On August 30 Justice Minister Ayelet Shaked spoke at a meeting of the Israel Bar Association on the occasion of the opening of the judicial year (the return of the courts from their summer recess). Shaked chose to speak about the danger that excessive legislation poses to the individual’s freedom and to the free market. Her attack was directed especially against private legislation, even though government legislation is no less a culprit.
The position that Shaked presented is a republican position – which is clearly expressed by Republican Party in the United States, who take the concept of “personal freedom” to the extreme of opposing limitations on the possession of arms by citizens, and opposition to national health insurance.
While I object to Shaked’s thesis on both ideological and practical grounds, I agree with her that the excessive private member legislative initiatives are a major problem that ought to be addressed.
Nevertheless, I believe her speech was noteworthy, both because of its clear ideological coherence, and because of her candor.
When I first read a report of the speech my reaction was that in light of the fact that as an MK in the course of the 19th Knesset, Shaked’s name appeared on no less than 138 private members’ bills (PMBs), her new position was sheer hypocrisy.
However, when I lay hands on the full text of the speech I saw the following paragraph: “By the way, I must confess – and since we are at a small and intimate event I am sure that what I say will remain among us – the way I saw the issue of legislation as an MK is very different to the way I see things today.
As Minister of Justice, who is responsible for the entirety of legislation in Israel, the vast ramifications and the peripheral damage are clear to me today as they were not clear to me in the past. I am trying to apply the lessons I learned, first of all by limiting legislation in my ministry.”
An honest admission, not devoid of that rare commodity among our ministers – humor.
What worries Shaked is that every piece of legislation passed – whether it adds a whole new law or merely changes a word or adds a sentence to existing legislation, further limits the freedom of the individual, and/or curtails the working of the free market.
She is right, of course.
However, even though freedom is a supreme value, personal freedom must be balanced by other values such as human rights and obedience to the law, while economic freedom must be regulated to avoid abuse by the powerful, and balanced by such values as distributive justice. None of this can be achieved without legislation.
But to return to the evils of excessive private legislation. Today around half the legislation passed in Israel originates in PMBs, even though only five percent of the PMBs submitted become law.
This was not always the case, as Shaked rightly pointed out in her speech. There are numerous reasons for the increase in PMBs submitted, including the introduction of primaries in many parties, which encourage MKs who wish to be reelected to demonstrate legislative activity; the fact that Israeli governments since the late 1980s have found it difficult to agree on a coherent legislative program, which has resulted in most of the environmental laws and many laws on social and welfare issues being introduced by MKs; the growing influence of lobbyists representing powerful private interests, who push for the passage of laws in their clients’ interests, etc.
The problem with the quantity is that both the Knesset’s Legal Department and the Ministerial Committee on Legislation (the committee which Shaked chairs) are flooded by bills, and much time is wasted dealing with them. As Shaked mentioned in her speech – since the current government entered office her committee has fended off over 1,100 bills.
Whether or not one agrees that the problem with the vast number of bills submitted and passed is that they act to diminish our personal freedom, there is undoubtedly a need to drastically reduce the number of bills submitted.
I am sure that Shaked has no illusions about her chances of convincing MKs that for the sake of our personal freedom and the free market they should reduce the number of bills they submit. However, there are alternative ways to deal with the problem. At the end of the 17th Knesset there was an initiative by the then government secretary and Knesset secretary general to work out a package deal, by which the government would drastically cut the notorious Economic Arrangements Law in exchange for a drastic reduction in the number of PMBs submitted, and greater efforts by the Knesset to deal effectively with urgent government legislatives initiatives.
In the 19th Knesset and the beginning of the 20th Knesset there were initiatives by MKs to reach a deal with the government under which the government would be more cooperative with regard to parliamentary oversight of the executive, in return for a reduction in the number of PMBs submitted.
All these initiatives came to naught, largely because the governments led by Netanyahu were not cooperative. However, I believe that if Shaked should decide to try to tackle the problem seriously, she might succeed where others failed.
The writer is a political scientist.