A fair comparison? Israel’s reforms and the UK

By: Elijah Granet

Amidst the waves of criticism of Israel’s proposed reforms to the judicial system, British constitutional scholars have had to deal with a slight sense of embarrassment. The proposals by the government of Binyamin Netanyahu have, at their core, a provision allowing a simple majority in the Knesset (Israel’s Parliament) to overturn any decision of the Supreme Court. As voices from across the world  expressed horror at the thought of the legislature being able to so easily overrule the judiciary, defenders of the reforms have pointed to the UK’s system of parliamentary sovereignty as proof that the reforms are not anti-democratic. After all, if in the UK, any Act of Parliament can overturn even the most serious judicial decision, why is it wrong for Israel to do the same when Israel also uses a variant of the Westminster system? Yet, the argument is ultimately specious (even if we accept, which many do not, that the British model is one worth emulating).  The constitutional and political differences between the UK and Israel are significant, and the checks and restraints which allow for constitutional democracy and parliamentary sovereignty to have a modus vivendi in the former simply do not exist in the latter. 

Israel’s constitution is often upheld, alongside the UK and New Zealand, as one of three examples of a national uncodified constitution. This, however, is misleading. Since independence in 1948, Israel has elected to pursue gradual constitutionalising, passing piecemeal aspects of its constitution. The aspiration is that, eventually, these constitutional acts (known as Basic Laws) will together form the final constitution of Israel. The first basic law, for example, set out the procedures for elections to the Knesset and established entrenched provisions to protect the democratic basis of legislation. Twelve more basic laws have since been passed, of which the most significant, by far, is the 1992 Basic Law: Human Dignity and Liberty, which set out a de facto Bill of Rights. In response to this, the Supreme Court (sitting in its dual capacity as the High Court of Justice) under the presidency of Aharon Barak began constitutionalising Israeli jurisprudence, including striking down ordinary Acts of the Knesset for being contrary to the Basic Law. This major judicial development has often been resented by politicians, not least Mr Netanyahu, who view this as overreach by the court.  In turn, Barak and many scholars viewed this as the judiciary simply taking seriously the Knesset’s ability, as a continuing constituent assembly, to adopt a constitutional act as a Basic Law. Where the Knesset has done so, the argument goes, the judiciary is obliged to recognise the Basic Law as a superior constitutional norm to ordinary legislation.

Mr Netanyahu’s proposed reforms, which recently passed their first reading in the Knesset, are a multi-pronged attack on the current structure of the judiciary (as currently codified in Basic Law: The Judiciary). First, the composition of the Judicial Selection Committee would be revised to give the government of the day full control over the appointment of judges. Second, legislation would only be able to be struck down as unconstitutional by a unanimous full court (15 judges),  and only if there is a clear textual contradiction (rather than being implied or against the spirit) with a Basic Law. In such a case, the Knesset by simple majority could simply exempt the bill from review and overturn the finding of constitutionality. The Knesset could also pre-emptively shield legislation from review altogether by putting a notwithstanding clause into a bill. Finally, where the Knesset passes a new Basic Law, this is automatically exempted from review. 

Each of these measures may initially seem to have some resemblance to an accepted Westminster system democratic practice. The political appointment of judges proposed by the legislation may initially seem not to be especially different from the system, until relatively recently, of the Lord Chancellor appointing judges in the UK.  In Canada and Ireland, judges continue to be appointed on the advice of the Prime Minister and the government respectively (though in both countries, in practice most appointments are made on the advice of relatively independent boards). This works well in those systems, but would fail in Israel. This, in part, is because it is paired with the new requirement of unanimity for striking down laws as unconstitutional, meaning that even a single judge appointed by the government could act as a veto player to stop judicial review.  This is unprecedented in common law systems; even when the Constitution of Ireland prohibited dissents in constitutional cases, it did not require that the decisions themselves be unanimous behind-the-scenes. Furthermore, the traditional Westminster conventions  of restraint  and independence in judicial appointments developed organically over many years. The proposed reforms in Israel create a  new mechanism for appointments, but they cannot create the norms and rules which retrain and govern them. In the absence of a broad political consensus around best practice judicial appointments (as exists in Canada), there is every risk that governments will simply try to stack the courts with favourable judges, undermining judicial independence. 

The reforms, in pursuing parliamentary sovereignty, clearly parallel the British model. However, Israel lacks the safeguards against runaway legislation found in the British system. The first, and most obvious, is bicameralism. As the recent experience of some of the Sunak government’s illiberal legislation shows, the House of Lords, in its function as a revising chamber independent of tight party discipline, has both the legislative expertise and normative power to make governments think twice about bad bills. A majority in the Commons, with its consequent control of the executive, is nonetheless prevented from being an elective dictatorship by the independence and careful watch of the second chamber, which cannot be threatened with deselection or enticed with ministerial advancement. Israel, on the other hand, is a unicameral system, and sixty-one seats in the Knesset give a coalition the power to pass any legislation it likes, with no review or checks other than the Supreme Court. This means that unlike in the UK, a system of parliamentary sovereignty would give the barest of majorities unlimited power in Israel.  

