The Government’s Legal Advisory System in Regulatory Contexts

Policy Paper 2/2023*

In January 2023, Justice Minister Yariv Levin announced the government’s intention to promote far-reaching changes in the Israeli legal system and its central institutions, which play a key role in restraining the governing power in the Israeli democratic system. This policy paper discusses the proposed changes in the government’s legal advice institution, which includes the attorny general and the legal advisors to the government ministries.

The proposed legislative moves aim to eliminate the independent status of legal advisors in the Israeli government’s legal advice system and the binding nature of their opinions. This would result in a significant change in their role as it has been shaped over the years in Israeli law.

The initiators of the legislative moves promote a partial and misleading narrative, focusing on the claim that the legal advisors in the government’s legal advisory system hold exceptional status and powers beyond those held by any equivalent on the globe. According to them, the legal advisory institution allegedly violates democratic principles such as “public will”, “governance” and “responsibility”.

This narrative is based on a flawed and misleading framing, which completely ignores the purposes for which the powers were vested in the hands of the legal advisors in the first place, as well as the overall context of the constitutional reality in Israel.

The status of the government’s legal advisory institution must be examined in light of the powers given to the government and its ministers, and in view of the overall array of the checks and balances in our system.

While the Israeli government enjoys exceptional power and authority compared to other Western democracies in the world in a variety of fields, the array of restraining mechanisms is much narrower and weaker than those customary in the other democracies. In view of the deficit in checks and balances in the unique regime structure in Israel, the importance of the government’s legal advisory institution is revealed as one of the crucial restraining mechanisms on the government’s operations.

The policy paper discusses the scope and characteristics of the excessive powers held by the Israeli government and its ministers in the context of economic regulation. Unlike most democratic countries, where regulatory agencies are professional and independent, many regulatory powers over the private market in Israel are delegated to non-independent regulators subordinated to the political echelon (the ministers and their government ministries). This state of affairs raises concerns for abuse of governmental power for the promotion of narrow political and personal interests at the expense of the broader public interest.

The concentration of economic power in Israel, coupled with the unique connections between political parties that can influence the regulatory decision-making process and supervised players in the private market, has raised concerns about the formation of phenomena such as “regulatory captivity” and capital-government relations. Accordingly, the public interest is at risk to be harmed in two ways: the regulatory process is biased in favor of business interests, and the political process is “polluted” in a way that characterizes a democratic deficit.

Given the lack of effective external supervision factors, the existence of an effective gatekeeper is essential to ensure that the powers entrusted to the political level are exercised in accordance with the law. The policy paper examines the unique institutional advantages of independent legal advisors in government ministries, highlighting the concern that eliminating their independence could result in unrestrained governmental power influencing the regulatory decision-making process in Israel, favoring supervised entities with excess influence.

*The policy paper was compiled by Brandeis Institute researchers, Anat Sorek (Adv.) and Ira Hardy (Adv.)

On July 9, 2023, a round table meeting was held at the Brandeis Institute, for the discussion of this policy paper. The panel was attended by the former Minister of Justice Dan Meridor, the retired Deputy President of the Supreme Court Prof. Eliakim Rubinstein, the retired Supreme Court Judge Meni Mazuz, the former Deputy Attorney General for Economic-Fiscal Affairs Adv. Didi Lachman Messer, and the former legal advisor for the Ministry of Communication Adv. Noga Rubinstein. The round table meeting available (in Hebrew) below: