The Arrangements Law and omnibus legislation

The Bar-Ilan workshop simply affirmed that omnibus legislation exists in quite a few countries – and is problematic.

By SUSAN HATTIS ROLEF
Updated: JANUARY 7, 2019 17:40
Bar Ilan University, engineering department (photo credit: BAR ILAN UNIVERSITY/ WIKIMEDIA COMMONS)
Bar Ilan University, engineering department
(photo credit: BAR ILAN UNIVERSITY/ WIKIMEDIA COMMONS)
Last week the Bar-Ilan University Law Faculty held an international workshop under the convoluting title of “Rearranging the Arrangements Law: Comparative, Multidisciplinary Empirical and Normative Perspectives on Omnibus Legislation.”
The title was designed to cover a very wide range of papers presented by jurists and political scientists from Israel, North America and Europe, in most of whose states omnibus legislation exists, plus a few practitioners from Israel – senior officials primarily from the Knesset, the Ministries of Finance and Justice. It was, apparently, the first-ever international conference to focus on the subject of omnibus legislation. The organizer and living spirit behind the workshop was Dr. Ittai Bar-Siman-Tov of the Bar-Ilan Law Faculty, who specializes in legislation from a legal point of view. I was delighted when Bar-Siman-Tov invited me to participated in this workshop, since I viewed the mere holding of such a conference as a little private victory. Back in 2005, as a researcher in the Knesset Research and Information Center, I wrote a document about our Hok Hahesderim (Economic Arrangement Law), in which I presented its history as a system first introduced by the National Unity Government of Shimon Pres and Yitzhak Shamir in 1985, to deal with the economic crisis of that period, and which is still with us to the present day.
In the second part of my document, I tried to contend with the general belief at the time in Israel that “there are no such things (i.e. the likes of the Arrangement Law) in the world.” I argued that we do not have a patent on the problematic phenomenon, which exists in quite a few states. In the Knesset itself there was quite a bit of resistance to what I had written, while the Ministry of Finance was delighted, as if what I had written somehow gave the Arrangement Law moral approval.
The Bar-Ilan workshop simply affirmed that omnibus legislation exists in quite a few countries – and is problematic.
Why is it problematic? Because omnibus laws are laws that contain a large number of diverse subjects that are not necessarily related to each other. They can reach hundreds and even thousands of pages in length and are usually passed in parliament in an expedited procedure, which makes serious debate – not to mention proper scrutiny – impossible. In March 2018, the US Congress passed a 2,232 page $1.3 trillion Appropriation Bill that the Congressmen had less than 48 hours to go over before voting on it.
Omnibudget legislation (a term invented by the Canadians in relation to their Budget Implementation Acts) are omnibus laws that contain diverse amendments to existing laws and new legislation allegedly all pertaining to the implementation of the budget. I say ‘allegedly’ because riders are frequently attached to them that have nothing whatsoever to do with the budget - just like in Israel.
ALL OVER the world, omnibus legislation is considered problematic and part of what is known as the parliamentary “democratic deficit.” It is justified primarily by those who complain that parliaments in parliamentary systems are unable to cope effectively with important government legislation by conventional means and by individual legislators who have difficulty getting their bills through in presidential democracies.
When the subject of the deficiencies of such laws come up in the courts of the states where such laws exist, in most cases they are declared to be constitutional, unless there is a ‘single subject rule’ provision in their constitution. The single subject rule is a provision that states that a bill should contain a single subject only, and exists in 43 of the US States (but not on the federal level), as well as in Greece, Columbia and several other South American States and the Polynesian island state of Tonga. An interesting question that courts discuss in states where there is no single subject rule, is whether they can and should intervene in the work of parliament when there appear to be serious problems on the procedural level – i.e. that the law was passed in disregard of procedural rules. As a rule, the courts are wary of intervening.
In her reaction to a paper presented on Spain, Prof. Suzie Navot pointed out that there are great similarities in the approach and practice of our High Court of Justice (HCJ) and the Spanish Constitutional Court.
It is impossible in a single article to summarize a threeday conference in which a vast variety of papers was submitted, but I should like to mention a few points that caught my attention. The last paper presented on omnibus legislation was delivered by a professor from Sweden, which does not have this form of legislation. The paper focused on the reasons why such legislation does not exist in Sweden.
Dr. Bar-Siman-Tov pointed out that he had decided to include this paper in the workshop in order to indicate to our Finance Ministry that even though omnibus legislation exists in various countries, this doesn’t mean that it is the rule.
Unfortunately, there wasn’t a single representative from the Finance Ministry when this paper was presented. The majority of countries do not have omnibus or omnibudget legislation, and find alternative means of amending existing legislation in order to implement their budgets. But even if one decides that it should be done by means of a single budget implementation bill, the Maltese example is interesting. Malta has a budget implementation act that is a boring piece of legislation of perfectly reasonable dimensions, which receives attention primarily from accountants. Though there is nothing to stop the Maltese government from introducing anything it likes into this bill, it sticks to amendments that are directly connected to the budget.
The only session in the conference that was held in Hebrew was one in which several past and present high officials from the Finance and Justice ministries participated, and in which the legal advisor to the Knesset, attorney Eyal Yinon, was supposed to appear.
Unfortunately, Yinon was obliged to cancel his appearance at the last moment, and thus the Knesset was not represented on the panel. (MK Stav Shaffir was a member of the panel, but chose to speak about her hobby horse: budgetary transfers, rather than on the Arrangements Law).
Thus, the opportunity was missed to try to hold a balanced and productive discussion between the Knesset and the government about how to resolve some of the faults of the current system. Though there were several relatively junior representatives from the Finance and Justice Ministries who attended most of the workshop sessions, it is not clear whether what was said in these sessions will actually make its way to the decision makers in their ministries, to enable a more informed and fruitful dialogue to take place between them and the Knesset.
The workshop was opened by former president of the Supreme Court, Justice Dorit Beinish, who had penned the historic HCJ ruling in the Poultry Growers case back in 2004, which lay down several important principles on the issue of the Arrangements Law. It was closed by Supreme Court Justice Neal Hendel, who was member of the HCJ makeup that sat on the Tax on the Third Apartment case in 2017, which took Beinish’s ruling regarding the Arrangements Law one step forward. Handel participated in a panel that dealt with the role of Mishpat Ivri (Hebrew Law) in the Israeli judicial system, which didn’t relate directly to the subject of omnibus legislation, but certainly caught the attention of the guests from abroad.
Hopefully, the papers presented at the workshop will be published in some form for everyone’s benefit.