Proposition 50K2131

Projet de loi modifiant certains aspects de la législation relative à l'organisation et au fonctionnement de la section de législation du Conseil d'Etat.

General information ¶

Submitted by

Groen Open Vld Vooruit PS | SP Ecolo MR Verhofstadt Ⅰ

Submission date

Nov. 20, 2002

Official page

Visit

Status

Adopted

Requirement

Simple

Subjects

administrative court

Voting ¶

Voted to adopt

Groen Ecolo PS | SP Open Vld MR

Voted to reject

CD&V LE FN VB

Party dissidents ¶

• Vincent Decroly (Ecolo) voted to reject.
• Richard Fournaux (MR) voted to reject.

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Discussion ¶

Jan. 15, 2003 | Plenary session (Chamber of representatives)

Full source

Mr. Speaker, Mr. Minister, colleagues, the present draft, which aims to reform the organization and functioning of the legislation department of the State Council, has been the subject of an extensive committee discussion. The reason for this reform is double.

First, there is the finding that the legislative work is delayed, not only because the deadlines within which the Council of State Division legislative advice is requested are not met, but also because the prescribed formal requirements for the opinions are too often applied too strictly.

Then there is the State Council’s concern that its Division of Legislation has insufficient workforce to effectively address the huge increase in the number of requests for advice submitted to that Division. The composition of the three components of the State Council and the procedure relating to the request for advice and the provision of advice are therefore substantially modified. For example, ten members of the coordination office will go to the audit board, where they will be prioritised in the legislation department. The offices will also be reinforced by two units. From the transfer of ten referents to the audit board it follows that participation in the functioning of the legislative department, as well as the development and dissemination of the principles of legislative technique, no longer fall within the tasks of the coordination office. This development and dissemination is closely linked to the activities of the legislative department and is therefore assigned to the audit board.

In this regard, it should be noted that, insofar as the necessary resources are allocated, the members of the audit board will also be charged with keeping, ⁇ ining and making available the documentation on jurisprudence of the legislative department.

As regards the opinions, and in particular the corresponding deadlines, the following arrangements shall enter into force. The deadlines begin on the first working day following that of the registration on the role. The working day is the day that is neither a Saturday, nor a Sunday, nor a holiday. The due date is understood in the deadline. If that day is not a working day, the deadline expires on the next working day. For the advice requested within a period of one month, there is no longer a need for government consultation on the request for advice.

Furthermore, the advice may be limited to the examination of the author’s competence, the legal basis and the formal requirements to be met. For the advice requested in the short term, the period of 3 days is increased to 5 days. The opinion is limited to the three aforementioned points. Before the expiration of the period, the consultant and he can only extend it. In the case of requests for advice with a deadline, any non-compliance with the formal requirements does not prevent the advice being given. In that case, the State Council will indicate in its opinion the formal requirements that still need to be met. If the advice is requested within one month, it is up to the auditor to immediately signal to the authorised person the formal requirements which, in his opinion, are not fulfilled. If the opinion is not communicated within the requested period, which may be extended, the request for a draft regulatory decision is withdrawn from the Council of State and the obligation to obtain the opinion of the legislative department is overlooked. However, this latter rule does not apply to a draft law, decree or order. An opinion shall be translated within a period of not more than 15 days from the date on which the opinion is communicated in one language. It is also worth noting that it is expressly provided that the Legislative Section of the State Council shall be allowed to ask or hear questions not only from the authorised official or the representative of the Minister but also from the authorised representative of the President of a legislative assembly if it is a proposal submitted by one or more members of its assembly. Finally, the draft stipulates that the communication of the unanimous opinion will be taken into account for the calculation of the deadlines, while the opinion itself will be communicated by post, by messenger, by fax or by electronic mail. The communication by fax or by electronic mail must be subsequently confirmed in writing.

This new concept of the organization and functioning of the Legislative Section of the State Council addresses the concerns of governments and responds to the State Council’s concern that the staff shortage within the Legislative Section is one of the main causes of non-compliance with the prescribed deadlines.

