Reviewing Continuity in Legislation

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In Israel, the rule of continuity of legislative debate is routinely applied. According to this rule, the incoming Knesset continues the legislative discussions of the outgoing Knesset as if they were its own. Thus, a law may be enacted after passing its first reading in one Knesset and its second and third readings in a later Knesset. The rule of continuity was legislated to promote efficiency in the Knesset’s work and is based on the perception of the Knesset as a “continuing body,” despite the changes in its membership.

This article argues that the rule of continuity shapes the character of Israel’s representative democracy in a manner that ought to be rejected. It raises serious democratic problems by undermining the meaning of elections, binding one Knesset through the actions of another, and raising questions of accountability with regard to enacted legislation. The rule of continuity also shapes the Knesset’s debates in a way that infringes upon the right of all Members of Knesset to participate properly in the legislative process. This infringement upon the right to debate is particularly severe with respect to new Members of Knesset, who were not present for the first reading in the previous Knesset and are thus disadvantaged in their ability to influence the substance of the legislation ultimately passed.

The rule of continuity entrenches a formal majoritarian democracy instead of a substantive democracy grounded in minority rights. It entrenches a democracy based on decision rather than deliberation. Moreover, the rule of continuity has strengthened the government’s position within the Knesset while weakening the power of individual Members of Knesset, parliamentary factions, and even Knesset committees. It grants the government tools to secure a majority in manipulative and artificial ways.

As such, the rule of continuity ought to be abolished, so that each new Knesset begins with a clean slate in terms of the legislative process. The rule of continuity should not be legislated — not as an ordinary law, and not as a Basic Law. In its current form as an ordinary law, it certainly does not withstand constitutional scrutiny and should be deemed void. If the Knesset nevertheless chooses to legislate it anew, it must do so as a Basic Law, and it should condition the application of the rule of continuity on the attainment of broad agreement among Members of Knesset.

Suggested citation:

Reviewing Continuity in Legislation, 38 Tel-Aviv University Law Review 563, 563-643 (2016) [Hebrew].