We are lawyers and legal academics from the UK who are concerned about the content of proposed reforms to Israel’s constitutional structure and institutions. We fear that these will undermine democratic rights, the rule of law, the separation of powers, the independence of the judiciary and human rights. These reforms would move Israel away from democracy and towards legal autocracy.
The proposal is to substantially change the process for judicial appointment so that appointments will be made by elected politicians from the ruling coalition, or persons nominated by them. There will be some input from existing judges, but that input can be sidestepped.
This weakens the independence of the judiciary in three ways. Firstly, there is a risk that judges will only be appointed if they have views that align with the views of the politicians appointing them. Secondly, there may be the perception amongst the public that appointment is based upon political opinion rather than legal merit. Thirdly, serving judges who are adjudicating upon cases involving the Government may have their decisions coloured by knowledge that the same Government will be determining their prospects for promotion. An independent judiciary is one cornerstone of a modern democracy. Judges ought to be appointed on grounds of legal ability. An overtly political and politicised system for appointments undermines judicial independence. It is a measure of maturity in a constitutional system that judges will occasionally overrule the executive. This is something to be celebrated, not criticised. No government branch should be free from checks. Furthermore, constitutional courts in civil-law countries follow an entirely different model. Even in these systems, appointment of justices is not left entirely in the hands of ruling politicians. This aspect is especially problematic due to the fact that all common checks on the government, such as the existence of a second house of parliament and the subjection of the legal and political system to transnational arrangements (such as the EU or the ECHR) are absent in the Israeli context. Constitutional review of legislation The proposal is to curtail the power of courts to strike out legislation and to prohibit completely the courts from striking out Basic Laws or amendments to Basic Laws. In the UK, the courts do not have the power to strike out provisions of primary legislation made by the Westminster Parliament. However, they can strike out primary legislation of the devolved jurisdictions, interpret legislation so that it complies with human rights norms (including interpretations that strain the 4 meaning of the text), issue declarations of incompatibility where legislation doesn’t comply with human rights norms, and generally interpret legislation so that it conforms with fundamental constitutional values. The bicameral structure of the UK parliament promotes deliberation and dialogue between the Houses. The House of Lords, as a revising chamber in the UK’s Parliament does have the practical power to restrict legislation being enacted which undermines constitutional norms; it is also the initiator of a body of legislation. Israel does not possess these checks and balances. In their absence, the power of the Israeli courts to strike out legislation is a key constraint on what would otherwise be an unbridled power for the Knesset to legislate. Furthermore, the ability of the Knesset to designate any law as a Basic Law renders that law completely immune from judicial consideration. The removal of constitutional review of legislation designated as “Basic Law” (an easily achieved designation) will directly impair any existing commitment to the protection of human rights, so central to any well-functioning democracy. Override power for Knesset over court judgments The proposal is that the Knesset has the power to override a judgement of the Supreme Court with which they disagree by a majority vote in the Knesset. This proposal would negate the role of courts and destroy the separation of powers doctrine. The Knesset makes the law and it is for the courts to interpret that law and apply it in particular cases. If the Knesset abrogates the power of the courts to interpret law and instead gives that power to itself, then the tripartite division between executive, legislature and courts instead becomes a bipartite division between executive and legislature. There will literally be no point in trying to bring a case against the Government because even if the Government loses, it simply passes a new law stating that it wins. Abolition of the “reasonableness” doctrine in judicial review of administrative action The proposal is that lack of “reasonableness” will no longer be a valid ground upon which courts can rule administrative action unlawful. The rule of law does not allow courts to substitute their personal judgement for the judgement of the Government or official bodies. But it does require that decisions of the state are rational, lawful, based on sound criteria and justified by evidence. The requirement of reasonableness is an important aspect of this. In the UK, the bar for this test is set at a high level, sometimes expressed as something which is so unreasonable that no reasonable pubic authority would do it. This test is one way of guarding against arbitrary or capricious decision making by officialdom. As such it forms an important part of an efficiently functioning state. To remove it allows the state to act unreasonably without thought of judicial accountability. Role of the Attorney General The proposal is that the Government can either accept or reject the legal advice of the Attorney General, and that the Government can engage a separate lawyer to represent them in court if they don’t agree with the approach being taken by the Attorney General. Honest and independent legal advice is an important component in a mature constitutional system. As with all lawyers, the role of law officers and legal advisers to Government is to give the correct legal advice, rather than the advice that their client wishes to hear. An independent Attorney General is one bulwark against the state acting unlawfully. The fact that a lawyer is unable to make a particular argument in court suggests that it would be better to drop the argument than to drop the lawyer. This proposal would sideline the Attorney General and remove another constitutional check upon the Government. Conclusion A state can function on the basis of untrammelled power resting in an executive authority, but it cannot claim to be a modern and democratic state at the same time. Democracies must include a system of checks and balances, otherwise they become tyrannies of the majority. These proposed reforms systematically unpick fundamental constraints on the power of the Government. Independent judges, the ability to review legislation, respect for the finality of court judgements, reasonableness as a criteria for official action and an independent Attorney General – these all make for a constitutionally sound and stable state rooted in the rule of law, human rights and the separation of powers. We join our Israeli colleagues in calling for these reforms to be cancelled. Signed: Dr Haim Abraham, UCL Faculty of Laws Professor Alan Bogg, Professor in Law, University of Bristol Law School Paul Brand, FBA, Emeritus Fellow, All Souls College, Professor of English Legal History, University of Oxford Professor Ruth Chang, Professor of Jurisprudence, University of Oxford Professor Mindy Chen-Wishart, Dean, Faculty of Law, University of Oxford Dr Ronan Cormacain, Consultant Legislative Counsel Paul Craig, Emeritus Professor of English Law, University of Oxford Professor Tsilly Dagan, Professor of Taxation law, Faculty of Law, University of Oxford Nuno Ferreira, Professor of Law, School of Law, Politics and Sociology, University of Sussex Professor Sandra Fredman, Faculty of Law, University of Oxford Professor Dev Saif Gangjee, Faculty of Law, University of Oxford Professor Joshua Getzler, Faculty of Law, University of Oxford Dr Rotem Giladi, Senior Lecturer, Roehampton Law School, London Professor Sir Roy Goode KC, Emeritus Professor of Law, University of Oxford Dr Florian Grisel, Associate Professor of Socio-Legal Studies, Faculty of Law, University of Oxford Dr Julius Grower, Associate Professor of Law, University of Oxford Dr Nikola R. Hajdin, Fellow with the Faculty of Law and Christ Church, University of Oxford Laura Hoyano, Emeritus Professor of Law, University of Oxford Professor Dori Kimel, Reader in Legal Philosophy, University of Oxford Professor Marina Kurkchiyan, Emeritus Fellow, Emeritus Fellow, the Centre for Socio-Legal Studies, University of Oxford Dr Thomas Krebs, Brasenose College, University of Oxford Professor Nicola Lacey FBA CBE, Law School, London School of Economics Dr Grant Lamond, Associate Professor in Law and University Lecturer in Legal Philosophy, University of Oxford Professor Virginia Mantouvalou, Professor of Human Rights and Labour Law, UCL Faculty of Laws Donald McGillivray, Professor of Environmental Law, University of Sussex Professor Daniel Monk, Birkbeck, University of London Professor David Nelken, King’s College London Professor Colm O'Cinneide, Professor of Constitutional and Human Rights Law, UCL Faculty of Laws Dr Aisling O’Sullivan, Senior Lecturer in International Law, Co-Director of Sussex Centre for Human Rights Research, University of Sussex Professor Amir Paz-Fuchs, Professor of Law and Social Justice, Head of Department, School of Law, University of Sussex Professor Justine Pila, Faculty of Law and St Catherine’s College, University of Oxford Professor Irit Samet, Professor in Law, King’s College London Professor Anat Scolnicov, Department of Law, University of Winchester Rt Hon Sir Stephen Sedley, former Lord Justice of Appeal for England and Wales, judge ad hoc of the ECtHR, and visiting professor of law, University of Oxford Dr Hilary Sommerlad, Professor of Law & Social Justice, School of Law, University of Leeds Dr Bosko Tripkovic, Associate Professor of Law, Birmingham Law School, University of Birmingham Professor Avrom Sherr, Emeritus Professor, Institute of Advance Legal Studies, London David Vaver, Emeritus Professor of Intellectual Property & Information Technology Law, University of Oxford Professor Mark Walters, Professor of Criminal Law and Criminology, Sussex Law School, University of Sussex Professor Lucia Zedner, Professor & Senior Research Fellow in Law, University of Oxford Professor Katja Sarah Ziegler, University of Leicester Dr Reuven (Ruvi) Ziegler, Associate Professor, University of Reading School of Law Professor Adrian Zuckerman, Emeritus Professor of Civil Procedure, Faculty of Law, University of Oxford.