During the discussion of the present draft, a number of additional comments were made. According to one member, the opinions of the State Council Department of Law should be bundled annually and published in a Bulletin of Opinions of the State Council. The first chairman of the Council of State should allocate the request for advisory services alternately to a Dutch-speaking and a French-speaking chamber per department.

On the other hand, another member, who could somewhat subscribe to this latter thought, challenged the arrangement by which all chambers would be a priori bilingual but whose chairman would have a different language role than the other members of the Chamber concerned. The main complaint against the draft was that the Council of State Division legislation would be forced to issue an opinion without complying with the respective prescribed consultation procedures.

Finally, one colleague argued that advising by the State Council is not only a matter of the government, but also of the Parliament. Therefore, the data subject summed up a number of far-reaching implications that the mandatory restriction of the investigation would entail. In his response, the minister pointed out that the government has never planned to give up the advisory services of the State Council. On the contrary, the government wishes to make as much appeal as possible to the Council of State, which is given the opportunity to deal with the essential. It is also not intended to circumvent administrative and budgetary formalities. The fact that the State Council is requested for an opinion before these formal requirements have been met does not mean that they should simply be overlooked.

Regarding the publication of the opinions of the legislative department of the State Council, the Minister informed that efforts are being made, but that progress must be made in this area carefully and in dialogue with the State Council. For example, it is currently being examined whether such advice can be made available through modern means of communication, in particular via the Internet.

The proposal concerning the division of matters between the Dutch-speaking and French-speaking chambers was not approved by the Minister because this matter belongs primarily to the privileges of the First President. Furthermore, the proposed arrangement would undermine the organizational independence of the State Council. The most complex cases are, by the way, dealt with by the united chambers of the legislative department, which are strictly paritary.

Finally, the Minister stressed that the main objective of the bill in question is to enable the legislation department of the State Council to provide better advice in a shorter period of time.

As regards the vote, the Committee for Internal Affairs unanimously decided to derogate from Article 18 point 4.a)bis of the Rules of Procedure of the Chamber and unanimously adopted the whole draft law, as amended.

So far, dear colleagues, the overview of the committee’s work, of which I had the honour to be able to present the report.

The colleagues Bourgeois and Viseur have disappeared. Mr. Coveliers, you should not make the speaking time of these two colleagues yours.

Mr. Speaker, I will not abuse this extensive time of speech, especially since I have just promised it to the representatives of the media, with which one must occasionally stand well. I try to keep my promise. There will also be no interruptions, so I cannot ask for additional speech time. I think the summary given by Mr Smets is a very solid and comprehensive summary.

Mr. Minister, I just want to take the word because it is sometimes proposed as if this draft was an independent advisory body. I hope in a period of ten minutes to be able to prove that this is not the case and that, on the contrary, it is intended to try to make the work of the State Council possible in an efficient manner.

The main task of the legislation department of the State Council is, in fact, to give opinions. Sometimes she gives compulsory advice, sometimes when one considers it necessary to ask for such advice.

There is also a clear link between the work of the Department of Administration and the Department of Legislation. I do not have to go further into this either. The discussion has been held for a long time at the time when it was discussed to divide and to make the Court of Cassation its administrative right for the Council of State. In any case, it is true that the advice is widely used in the administration department, which is logical.

The problem is, of course, that the preventive review that the State Council makes happens when political decision-making is already very advanced. The legislator, I think rightly, assumes that the State Council must review the final text, not an original preliminary draft, but a final text that comes into being. At the same time, our legal system, mainly on the administrative legal level, has become very complex. I think of the increasing internationalization of law, the implementation of a number of directives, compulsory and other, a greater technicality, fortunately also a growing attention to fundamental rights, successive state reforms and associated competence-sharing arrangements. These mean that a draft submitted for advice actually needs to be subject to an increasingly thorough examination, but also — and that is important — that the number of requests for advice has increased exponentially.

