Primary and Secondary Legislation
מתוך אתר 'חוקה בהסכמה רחבה' של וועדת חוקה חוק ומשפט, כנסת ישראל.
Who may propose legislation?
According to the Neeman proposal, "A legislative bill shall be proposed to the Knesset by the Government or a Member of Knesset."
Currently, in practice, Knesset committees also propose legislation.
MK Avraham Burg (Labor) preferred that proposal of the legislation by a Member of Knesset be listed as the first option, thereby indicating that this, and not proposal by the government, is the default option. In reality, said Committee Chairman MK Michael Eitan, the opposite is the case. MKs, with their limited time and staff are able, at best, to oversee and adjust legislation.
Doctor Amnon Reichman of Haifa University questioned the necessity of defining this stage of the legislative process in the Constitution, rather than leaving it open to ordinary legislative adjustments depending on future developments. Eyal Sandberg did not agree that such a central and sensitive procedure should be easily changed. Such a change could fundamentally affect the balance of power between branches of government. Hebrew University Professor Claude Klein stated that it would be illogical for ordinary legislation to set the procedure for enacting ordinary legislation.
Would the Constitution render all legislative proposals invulnerable?
Dr. Hillel Sommer of the Interdisciplinary Center in Herzliya cautioned that by inserting the mechanism for legislative proposals into the constitution, the Knesset would have no way to prevent racist or intentionally inflammatory proposals from reaching the Knesset floor, unless such a preventive ability were also inserted into the Constitution.
Rationale for barring racist or unconstitutional legislative bills
Just as political parties are barred from running for Knesset based on racist platforms, argued MK Burg, it follows logically that MKs should be barred from proposing racist legislation. Similarly, MK Reshef Chen (Shinui) argued that as it would be barred by the Constitution from taking effect, MKs should be barred from proposing such legislation.
Continuing with this logic, MK Chen proposed that all unconstitutional legislation, as determined by the Knesset Legal Advisor (or, in the case of legislative bills originating with the government, the Attorney General), be barred. MK Chen stressed that this would not include constitutional amendments.
MK Eitan reversed this argument, asking if the power to preemptively block certain legislation, by barring it from even being proposed, is no longer necessary once the Constitution blocks this legislation. The true motivation for blocking such legislative proposals, said Dr. Sommer, is not to ensure their failure, which is a forgone political conclusion, but to deny them the platform and attention of Knesset debate.
MK Eitan argued that the ostensibly legal opinions rendered on this matter would inevitably be based on politics and personal ideology. MK Chen had faith that the opinions would be professional, and that were they not, MKs could appeal to the High Court of Justice for relief.
Dr. Sommer argued that MKs should be entitled to propose bills, regardless of the likelihood or even certainty that, should the bill be passed, the Supreme Court would void the law as unconstitutional.
Restrictions on legislative proposals - in the Constitution only
Barring a legislative proposal, much like barring a party from running for Knesset entirely (though perhaps less serious), is not to be taken lightly, stated Dr. Sapir of Bar Ilan University, and this subject belongs more properly in the Constitution. The Committee accepted this recommendation.
Substantive vs. procedural limits
Dr. Sommer suggested including only substantive instructions in the Constitution, leaving procedural instructions for ordinary legislation. MK Burg, on the other hand, felt that broad procedural directions could be included as well.
Doctor Reichman preferred that the Constitution empower the Knesset to use ordinary legislation to decide on substantive limits on legislative proposals. Eyal Zandberg warned that this would give the Knesset unduly wide freedom to limit legislation, and even to limit debate on legislation. MK Burg suggested legislating certain parameters on legislative proposals, but leaving the Knesset chairmanship a degree of discretion, in order to effectively screen out extremist racist legislative proposals without barring mainstream proposals.
Costs and benefits of barring legislative bills
MK Yuli Tamir (Labor) questioned whether the benefits of barring certain legislative proposals would not be outweighed by the costs, in terms of potentially blocking legitimate opinions. A strong statement against a racist or otherwise unacceptable bill could just as easily be made by voting down such a bill by a 119-1 margin. MK Eitan added that the bill in question would receive public attention regardless of whether it was formally entertained by the Knesset. Some ideas, said Dr. Yitzhak Klein of the Israel Policy Center, deserve a "public execution," and a 119-1 vote against a bill would indeed serve as fitting "public execution."
Which substantive limits?
MK Tamir felt that racist bills should be blocked. Other offensive bills, including bills affecting the Jewish nature of the state, should be formally allowed, as a wide spectrum of opinion on the nature of this matter is legitimate. MK Eitan replied that differentiating, for this purpose, between the Jewish and Democratic definition of the state would be politically untenable, and suggested avoiding this problem by refraining from placing any substantive limits on legislative proposals.
