Garvan Walshe is a former national and international security policy adviser to the Conservative Party
The battle between Benjamin Netanyahu and the courts heated up last week, as his government rammed through a new law aimed at clipping the wings of Israel’s Supreme Court. The law hopes to prevent the court overruling government decisions on grounds of “reasonableness”. As soon as it was passed, cases were filed, at that very court, asking it to strike down the new law.
These were accompanied by elite pilots refusing to serve, resignations from other combat units, downgrading by international credit agencies (disappointing conspiracy theorists everywhere, who thought they did the bidding of the Israeli Prime Minister) and even hints of dissent from perhaps the people most loyal to the State of Israel: the scientists who work on Israel’s notionally secret nuclear programme (as the father of one of Israel’s opposition leaders once said to me: “Israel has no nuclear weapons. Having said that, we have a policy of no first strike”).
The defence minister, in a manner recalling Mark Milley, US Chairman of the Joint Chiefs, in the days before Donald Trump’s January 6th insurrection, took the trouble to point out that the Army would obey the law.
So what is going on? Who is actually in charge? Can the new law indeed be struck down – even though the court doing the striking down would be the one affected by it? Can Israel’s Prime Minister actually expect this new law to be upheld, since he is in the middle of a judicial process to try him for corruption?
These disputes between the executive, legislature and judiciary are normally settled by a codified constitution, but Israel, like the UK, is unusual in the modern age in not having one. This has usually been thought to be to the executive’s advantage but, on occasion – and this is one of them – it favours the judiciary.
People with short memories think of this as a left-v-right-wing dispute, but in the United States, for example, where the Supreme Court has a right-wing majority, it is the left that wants to reduce judicial power.
The issue is not the codification of the constitution, but “entrenchment”: whether there is or should be a difference between what is needed to enact an ordinary law – regulating, say, the display of calories on restaurant menu – and fundamental changes to the constitutional structure of the country
Each liberal democracy answers this question in its own way, but Israel and the UK are closest to concluding that there’s no difference.
The height of this tradition in Britain was probably the period after the Second World War, in which Dicey’s idea that the Crown-in-Parliament was sovereign had evolved into the notion that, for most purposes, a majority in the House of Commons was enough – at least for matters that had been put to the people at a general election, and that, the British electoral system being as it is, it was enough to give one party enough seats in the Commons, even if it had only 40 per cent or so of the popular vote.
The Statute of Westminster, which regulated the role of Dominion parliaments, had been overtaken by events and various judicial doctrines, including “Wednesbury unreasonableness” (a narrower concept than the Israeli one of the same name), and the concept of constitutional statutes lay in the future.
One might deplore this evolution, and prefer a political system in which a majority of the House of Commons or the Knesset could do as it likes, but that isn’t quite the system that operates in the modern world.
Nor was it ever correct. Indeed, limited entrenchment is provided by the Parliament Act – using a device first resorted to by the pre-Union Scottish Parliament: the Commons can’t use the Parliament Act to pass a law changing the frequency of elections. The Lords must give their consent to any such change before the monarch is able to give royal assent to the bill. This is compatible with the sovereignty of the Crown-in-Parliament, but not, of course, with the sovereignty of the House of Commons.
Second, in Britain the courts reserve two rights to themselves: to interpret legislation and to ensure everyone has their day in court: that’s why they’ve taken dim views of so-called “ouster clauses”, usually deployed in recent years to deprive asylum seekers of these most traditional British rights and occasionally hint, citing the Case of Proclamations from 1610, that they might in extreme cases set aside (the British courts are too polite to use the words strike down) legislation.
Israeli courts rely on the far more recent Declaration of Independence (1948) and have struck down (Israelis are not known for their politeness) laws that they think violate it. But it has never struck down a “basic law”. That is the Israeli term for fundamental legislation – a bit like our constitutional statutes – but the convention has, so far, been that it is enough for the Knesset, like the special constable’s mother, to stipulate that they are basic for them to become so.
Whether mere stipulation is indeed enough is one of the questions that the Court will address in September – as also the related question of whether self-defined basic status is enough to ram radical legislation through.
In its effort, the Court will have the people on its side. Public opinion has turned sharply, with Israelis either opposing judicial reform outright or supporting it only if it emerges from a broad consensus that includes the opposition parties and most state institutions.
The country’s business community, trade unions and international investors back the Court, too. One can never rule Netanyahu out, of course, but this time it looks like he has snookered himself.
It is less clear whether his radical coalition partners will go quietly. If the Court does strike the law down, the police, army and the Shin Bet (internal security service) will have to tread carefully in enforcing a judgement unpopular with a sizeable minority of their ranks. They will need to do so before Israel’s democratic majority takes enforcement into its own hands.