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פורום המרצות והמרצים למשפטים למען הדמוקרטיה

منتدى محاضري القانون من أجل الديمقراطية

The Israeli Law Professors’ Forum for Democracy

פורום המרצות והמרצים למשפטים למען הדמוקרטיה

منتدى محاضري القانون من أجل الديمقراطية

The Israeli Law Professors’ Forum for Democracy

Senior British Experts’ Response Concerning the Comparison of Israel & UK: Position Paper #13

עודכן: 16 במרץ 2023

As a part of their campaign, supporters of the regime change compare the legal systems of the United Kingdom and Israel, in a way that is mistaken and misleading. The following position paper, written and signed by some of the leading experts on UK public law, provides accurate information on the British legal system. 

Among the signatories of the position paper are former President of the UK Supreme Court (2012- 2017) Lord David Neuberger, former Minister of State for Justice (2013-2016) Lord Edward Faulks KC, senior barrister and member of the House of Lords Constitution Committee (2008- 2021) Lord David Pannick KC, and two professors from UCL, a leading university in Britain. 

The writers of the attached position paper clearly contradict the claims made by supporters of the regime change, and demonstrate the role of the House of Lords as an active second legislative body that initiates legislation and routinely supervises the actions of Parliament. Furthermore, recent proposals for reform in the UK have left unscathed the role of the House of Lords as a primary constitutional protector. 

The position paper examines and rejects the claim that since the United Kingdom’s courts affirm the legal doctrine of legislative supremacy of the Parliament, the judiciary cannot affect the design and execution of public policy. The Human Rights Act 1998 provides courts with two powers in this regard—to interpret legislation in a way that protects human rights, including by departing from the legislature’s intended meaning (section 3), and by issuing a declaration of incompatibility (section 4), which under the legal culture of the UK it is ultimately followed by parliamentary/governmental action that removes the incompatibility. The power to declare incompatibility is often mistakenly considered the only power the UK judiciary possesses; however, while this power has been employed by courts about 30 times, courts have read down statutes that violate human rights in nearly 60 cases. 

Beyond the Human Rights Act, the UK courts have exercised their historical role under the common law to provide a potent restraint on executive power. For example, the Supreme Court intervened in the processes of the UK’s departure from the European Union. Even following Brexit, the writers of the position paper stress, the UK parliament and nearly all its governments affirmed the crucial importance of observing its international legal commitments, including by remaining a state party to the European Convention on Human Rights and continuing to abide by the judgements of the European Court of Human Rights. Membership of this system of human rights imposes further noteworthy constraints on legislative processes.

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