In most countries, explained Dr. Sommer, stiffer procedural requirements for legislative bills, and not substantive requirements, serve to screen out racist bills. Professor Claude Klein of Hebrew University agreed, noting that many countries recently have included substantive Constitutional limitations on proposed Constitutional Amendments.
While Dr. Sapir was uncertain that such a limit on legislative bills was necessary, he reported that Israel would not be the first state to provide the Legislature with an "oversight mechanism" over its own legislation. MK Eitan responded that the Knesset’s "oversight mechanism" was its vote.
The Committee decided to create a version of the proposal with no substantive limits on legislative bills, and another version including such limits.
Special majorities for non-Constitutional legislation
The committee discussed whether ordinary legislation could require a special majority, in order to be amended or otherwise effected. Dr. Sommer reviewed the two approaches to this question. According to the first approach, it is appropriate to entrench certain legislation, even though it is not Constitutional in nature. According to the second approach, the Knesset is sovereign, and may enact, amend or override any ordinary (non-Constitutional) legislation, even in defiance of the will of a previous Knesset.
MK Eitan stated that any Knesset would have at its disposal the ability to enact a Constitutional Amendment, should 70 MKs so decide, and it would be illogical to allow a smaller number of MKs to entrench non-Constitutional legislation, such that a greater number of MKs would be necessary in order to override it. Dr. Reichman felt that it would be legitimate for the Knesset to be empowered, by the Constitution, to entrench certain ordinary legislation with a requirement that it be amended only with a particular quorum, though that quorum should never reach 61 MKs.
Secondary Legislation (regulations)
Definition of Regulations
The committee began debate with the following, from the Neeman Commission proposal:
Eyal Zandberg explained that regulations have general normative legal meaning, as opposed to administrative decisions, which relate to individual cases.
Tzvi Kahana suggested omitting the qualifier regarding "legislative effect," and leaving to the court questions of the precisely distinction between regulations and administrative decisions. MK Eitan felt that this definition would be too broad.
MK Haim Oron stated that the public is extremely confused regarding the authority of various regulations, particularly when certain regulations require approval of Knesset committees in order to take effect. Eyal Zandberg replied that all regulations, regardless of the procedure, are identically labeled "regulations," and have identical authority. The differences in procedure merely reflect the degree of independence that the Legislature decides to grant.
Dr. Sommer and MK Oron suggested forgoing the phrase "legislative effect," and instead defining regulations as "secondary legislation" enacted by authority of primary legislation. Eyal Zandberg replied that this would create uncertainty regarding certain actions falling within a grey area between administrative actions and regulations, for example the granting of permits. It would then be unclear whether this type of action required Knesset authorization.
Eyal Zandberg stated that, regardless of the terminology used in its description, henceforth any action with legislative effect would necessarily derive its authority from primary legislation.
Yaakov Shapira proposed the following language: "Secondary legislation may be enacted via decree, regulation or executive directive, in all cases by authority of legislation or other means." It is important, he continued, that the definition of regulations as having "legislative effect" appear elsewhere in the Constitution. This definition would require regulations to be general (and not affecting specific individuals), and to be published.
Legislation targeting specific individuals
Legislation affecting specific individuals is problematic, stated Dr. Reichman, in terms of separation of powers. The Legislature’s task is to legislate for a non-specific public, and this must also be the target of secondary legislation. Elsewhere in the Constitution, it must be noted that the Executive branch has the separate authority of enacting individual directives. Eyal Zandberg stated that this latter authority properly belongs in the Executive Chapter.
In reality, stated Dr. Reichman, the Executive does succeed in “making contact” with individuals through these individual directives. Haim Oron replied that the Legislature acts regarding the entire public. The Executive then exercises that power regarding individuals. Dr. Reichman, however, felt that such authority to issue directives regarding individuals should be found elsewhere in the Constitution.
Eyal Zandberg explained the court’s long-held tests regarding the definition of "secondary legislation:"
If the answer to both these questions is affirmative, the item is secondary legislation, regardless of the terminology.
Regardless of the replacement of the terminology “regulation” with “secondary legislation”, said Eyal Zandberg, the definition of such acts as having “legislative effect” is still imperative, as lacking this definition the matter will be open to interpretation. MK Eitan disagreed, feeling that the term “secondary legislation” was sufficiently clear. Aliza Rosen, however, pointed out that the term “secondary legislation” has come to be used to mean many different types of Executive acts, including some which do not change any legal status of an unspecified group.
