- Link to the scientific book: Zucchini F., Rebessi E., Il consigliere giudicante: il Consiglio di stato nel sistema politico italiano, Egea Editore, 2024.
"Le altre scienze" – "The Other Sciences", in English – is our podcast with questions (and answers) on politics and society. It's in Italian.
Since this 9th episode is particularly relevant, we wanted to share it with a broader audience.
Please read below the English transcription of this podcast interview with Francesco Zucchini, professor of Political Science at the University of Milan.
GR: Welcome to a new episode of "Le Altre Scienze", a NaspRead.eu podcast with questions and answers from the world of social and political sciences. Today we are joined by Professor Francesco Zucchini – a political science professor at the University of Milan and the director of NaspRead. He recently published, along with Elisa Rebressi, an open-access book (available for free online for anyone interested in further reading) titled "Il consigliere giudicante" ("The Judging Counselor"), published by Egea Editore, which discusses the role of the Council of State in the Italian political system. First, welcome, Professor.
FZ: Welcome to you, Giulia.
GR: Political science does not only deal with parties, electoral behaviors, public policies – all topics we've discussed so far on NaspRead – but it also has its own courts. Today we are here to talk about one such court. Not one of the more famous ones, because we certainly won't be discussing Versailles and the Court of the Sun King. But a court that, although somewhat less known, wields a lot of power in the Italian political system: we're talking about the Council of State. Many citizens know it as the body that provides the second level of judgment on administrative disputes that have already been through the TARs – the regional administrative courts – but that's not its only role.
FZ: No, it’s not its only role. The name itself suggests that it originally had another role: that of an advisor. In fact, the Council of State is essentially the main legal advisor to the government. It advises – sometimes, as we’ll see, obligatorily – on administrative acts that the government issues in implementing laws passed by Parliament. It provides an opinion on these acts and also acts as a judge in disputes between the public administration and citizens once these acts are in force. So, it simultaneously has the role of advisor and judge.
GR: So, we are looking at a potential – or perhaps not so potential – conflict of interest. How is it possible for an advisor to also be a judge, and vice versa? And what’s the point of thinking about an advisory body with mandatory opinions if these opinions are often non-binding?
FZ: The reason the Council of State has also become a judge over time and has maintained this role has to do with the overall functioning of the political system and internal dynamics within governments. Once a law is approved, it needs to be implemented through an administrative act. This act is generally the responsibility of the ministry that promoted the law or the entire Council of Ministers that promoted it, but in any case, the main competencies lie with a specific ministry. There is obviously a control issue to ensure that when a law is implemented, there isn’t opportunistic behavior by the same ministry and the minister in charge. Thus, over time – starting from the late 19th century, during the Kingdom of Italy – the need arose to control that these administrative acts did not exceed legal limits, i.e., the law's content. The Council of State was given judicial competence, at least for these reasons: to protect citizens from potential abuses by the public administration and to provide guarantees to government members (to each other) that there were no de facto illegal behaviors. And that no agreement between government components was violated during the implementation of a law. The reason for mandatory but non-binding advice is precisely to issue a warning: attention, this regulation as it stands does not work. It signals the entire government, particularly those parts not primarily responsible for the regulation draft. The problem is that this warning often comes with significant delays, which slows down the implementation of laws and policies.
GR: Exactly. There’s a sort of magic word that involves the Council of State when making a law. If the word “regulations” is included, the Council of State is called into question. But it’s not mandatory for a law to be implemented through regulations. So, why don’t the government and parliamentarians avoid this word, considering that omitting it could streamline and speed up the legislative process?
FZ: Some jurists believe that certain types of administrative acts must be considered regulations. However, this hasn’t always been the case. Some governments have avoided including the word “regulation” in laws. Generally, laws suggest the implementing act, which is often considered such afterward. The literature often speaks of an escape from regulations. Jurists denounce this phenomenon. This shows that governments can implement a law without necessarily using regulations but other types of general administrative acts. Why, then, do they continue to implement laws through regulations? Because governments are not homogeneous, they are heterogeneous. And the delays involved in implementing a law through regulations can be seen favorably by some government components, generally the more conservative ones, less favorable to policy changes. So, the delay is due to the need to find an agreement within the government on a law and how to implement it. In some circumstances, it’s easier to find an agreement to implement a law through a regulation. However, this allows the status quo to persist longer, as the Council of State generally takes a long time to give its opinion on regulations, up to 3 or 4 times longer than for a general administrative act.
GR: And are there time limits within which it must express itself?
FZ: In practice, these limits are always circumvented.
GR: If we look closely, there are many Council of State advisors within ministries, as integral parts of ministries. What does this mean?
FZ: Council of State advisors are technocrats with rare expertise. They are top-notch legal experts and are very familiar with administrative jurisprudence because they are judges themselves. So, they are in ministries because they know how to draft administrative acts and even laws. They also have a function of anticipation. If you want to know what the Council of State's stance might be, not just when giving advice but especially when judging, having a Council of State advisor in the ministry is very useful. They can indicate if a draft is likely to be sanctioned during a dispute by the Council of State. For this reason, it is very useful for politicians to have a Council of State advisor in the ministry.
GR: How does it work outside of Italy? How could we overcome the issue of having an advisor who is also a judge, a judging advisor?
FZ: There is a variety of situations outside Italy. Preventive legality control of administrative acts – which occurs before the act is in force – is present in some countries of Napoleonic tradition, influenced by the first Napoleonic empire. Countries similar to Italy in various respects are mainly Belgium and the Netherlands. France might seem similar, but its political system gives the government considerable power, making the role of the Council of State very different from its Italian counterpart. In other countries, preventive legality control is entrusted to the ministries themselves. This system was also present in Italy but with greater importance in Germany, where the legality of administrative acts is verified within ministries. Then there is an administrative judge, but not also an advisor. In other countries, quality control is carried out by parliamentary committees. In the UK, preventive legality control of administrative acts is done by parliamentary committees. There is a variety of possible solutions. In Italy, how could this be resolved? It’s unlikely that our ministers would give up having Council of State advisors in ministries. Eliminating the advisory role of the Council of State is complex and difficult. Or rather, eliminating the judicial role is difficult because it’s constitutionally provided for, thus requiring a constitutional amendment. What can be done is to attenuate the link between advisors when they advise and when they judge. This can be achieved by requiring that advisors are not judges for a certain period and enriching the Council of State with advisors who are not necessarily legal experts but experts in other crucial fields, ensuring that once implemented, a law achieves its goals. So, enhancing ministries with advisors who are not necessarily legal experts but experts in economics, political science, sociology, management engineering, and statistics. These are all competencies that are still lacking within governmental structures.
GR: Thank you, Professor Zucchini, for being with us, and we’ll see you in the next episode. If you want to delve deeper into these topics, you can find new content on NaspRead.eu.
You can listen to the original audio in Italian below.
You can listen to the original audio in Italian below.