions. It must pass or reject the bill as a whole. After long debate, the Opening Hours (Shops) Bill was passed without a vote. The President of the Senate added the following proviso: "The members of CDA, SGP, RPF and SP in attendance are hereby informed that, in accordance with Article 121 of the Rules of Procedure, they shall be regarded as not having been able to support the bill."
According to the Constitution of the Netherlands (art. 87, para. 1), a bill becomes an Act of Parliament once it is passed by the States General (the House and Senate) and ratified by the monarch. The lead minister is responsible for obtaining royal assent and for countersigning the bill. The Opening Hours (Shops) Act received the assent of Queen Beatrix on 21 March 1996, when she signed it along with Hans Wijers, Minister of Economic Affairs.
Publication in the Bulletin of Acts and Decrees (Staatsblad)
The Ministry of Justice is responsible for publishing Acts in the Bulletin of Acts and Decrees. The Opening Hours (Shops) Act was published in no. 182, dated 28 March 1996. It entered into force on 1 June 1996.
Putting legislation into action: Implementation regulations
Acts of Parliament often only address the main aspects of a topic. They provide for more detailed legislation in the form of implementation regulations, which - like Acts - contain generally binding regulations. They are not subject to approval by parliament. There are many kinds of implementation regulations. Some are required by law to be enacted by the government. These are called orders in council and take the form of Royal Decrees that must be signed by the King and one or more members of government. In other cases, a minister may be designated in an Act to enact more detailed rules. These take the form of a ministerial order. Finally, implementation regulations may drawn up by officials, if the Act in question allows for it.
These regulations may provide for all sorts of powers, for example the power to issue licences or award grants. Often, there is some latitude as to how they will be put into practice. Ministers may lay down written rules about how to apply certain regulations. Sometimes these rules (contained in guidelines or circulars) are intended purely as instructions for civil servants, but in other cases they are published in order to keep the public informed.
The Constitution stipulates that generally binding regulations established by the State shall not enter into force until they have been published. Acts and Royal Decrees containing generally binding regulations are published in the Bulletin of Acts and Decrees(Staatsblad). All other generally binding regulations are published in the Government Gazette (Staatscourant), except for regulations on education, which are published in the periodical Uitleg. International treaties are published in the Treaty Series (Tractatenblad). Policy rules of the kinds contained in guidelines or circulars need not be published, but if they are it is usually in the Government Gazette or in Uitleg.
In the case of the Opening Hours (Shops) Act, for example, certain exceptions to the general prohibitions in the Act were published in the Bulletin of Acts and Decrees 183 (1996). For instance, section 2, subsection 1 of the Act, on Sunday and holiday closing times, does not apply to independent pharmacies (of which there are about 1450), shops in or adjacent to hospitals (about 125), booths at railway stations (about 150), shops at airports (20), shops at petrol stations (about 2900) and shops where newspapers and magazines are sold (about 300).
Democratic control of the executive: The States General
Either of the houses of parliament may set up a special commission to investigate complex and wide-ranging issues. Parliamentary inquiries have a special place within this category. A majority in the House of Representatives is needed to launch an inquiry. The commission of inquiry may require persons to appear and give evidence under oath.
The House has a special committee that handles complaints from individuals: the petitions committee. This body deals solely with complaints about specific cases which cannot be handled in court. If it finds that action should be taken, the members can make use of their powers as members of parliament to do so.
The Court of Audit
This is an independent body that audits national government expenditure for regularity (compliance with the law and with ministerial orders) and efficiency. It presents its conclusions to the House of Representatives. A critical report by the Court of Audit can lead the House to call ministers to account. The reports are published as parliamentary papers and can be found on the Internet.
The National ombudsman
This independent official deals with complaints from individuals about poor conduct by the authorities. The National ombudsman does not consider complaints about a municipality or a province, unless the authority has opted in to the National ombudsman arrangement. Only individual cases are considered, and only those which cannot be handled in court. The National ombudsman issues reports containing his conclusions. These reports are available on the Internet. He is not a judge and the authorities are not required to follow up on his recommendations.
The meetings of the houses of parliament, provincial and municipal councils, water boards and the boards of public authorities are open to the public. So are court hearings. All government documents containing information on government activities (reports, research papers, policy documents etc.) are in principle accessible to the public. On request, any member of the public may view these documents (or copies of them, in which case a copying fee may be charged per page). Some documents or information may be withheld for reasons such as security, criminal investigations, financial interests or privacy protection. Legislation on public access to information gives everyone the right to monitor government actions.
The court system
The enactment of legislation cannot be the subject of review by the courts. However, a court may review whether one piece of legislation is compatible with another. Furthermore, almost all other kinds of decision taken by the public authorities are subject to judicial review in an administrative tribunal. Generally, judicial review takes place only after a notice of objection has been submitted to the public authority that made the decision. The authority then has the opportunity to reconsider the decision in light of the grievances. The civil courts do, however, have jurisdiction over disputes related to the performance of contracts entered into with public authorities.