MK Burg suggested including a Definitions chapter, both to minimize confusion regarding pre-existing terminology and to define new terminology.
The Committee decided that the chapter would be titled “Secondary Legislation”, and that the proposal would, in one version, use the term “legislative effect”, while in the other would specify the definitions listed above.
Identity of the secondary legislator
From the Neeman Commission proposal:
Eyal Zandberg stated that the list of bodies which can be authorized to enact regulations was unclear. Secondary legislation is simply a matter of the Legislature allowing its authority to devolve to a different body, he said, and it is important to prevent that authority from devolving very far away from its origin.
Professor Somer pointed out that the authority would only devolve as far as the Legislature decided. However, Eyal Zandberg responded that the ability to legislate should remain chiefly in the hands of the Knesset, and allowing it to devolve drastically would violate the principles of the rule of law.
The committee discussed whether the above definition was truly useful, as it could be understood to include an extremely wide variety of private contractors, advisors, and entire regulated professions, or to exclude even certain vital functions of government.
The Committee decided to proceed with two versions of the proposal; the first would stipulate that “a law may empower the government, a member of the government, a government authority, or one who holds a position or fills a role therein to enact regulations”. The second would omit the words “a government authority”.
Supremacy of primary legislation over secondary legislation
MK Eitan questioned the necessity of this paragraph. Professor Zilbershatz replied that in the past laws had been passed which explicitly empowered a secondary legislator to enact regulations which would take precedence over other primary legislation, a situation widely decried as inappropriate.
Subject matter of secondary legislation
Professor Kahana felt that the definition of the possible purposes of regulations, as being “to enact regulations for the execution of the law, or for another matter” was too broad.
Professor Zilbershatz explained that while, in principle, more important matters should be decided by primary legislation, practical and professional factors cause important matters to be decided by secondary legislation as well. This dichotomy requires that the Constitution take extra care in determining the identity of those who may potentially enact secondary legislation, as there is no pragmatic method to limit the subject matter of secondary legislation.
MK Eitan did not think that the Knesset would readily surrender its power to authorize whomsoever it chooses to enact secondary legislation.
Dr. Reichmann felt that the opposite approach should be taken, empowering the Knesset to authorize any person serving a public function by law, but limiting the type of matter which could be the subject of secondary legislation. He proposed excluding “primary arrangements” from being determined in secondary legislation. This phrase would naturally be subject to judicial interpretation.
Eyal Zandberg stated that the Knesset often essentially abrogates its duty, empowering the Executive to regulate enormous areas of life.
MK Eitan related how dozens of laws, including major legislation with civil rights ramifications, and even an entire restatement of the civil code, were all slated for debate in the Knesset Constitution, Law and Justice Committee, leaving no realistic possibility of sufficient or serious review of the matters, unless the Constitution allows the Knesset the flexibility to entrust and empower others with certain matters.
Dr. Reichmann questioned whether anyone outside the Knesset should be entrusted with the entire civil code. MK Eitan responded that many laws are in any case passed without the Knesset’s review, and that he preferred the situation be portrayed with transparency.
MK Oron questioned whether this issue properly belonged in the Constitution, or whether what was required was simply the exercise of proper care on the part of the Knesset.
Professor Kahana proposed omitting any definition of either the subject matter of regulations or the identity of those who could be empowered, stating that the court would void any regulation which affected human rights (even within the bounds of the limitation clause), as only primary legislation may do so.
Professor Zilbershatz pointed out that the original intent of the Basic Law: Human Dignity and Freedom had been to allow only primary legislation – i.e. only the legislature, and not the executive – to utilize the limitation clause, but this Basic Law was subsequently amended, as it became clear that the situation was impossibly impractical.
The amended Basic Law: Human Dignity and Freedom allows utilization of the limitation clause by primary legislation, or “according to law, by explicit authority therein”. Professor Zilbershatz supported the adoption of similar language in the Constitution, thereby clarifying that the Knesset has the authority to empower others to enact secondary legislation, including in areas of utmost importance such as human rights, so long as the authorization is explicit.
Professor Zilbershatz explained that the phrase “or for another matter for which authorization is determined” was meant to complete the construction of this dynamic, allowing the Knesset to empower others to implement a law, or – by explicit instruction – to create actual legislation.
The Committee decided to amend the wording of the proposal, such that it read “…or for another matter for which authorization is determined explicitly”.
Knesset approval of regulations
Knesset members frequently have no idea what they are approving, stated MK Burg, and the Knesset serves as no more than a rubber stamp for many regulations requiring Knesset approval.
MK Burg added that it would be necessary to find an alternative to the many people currently empowered to enact regulations, should the proposal be adopted.