It is one thing that there is a quantitative increase in the number of requests for advice to the legislation department of the State Council, another element is the large number of requests for emergency treatments. We, by the way, also contribute to this half-course that this is happening quite a lot. Since the Ordinary Law of 9 August 1980 on the Reform of the Institutions, which requires public authorities to justify why they do not wish to submit the texts they have drawn up for advice to the Department of Legislation and the validity of that reasoning can be verified by the court later, the number of requests for advice has increased significantly within a period of not more than three days.

In addition to the three-day period laid down by the legislator, the Law Department also faced requests for advice in which several other deadlines were mentioned. There are requests for advice where, taking into account the concrete circumstances of the case, for an opinion was requested within the most diverse periods, ranging from ten days, a month, two or three months, or where even an opinion was requested at a deadline.

On 4 August 1996, the legislator intended to put an end to the possibility of seeking an opinion within the time limit desired by the public authority concerned and freely determined by it. From then on, any public authority which considers it appropriate to request an opinion within a specified period may only do so within a period fixed by the legislature. A novelty in this regard was the maximum period of one month, for which no justification is required, but rather a discussion within the government. It was then clearly intended that the government concerned would pursue a certain policy in this regard and not in all cases would agree to a one-month consultation request, since a government is considered to be able to assess on a global level which projects are urgent and which ones are less urgent. The requirements for government consultation should therefore be at least a procedural brake on the one-month consultation requests.

We note that at the federal level this brake has still worked to some extent. However, at the level of the Communities and the Regions, this brake was largely ineffective. It was this because in the community and northern governments the collegiality rule leads to the fact that almost every regulatory decision must be submitted to these governments, so that one could decide in one breath — one had to consult in the government — to ask for advice in one month. There are even drafts known that already stated that one would ask for the advice one month after discussion.

Thus, the introduction of a new one-month period did not result in a reduction in the number of requests for advice to three days. However, it resulted in a drastic reduction in unlimited requests for advice. This can be explained, in essence, by the fact that before 1996 there was a widespread practice of, as already stated, informally seeking advice at a certain period or at a certain date, even though this practice was not supported by law. In other words, the large number of requests for advice within a period of up to one month, combined with the still significant number of urgent requests for advice within a period of up to three days, makes it almost impossible for the Law Division to handle the former category of requests for advice strictly within the period of one month and assign a detailed examination to it. The one-month consultation requests therefore in most cases lasted longer than one month. It even happens that the one-month deadline has already been exceeded, while the auditor has not yet been able to start investigating the case.

All this demonstrates that the timetable set by the legislator does not function properly and that the aim for which it was intended, namely the reduction of the number of requests for advice, has not been achieved. These are requests for advice within a certain period of time. The absence of opinions irritates the consultancy seekers, as it means for them a structural delay in the political decision-making process. The overriding of the legislation department is a source of irritation for the members of this department. She does this especially because the depth of legal investigation that can be spent on each individual file is constantly decreasing and is gradually threatening to reach a critical threshold. I would like to point out that some governments too often see the Law Department as one of the many advisory bodies they need to consult. They do not rarely consider her as an inevitable and preferably as soon as possible to take the clip. The focus is not on the pursuit of a quality regulation, but on the prompt implementation of the regulation, without creating too many legal barriers. One can here — I think rightly — argue that today’s society expects a quick decision-making and that from a political society perspective it is in many cases difficult to accept that a legal opinion on a draft leaves itself too long, especially when it subsequently turns out that there are no substantial legal problems in the text.

This design therefore meets these legitimate aspirations. The new deadline arrangements – as outlined by colleague Smets – will disrupt the different visions that the respective governments currently have in this regard. A number of colleagues, when it comes to a draft regulatory decision, mainly object to the fact that the request for advice from the State Council can be withdrawn if the opinion has not been communicated within the requested extended deadlines.

Practice shows, however, that in a significant number of cases, the supervision of the legal and legislative quality of a text can equally be achieved in a more efficient way within the relevant administration. In this context, the measure of transferring ten members of the Coordination Bureau to the audit board where they will be prioritised in the legislation section can only be welcomed.