This risk is exacerbated by the distinction in electoral systems between Israel and the UK. In Israel, the entire country is a single electoral district and members of the Knesset are elected according to closed list proportional representation, with the parties determining the order of candidates on their list. This creates stronger party discipline, because members owe their position in the Knesset to their party’s list, and need to be on that list in the next election (unless they wish to take the gambit of starting an entirely new party). Thus, there is no direct constituency relationship between MKs and voters, and thus it is less likely to see rebellions or other internal party pushback against bad legislation.  This is to be contrasted with the UK, where MPs have direct constituency relationships and personal mandates beyond just their party’s selection. Other Westminster systems using proportional representation include either a mixed member  system retaining a large number of single member districts (e.g. New Zealand) or use single-transferrable vote, under which voters still select candidates individually and constituency relationships are strong (e.g. Ireland).  This means that individual MPs are, in theory, better able to take risks in opposing their own party and scrutinising its programme of government. 

The pre-emptive notwithstanding clauses in Netanyahu’s proposed reforms also contrast to the UK. While all Acts of Parliament may be exempt from judicial review, the courts retain the power under the Human Rights Act to issue declarations of incompatibility, and thus to exercise a normative review of legislation which functions as a political, if not legal, check on the government. (Until recently, courts could also disapply primary legislation which was contrary to EU law) Similarly, the ability of the European Court of Human Rights to find violations caused by primary legislation may have no domestic  binding effect, but can still pressure a government in the political arena.  Israel is not part of an international court, and the notwithstanding clauses mean that the Supreme Court will not even be able to give an opinion on the compatibility of legislation with the constitutional order. The lack of even a declaratory relief means that a majority in the Knesset can enact legislation without any independent review. In the Westminster system, where norms and conventions are as powerful as formal rules, the absence of this normative check matters.  

Israel also lacks effective checks from the head of state. The current President, Isaac Herzog, was previously the Leader of the Opposition, and thus lacks the independence or moral authority a more impartial head of state might have. His warnings are more likely to be ignored by a government who regard him as a political opponent. The power of the head of state to warn, as noted by Bagehot, is a crucial check on the rashness of politicians. Unlike the King, President Herzog (who, ironically, like the King, is the son of a previous head of state) cannot rely on institutional tradition or the dignity of the office to restrain governments. Other parliamentary republics counter the relative weakness of the president (as compared to a monarch) by giving the head of state powers to force governments to think again; for  example, Ireland’s Constitution (article 26) allows the President to refer bills of doubtful constitution to the Supreme Court before signing them. There is no such power in Israel, and thus the government both has little reason to listen to a head of state who was until recently its electoral rival, and the president no ability to force them to do so.

Finally, the constitutional structure for the protection of national minorities (who are most at risk from majoritarianism) differs significantly between Israel and the UK. The internationally binding Belfast/Good Friday Agreement secures the special position of Northern Ireland and protects the rights of both the territory’s communities. In Canada, a federal system and guarantees for representation safeguard minority Francophone interests, while in New Zealand, the principles of the Treaty of Waitangi constrain government action with regards to the Māori. In Israel, by contrast, there is no institutional guarantee of the rights of the Arab minority (sometimes called Palestinian citizens of Israel). The constitutional ascendancy and rise of judicial review has served as a de facto protection for minority rights, but the new provisions could put that in jeopardy. The passage of the Basic Law: Israel—Nation State of the Jewish People in 2018, which made symbolic changes to the detriment of the position of the Arab minority, suggests future governments may go further in curtailing the political voice of Arab citizens. The backstop guarantor for the minority community, rights review, is being taken away with no new safeguards being added. This raises concerns simply not present in a UK context.

Constitutional change can’t be done in the abstract. Picking and pasting various features from different countries, without carrying through any of the requisite checks, is a recipe for  the so-called Frankenstate. Parliamentary sovereignty works (mostly) in the UK because of a delicate  institutional balance. Israel copying only the headline bit (majority rule) without any of the consequent institutions risks undermining its democracy. 

Elijah Granet.

Elijah Granet studied politics at Columbia University and the University of Cambridge. He has worked as a law lecturer both in Germany and England, as well as working for the Harwood Institute in the US. 

The Constitution Society is committed to the promotion of informed debate and is politically impartial. Any views expressed in this article are the personal views of the author and not those of The Constitution Society.