In order not to determine the particulars of the structure of the executive decades into the future, MK Oron preferred giving as expansive a definition as possible.
By simply stating that “the Knesset will oversee” legislation, said Prof. Kahana, the proposal strikes a balance, leaving the Knesset with independence to decide how to oversee legislation, while also leaving open the possibility for an individual to petition the High Court of Justice if the Knesset were to act unreasonably in exercising it’s oversight role.
Dalit Dror of the Ministry of Justice feared that the paragraph could be viewed as requiring any legislation to spell out the type of oversight applicable, and suggested that the Constitution define the method of oversight.
Positive oversight vs. default approval
The committee discussed whether regulations establishing criminal acts would require actual Knesset approval, or whether the lack of disapproval would suffice.
Aliza Rosen informed the committee that this decision would impact an enormous number of regulations.
Dr. Reichmann opined that no person should be imprisoned simply because the Knesset had not bothered to go to the trouble of overseeing a regulation. MK Eitan felt the same should apply to a fine.
Parliamentary oversight vs. committee oversight
The Committee discussed whether the required approval would be that of the Knesset, that of the appropriate Knesset Committee, or of whichever the primary legislation required.
Dafna Ben Porat, of the Knesset Research and Information Center, stated that it is frequently appropriate to require the approval of both the Knesset and a committee, and often that of more than one committee.
The Committee decided to adopt two versions of the proposal, one requiring active approval of any regulation carrying a penalty, and the other requiring such approval only for regulations carrying penalties of prison sentences. Knesset establishment of the penalty in primary legislation would serve as the necessary approval of the regulation.
Inherent authority of Ministers to enact regulations
The committee discussed whether a minister should be automatically authorized to enact regulations to enforce a law within his purview, even without explicit authorization in the primary legislation.
Eyal Zandberg did not think this was a Constitutional matter, as nothing about such an instruction would in any way override ordinary legislation or limit the Knesset’s abilities.
Prof. Kahana objected to the principle of legislation without Knesset authorization.
Penalties for violation of regulations
From the Neeman commission proposal:
Eyal Zandberg noted that this paragraph both expands the powers of secondary legislation, allowing criminal penalties to be so created, and at the same time sets limits to these powers.
Two types of situations were noted in this regard:
The second situation was said to be further from the ideal of leaving primary matters on the hands of the primary legislator. For this reason, the proposal limits the extent of the penalty which the primary legislator may empower the secondary legislator to enact.
Dalit Dror predicted that even the six-month limit on prison sentences in regulations would be easily circumvented by enacting primary legislation with a very broadly defined crime and a longer prison sentence, leaving the secondary legislator extreme freedom in defining the details of the crime.
An arrangement necessitating the complete definition, in primary legislation, of all the details of a crime, was viewed as completely impracticable.
Propriety of regulations establishing prison sentences
Prof. Kahana objected to the possibility of regulations establishing any prison sentence.
MK Eitan did not accept as necessarily accurate the qualitative distinction between prison sentences and fines.
Professor Zilbershatz viewed regulations establishing any prison sentence as a serious divergence from the idea of separation of powers, wherein the executive could imprison a citizen. MK Eitan, on the other hand, stated that the judiciary would still have the final decision.
Some government workers, said Edwin Freedman, might easily view the violation of regulations in their field as deserving of a far more serious sentence than would the Knesset.
MK Oron suggested allowing the Knesset to empower the secondary legislator to autonomously enact fines, but that regulations involving prison sentences would always require Knesset approval.
Dalit Dror, speaking on behalf of the Deputy Attorney General for Legislation, resisted a limit on retroactivity. Dr. Reichmann voiced the opinion that such legislation is flawed.
Eyal Zandberg explained that these opinions reflect the tension between constitutional principles, on the one hand, and practical considerations, on the other.
Professor Yaakov Shapira proposed that retroactive legislation require a special majority, such as an absolute majority. He added that an absolute ban on retroactive legislation would cause chaos, as such legislation is often passed to enable a government activity to continue, after it becomes clear that the government was not originally authorized by law to conduct said activity. Banning retroactive legislation would actually force the government to carry out drastic, abrupt, and logistically nightmarish changes.
Dr. Reichmann objected to the possibility of the government withdrawing legal rights that an individual thinks are already safely his. However, Eyal Zandberg stated that this would be dealt with more narrowly in the Constitution’s Chapter on Rights. Dr. Reichmann agreed that retroactive legislation granting rights should not be banned.
The Committee decided to require an absolute majority for passage of retroactive primary legislation, and to require Knesset approval for retroactive secondary legislation.