Written by David Pannick KC in The Times.
A degree of tension between the government and the judiciary is a sign of a healthy democracy. For the government to seek to control the appointment of judges and try to reduce judicial power is a sign of authoritarianism, as recent events in Israel demonstrate.
Israel has no written constitution but it does have a series of basic laws, including one guaranteeing human dignity and liberty that was adopted in 1992. The country’s supreme court has interpreted such provisions as conferring power on judges to invalidate inconsistent laws approved by the Israeli parliament, as well as decisions of the executive. It has done so on many sensitive issues, such as upholding the rights of Palestinians and challenging exemptions from military service for some religious Jews.
The government of Benjamin Netanyahu, Israel’s prime minister, is proposing to take control of the committee of judges, lawyers and politicians that decides on judicial appointments. It is seeking to severely restrict judicial oversight of the constitutionality of legislation. Not coincidentally, Netanyahu is facing criminal proceedings for alleged corruption.
The proposed legislation has been opposed by the supreme court’s president, Esther Hayut, and by her predecessors, Aharon Barak and Dorit Beinisch — as well as by many former judges, and by the vast majority of the legal profession in Israel. Defying the concerns expressed by Isaac Herzog, Israel’s president, who has suggested a pause for dialogue, the government secured a first reading for the proposed laws on Monday.
Netanyahu argues that other countries, such as the UK, do not allow for judicial supervision of legislation. But in this country judges, appointed independently of the government, have a duty under the Human Rights Act 1998 to do their best to interpret legislation consistently with human rights principles. Where that is impossible they can declare legislation to be in breach of those principles. Parliament has always then legislated to respect such a declaration of incompatibility.
The UK is committed to complying with judgments of the European Court of Human Rights. And this country has a House of Lords, which regularly reminds the government of basic constitutional principles.
The constitution of each country is different. But among the basic principles of a democracy are that the government should not have unfettered power to enforce the will of the majority and that an independent judiciary has an important role in defending basic rights and the rule of law. These norms are as important in Israel as anywhere else. It has only a one-chamber parliament, and is a complex society where the interests and demands of the various communities regularly conflict.
Checks and balances are of vital importance to any constitutional democracy, as governments in Israel and elsewhere regularly need to be reminded. That is why it is good news that the UK Bill of Rights Bill, promoted by Dominic Raab, the justice secretary, to emasculate the Human Rights Act, is now in the fridge. Indeed, so far at the back of the fridge that no one can find it.
Lord Pannick KC practises from Blackstone Chambers and is a crossbench peer