The suspension of Parliament in a ‘no-written constitution’ legal context has left the UK in constitutional limbo. In this blog, Solon Solomon offers some thoughts on the Israeli constitutional experience. He argues that Parliament should have a substantial role in the Brexit process, let alone be permitted to sit in the first place.
On September 11, the Scottish Court of Session, Scotland’s highest court, ruled that prorogation of the House of Commons was unlawful. In that sense, and no matter how the UK Supreme Court will ultimately opt to resolve the issue, the particular judgement constitutes a clear imprint of Scotland’s voice in the Brexit debate. More importantly, the judgement renders central the role Parliament should have in this major political process. However, even if we agree that this role should be central, there are other considerations that need to be addressed. For example, whether Parliament is meant to issue authoritatively binding decisions or just recommendations and guidelines to the government. The question is of great importance in jurisdictions lacking a written constitution like the UK. It is with this in mind, in this post I draw some parallels with Israel and the Knesset.
Israel is one of three countries which together with the UK and New Zealand do not have a written constitution. Israel has in place Basic Laws of constitutional nature which regulate the relations between the government and the legislative body, the Knesset. Yet, these Basic Laws do not contain provisions on whether and to what extent Parliament can intervene in a political process undertaken by the government which if followed, is bound to affect the country’s future for years.
Rather in Israel, parliamentary intervention in major political agreements is secured through reliance on constitutional custom rather than on positivist law. In the Weiss v. Prime Minister case, the Israeli Supreme Court, noting that the government had pledged to bring the Oslo agreements to the Knesset for ratification, accepted that constitutional custom could potentially constitute the basis of such practice. Yet, the Court stressed that the constitutional custom should not go that far so as the government would require the consent of the Knesset in advance in order to conclude this international agreement.
This stance means that in the UK case, a Westminster intervention through legislation in order to abort the government’s choice to deliver Brexit would be a step too far. On the other hand, it could be argued that a parliamentary intervention of prolonging the Brexit exit deadline is merely technical measure which just facilitates rather than derails government policy. By having voted for such an extension, the MPs do not want to avoid Brexit altogether, but give more time to the government to adequately prepare for the country to ultimately leave the Union.
In this regard, the Israeli context provides more relevant evidence. Whereas Parliament cannot intervene and dictate to the government which new international treaties and agreements to sign, the Knesset must intervene once government seeks to alter the terms of political agreements already in place that affect the relations of the State with its neighbours. For example, in 2005, in the course of Israel’s disengagement from Gaza, the Legal Adviser of the Knesset Foreign Affairs and Defence Committee, Adv. Miri Frenkel-Shor argued successfully (see also here) that the retreat of the Israeli army from the Philadelphi corridor, a part of the Gaza Strip for which arrangements were included also in the Camp David Accords between Israel and Egypt, constituted an amendment of the latter peace agreement and thus should be approved by the Knesset. Hence, when it comes to the amendment or annulment of existing agreements, the Israeli legal order requires an active and substantial intervention of the Knesset.
Brexit should not be perceived to be only about the conclusion of new trade deals and agreements. Rather, to the extent that these cannot be signed while the UK is still an EU member, Brexit should be considered primarily as the annulment of an existing political agreement, namely that of the EU accession. Yet, drawing on the Israeli experience, it would be wrong to see Brexit as falling inside the government’s exclusive prerogative to run foreign affairs, beyond any parliamentary supervision. Ultimately, Parliament should be allowed to voice its stance, let alone permitted to sit in the first place.
This post represents the views of the author and not those of the Brexit blog, nor the LSE. Image: Israel National Photo Collection: Public Domain.
Solon Solomon is Lecturer in the Division of Public and International Law at the Brunel University London School of Law.