Violation of Section 85(a) of the Knesset Regulations - Normative Consequences
- Does a determination that amendments made to a particular bill substantially deviate from the subject matter of the original bill imply that this is a defect that goes to the root of a proceeding? In general, it seems to me that the answer to this question is yes (although of course there may be exceptional cases). The reason for this is that amendments that substantially deviate from the original bill may have a direct impact on the law's compliance with a rule, which is perhaps the most basic of the legislative rules in our districts, which stipulates that a law will be passed in three readings (with the exception of a private bill, which must also be passed in a preliminary reading; see: section 74(a) of the Knesset Regulations; Nimrodi case, p. 157; Litzman case, pp. 589-590); a rule that is indeed enshrined in the regulations, But it has also seeped into the main legislation, and even into the Basic Laws, "in a manner that gives expression and anchor to this demand" (for details, see: High Court of Justice 2337/21 The Movement for Quality Government in Israel v. the Attorney General, para. 15 [Nevo] (February 22,2022) (hereinafter: High Court of Justice 2337/21); see also: Mizrahi Bank case, p. 534; but compare: Ariel Bendor "Judicial Review of Legislative Proceedings" Sefer Salim Jubran 45,57-56 (2023)).
- In practice, a legislative arrangement that includes amendments that substantially deviate from the subject matter of the original bill is an arrangement that did not pass its first reading, with all that it entails (see, for example: High Court of Justice 2337/21, the opinion of my colleague, Justice Grosskopf); This is for the simple reason that it is a different law - not only in the formal sense, but also in the substantive sense - than the one that the Knesset voted on in the first reading. I am of the opinion that it is difficult, very difficult, to see a law that did not pass the first reading as a law that did not have a flaw that goes down to the root of a proceeding. Any other interpretation of the provision of section 85(a) of the Knesset Rules of Procedure would revoke, to a large extent, the obligation - which is also anchored, as noted, in the Knesset Regulations - to pass a law in three readings. In fact, as some of the petitioners noted, such an interpretation is liable to have far-reaching implications, since it would allow bills that passed the first reading to be used as a kind of legislative 'skeleton' that could be poured, during the preparation for the second and third readings, content that does not have a 'substantive connection' to the bill that passed the first reading, and thus skipped, from a practical point of view, the requirement to pass legislation in three readings.
- As noted above, the case law defined a defect that goes to the root of a proceeding as a defect that constitutes a "severe and substantial" violation of the basic principles of the legislative process. Formally, a legislative arrangement that includes amendments that substantially deviate from the scope of the subject matter of the original bill, such that it includes components that, in practice, did not pass the first reading, directly violates the provisions of the Knesset Regulations. From a substantive point of view, such a legislative arrangement violates the principle of majority decision, since the legislative laws in our districts stipulate that a law is required to be ratified by a majority 3 times (or 4, in the case of a private bill) - and no less:
"The principle of majority determination in the legislative process therefore relates to those rules that regulate the nature of voting, such as the requirement for a regular majority and a special majority, and the rules regulating the voting process [...] Indeed, in order for a law to be passed, the bill must win a majority in each of the three readings (in a government bill), and the absence of this majority at one stage of the legislation is a defect that goes to the root of the process, which will lead to the declaration of the law null and void" (Poultry Breeders Case, p. 44; emphasis added - v. S.; see also: Litzman case, pp. 591-592).