On July 7, one day before the announcement of Operation Protective Edge, Prime Minister Binyamin Netanyahu announced his agreement to the holding on the following Sunday of deliberations in the government regarding the transparency of the meetings of the Ministerial Committee on Legislation.
The Ministerial Committee on Legislation is responsible for determining the government’s position with regard to both government-initiated and private members’ bills, but the demand for transparency, raised by several ministers, numerous MKs and NGOs, is related to the latter.
A negative decision by the committee regarding a private members’ bill does not in itself prevent its being debated in preliminary reading in the Knesset plenum, but it ensures that after that the bill will be buried. One of the complaints of MKs is that in the absence of transparency regarding the committee’s deliberations and decision, there is nothing to stop ministers from rejecting bills without serious consideration, and even out of sheer spite.
Two private members’ bills dealing with the transparency of the committee’s proceedings have been submitted in the course of the 19th Knesset – one initiated by MK Orit Struck (Bayit Yehudi) and the other by MK Nitzan Horowitz (Meretz). In other words, this is not a partisan issue; the divide is primarily between members of the government on the one hand, and backbenchers on the other.
Most recently it was the chairman of the Ministerial Committee on Legislation herself, Justice Minister Tzipi Livni (Hatnua) – one of the few champions of greater government transparency – who asked that the issue be raised in the government, after the government secretariat and the government legal advisers stated that getting the committee to publish its minutes and decisions did not require legislation, but a government resolution to change the government’s rules of procedure.
However, until last week, Netanyahu, who rejects the initiative, refused to raise the issue in the government, and his change of mind apparently resulted from his being convinced that there is a majority in the government supporting his position.
Since ministerial committees are extensions of the government plenum, designed to reduce the workload of the latter forum, and since government meetings are confidential (government minutes in Israel are closed to the public for 40-50 years), the same rule applies to the meetings of ministerial committees. The logic of this practice, which is prevalent in all other democracies, is that it ensures that ministers are able to express their opinions freely, and reduces the prevalence of cheap populism.
In an interview on the army radio station Galei Zahal, Finance Minister Yair Lapid stated a week ago that he objected to Livni’s initiative, arguing that the equivalents to the Ministerial Committee on Legislation in the US and the UK also work under strict confidentiality. However, While it is true that in both the US and the UK parts of the legislative process are confidential, these two examples are totally irrelevant.
In the case of the US this is because in a presidential system the administration is unable to lay bills on Congress’s table, and all bills are submitted by Congressmen.
When the president wishes to get legislation through he must negotiate with Congressional leaders in a process that usually involves some pretty heavy horse trading and which is carried out far from the public eye. Needless to say there is nothing in the US that even resembles our ministerial committee.
As to the situation in the UK, a ministerial committee on legislation does exist there, but it deals exclusively with government legislation, and especially the annual legislative program presented by the government in the queen’s speech at the opening of each parliamentary session. In other words, this committee has nothing to do with private members’ bills, which are negligible in the UK both in numerical terms and importance. Since the Israeli government has no legislative program – neither annual nor any other – as with the American case, the British example is totally irrelevant.
In fact, the problem with legislation in Israel is not lack of transparency, but rather lack of coherency. First of all, with regard to government bills, unlike in other parliamentary democracies, where it is the government which submits most of the legislation, usually in a planned and systematic manner, in Israel there is no annual plan, largely because the government doesn’t have a comprehensive plan as to what it seeks to achieve each parliamentary session (or in general). Furthermore, because of the incoherent governments we have, ministers are frequently as concerned with blocking the legislative initiatives of other ministers as with initiating legislation of their own.
However, the main problem in the Israeli system is the torrent of private members’ bills that floods both the Knesset and the Ministerial Committee on Legislation. Why there are so many private members’ bills in Israel is a separate subject, but the fact is that every session over 1,000 such bills are submitted. These bills are not part of a comprehensive policy program, but a medley of initiatives which express MKs’ personal hobby horses; copies of old bills that failed to get through in the past and thus do not require much effort on the part of the MKs resubmitting them; the fruit of pressure groups; and even bills initiated by ministers trying to circumvent the rather chaotic legislative process within the government.
Only around five percent of these bills are ever passed into law, constituting around half the laws approved by the Knesset. Around 20 percent of the bills submitted reach preliminary reading, and it is these that the Ministerial Committee on Legislation is called upon to review. In other words, every Knesset session, the committee must review over 200 bills, and it is simply unable to hold serious deliberations on each of them, even if it was determined to do so. Because the committee’s deliberations are not transparent we do not know what percentage of the bills is rejected by it on grounds other than merit, but it is certainly not the lack of transparency that is the main problem.
In fact, an attempt was made in the course of the 17th Knesset, when Ehud Olmert was prime minister, to try to sort out the mess. The government secretary at the time, Oded Yehezkel, made some serious efforts to introduce order into the government’s legislative activities, while together with the secretary-general of the Knesset, Eyal Yinon, he tried to introduce some order into Knesset-government relations, legislation included.
In 2008-2009 Yehezkel and Yinon held several meetings, with the participation of ministers, MKs and senior staff members from the government and the Knesset, to work out a package deal that would resolve a whole assortment of issues, including the quantity of private members’ bills submitted, coordination between MKs and the relevant ministries before such bills are submitted, opening bottlenecks in the treatment of government legislation in the Knesset (especially at the committee stage), and reducing the dimensions of the scandalous annual Economic Arrangements Law, which is a means of circumventing proper legislative procedures in the Knesset.
However, Yehezkel and Yinon submitted their proposals (which for some inexplicable reason were never made public) to Olmert and Knesset speaker Dalia Itzik just before the elections to the 18th Knesset, and after Netanyahu’s second government was formed following the elections it transpired that the new government secretary was not interested in the subject, while Yinon was moved to the position of Knesset legal adviser, and his replacement as secretary general was not as determined as he was to bring about change in this sphere.
Due to the current security situation it is unlikely that the transparency issue will be raised in the government before Operation Protective Edge is over. When it eventually is raised, it will undoubtedly be rejected. I just wonder when the ministers, MKs and NGOs that are demanding transparency will realize that transparency is not really the issue. The issue is rationalizing the whole legislative process.
I wish someone would revive the Yehezkel-Yinon initiative.The writer is a retired Knesset employee.
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