It considers that at the present time only thirteen auditors can be employed for the examination of all drafts submitted for advice by the federal government, the Communities and the Regions. Although the distribution of the files among the auditors takes place according to the substantive matter, but for one auditor this matter, as a rule, still included several ministerial departments. The inevitable consequence of this limited number of auditors in the legislation department is therefore the build-up of a lag in the handling of the dossiers and the provision of opinions. Furthermore, there is no need to argue that the increasing workload of the legislative department poses a real threat to the quality and depth of its opinions. Indeed, it should not be overlooked that the Council is obliged to give an opinion but that, in principle, it is equally obliged to give a substantially legally justified opinion.

The proposed extension of the auditory through the addition of ten referents also implies that in the future the coordination office will no longer participate in the operation of the legislative section. This is also a positive given. In the past, it has been repeatedly pointed out that the double investigation by the coordination office and the audit board in many cases does not contribute to the efficient handling of a file. Traditionally, however, there is a division of tasks between these two sections of the State Council in the sense that the coordination office is concerned with the composition of the documentation, the legislative technical observations as well as with the preliminary formal requirements while the audit board examines the substantial legal aspects. However, this does not exclude the fact that both the auditor and the referent concerned must examine the same file. In addition, it happens that the auditor must start his investigation while the coordination office note is not yet completed so that the auditor does not yet have the documentation and himself must make additional necessary searches. This draft, Mr. Minister, therefore, rightly ends this double investigation. Instead, the coordination office will consist of a number of documentaries who must be sufficiently familiar with the information systems and the legal heuristics in such a way that they will be able to adequately handle the preparation of documentation notes for each file. The remaining referents may then be charged with supervising these tasks and the legal databases ⁇ ined by the coordination office.

Furthermore, it is very positive that the publicity of the opinions of the Legislative Division of the State Council will eventually be made so that, together with the judgments already published on the Internet, they will form a whole and will be an important source of information in their tasks, both for policymakers, for policymakers — the Parliament — and for lawyers. For all these reasons, Mr. Minister, we will therefore also comment on the text that I have tried to comment within ten minutes — I went a little further but I had the permission of the President and the media have not yet brought it so far that they can still determine it, Mr. President — approve.

There must be some arrangements that I am unaware of. That being said, Mr. Coveliers, thank you for your briefness.

Mr. Speaker, with your permission, I will answer from my bank because I only have two words to say.

First, I would like to thank Mr. Smets for his excellent report which demonstrates that we have had a serious and rewarding discussion in the committee, which exempts me from repeating these justifications in the plenary session.

Then, I look forward to the fact that this draft is being discussed today in the plenary session of the House, which leaves me hoping that it will be able to be adopted by Parliament before the end of the legislature. Indeed, this is an important project that gives the State Council additional resources, that restructures the organization of its services – which should enable it to ⁇ even greater efficiency – and that helps to reconcile two legitimate concerns, namely that the legislative section can fully play its role of useful and necessary counseling in order to have the best texts, in accordance with our international commitments and the law when it comes to detainees, and, at the same time, that the executive can dispose of these opinions within a reasonable time in a world where things go more and more quickly.

I would like to clarify that I have had a very fruitful dialogue with the State Council; it is together that we have found this balanced solution. by

Mr. Speaker, I add that following the suggestion of two of our colleagues, I have submitted an amendment that will allow the President of the respective assembly, when the opinion of the Council of State is requested for a proposal of law, decree or order, to designate a delegate to submit the proposal to the Council of State and to answer any questions that may arise.

Finally, for one time, I believe I can say that we must be in the presence of a good text, on the legal level in any case, since we have appealed to a provision of the law on the Council of State and we have asked him to write himself the text which is submitted today to the discussion in plenary session of the House.

Mr Minister, I thank you. It is obvious that with a little humor, you will understand that there are sometimes proposals of which the chairman of the House asks what representative he should designate to defend them in the Council of State! This is a hermetic language that is understood by those who need to understand!

I think I am correct in my interpretation. The President can decide whether to send someone.

I know that, but there have already been bills with a large "w" of which I did not know exactly which of the applicants should be named.

You can go yourself too.