WORK OF THE REVIEW
In the Prime Minister's Office, in the following Ministries: The Ministry of Justice, of Housing and Construction, Health, Education, Agriculture and Rural Development, Welfare and Social Services, and Industry Trade and Labor, means have been examined of dealing with disputes of substance between Government Ministries. Included in this, a questionnaire was sent to the Directors General of 15 Government Ministries with a view to obtaining information about substantive disputes that have arisen between their Ministry and other Government Ministries.
SYNOPSIS
The Government is the executive authority of the State, and the field of its responsibility in terms of governance is extremely wide. Accordingly an in accordance with the Basic Law: The Government, it provides for, with the approval of the Knesset a division of work and fields of expertise according to Ministries. However in practical terms, even after determination of such a division of labor there are fields of activity and powers vested in the hands of several Ministries together. Additionally, on some occasions the division of labor between the Government Ministries is not clear, and therefore from time to time, disputes arise between the Ministries as to the powers and methods of working, including disputes that have continued for many years without being resolved. For as long as such inter-Ministerial disputes are unresolved, they cause damage to the public at large or to specific population groups who are entitled to receive a particular service from the State and are prevented from doing so because of the dispute.
In this report, the office of the State Comptroller has considered disputes that prevailed during the period of 2006-2010 between Government Ministries engaged in executive action , which continued for more than one year and caused systemic damage or harm to citizens (hereinafter - Substantive Disputes).
WORK OF THE REVIEW
In March-August 2010 the Office of the State Comptroller examined the methods of dealing with substantive disputes between Government Ministries. The examination was made in the Prime Minister's Office (hereinafter - PMO), in the Ministries of Justice, Housing and Construction, Health, Education, Agriculture and Rural Development, Welfare and Social Services (hereinafter the Ministry of Welfare) and Industry Trade and Labor (hereinafter - The ITL). In addition thereto, the Office of the State Comptroller forwarded a questionnaire to the Directors General of 15 Government Ministries in which they were asked to provide information about substantive disputes that had occurred between their Ministry and other Government Ministries (hereinafter - The Questionnaire). The Office of the State Comptroller also examined how other States cope with the handling of disputes between Ministries by means of laws and working procedures, for example procedures for the establishment of Ministerial Committees in Britain.
THE MAIN FINDINGS
Unresolved substantive disputes
1. The large number of prolonged disputes. It was apparent from the answers of those questioned in the Questionnaire that in 2006-2010 there were at least 40 substantive disputes some of which had continued for more than a decade and most of them had not yet been resolved. It should be emphasized that in practical terms the number of disputes is much larger, because the Directors General of the Ministries had only raised the most prominent of them in the Questionnaire.
2. Damage caused by the disputes: The damage caused by the substantive disputes can be classified into direct damage, which has caused harm to various population groups among the public including weaker sections of the population, and, economic-administrative damage to the functioning of the Government, as detailed below:
(a) Direct damage: As a result of disputes, Government Ministries have not provided certain population groups with a service to which they were entitled, and as a consequence have caused them direct damage in various spheres, as illustrated hereafter: (1) Risk to public health - due to a prolonged dispute between the Ministry of Welfare and the Ministry of Health, which has continued for more than 15 years, children and youth staying in institutions of the Ministry of Welfare have not received, following psychiatric hospitalization, an appropriate answer to complex therapy-related problems. (2) Infringement of the principle of equality - because of a dispute between the Ministry of Education and the Ministry of Health, during a period of at least 3 school years the State has not provided ancillary medical funding for some of the students who have complex health related needs and require close medical supervision during school study hours and are entitled to funding of this by law . Because of this some of them have not regularly participated in studies.
(b) Economic-Administrative damage: The dispute also had an adverse effect on the functioning of Government Ministries due to a waste of resources, absence of a uniform policy and lack of coordination of action between various bodies: (1) Duplication of systems in various Ministries, such as two systems for supervision of approved engineering and technical training colleges that were being operated at least until the end of 2010 by the Ministry of Education and the Ministry of ITL , and who worked without coordination between them. (2) Increase of the load on public systems, such as the Courts; for example, because of the aforementioned dispute between the Ministry of Education and the Ministry of Health regarding the responsibility for medical supervision funding for needy students, the District Court, in August 2009, was required to charge the State with providing funding for medical supervision for students where they were prevented from receiving it.
Mechanisms for Resolution of Disputes
Basic Law: the Government provides, inter alia that the Government bears joint responsibility vis a vis the Legislative Authority, and every Minister is responsible, as a Minister, for the affairs of his Ministry vis a vis the Prime Minister. In other words the implementation of Government decisions is laid at the door of the Ministers and they are responsible for carrying them out even where disputes between the Ministries arise in respect of them.
Over the years, several ad-hoc mechanisms have been formulated for solving substantive disputes. Government Ministries who were in dispute maintained contacts at the various ranking levels, and sometimes appointed working teams or inter-Ministerial Committees for solving the disputes. A process of this nature is important and worthy, but it does not provide an answer for all the disputes - and the evidence for this is that our examination revealed scores of substantive disputes that had continued for a long time and remained unresolved and not having been dealt with.
Mechanisms prescribed for the handling of disputes: The Government in its decision , and the Attorney General in his directives , have prescribed that in a case of a legal dispute between the State Authorities, the Attorney General shall decide the issue. The Government has stipulated in the Government Working Code (hereinafter – The Government Code) that "where legal authority is vested in two or more Ministers and there is no agreement between them as to the exercise of such authority, the Minister that has requested that his colleague exercise joint authority and has not received a reply within 30 days - shall bring the dispute before the Prime Minister". The responsibility for resolving inter-Ministerial Disputes thus rests first and foremost with the Government Ministries and the Ministers heading them, and if there is a dispute that has not yet been successfully resolved, the Minsters must refer it to the Prime Minister.
The Attorney General: As a general rule disputes have reached the Ministry of Justice for decision principally as a result of a request of Ministries in respect of legal issues that are in dispute in relation to them, or as a result of legal proceedings brought against the State, where the Attorney General is required to make a decision regarding the State's position. On frequent occasions the Ministry of Justice has handled disputes referred to it by external agencies, for example: It was only as a result of an application of the "By Right" non-profit society to the Ministry of Justice in a preliminary High Court of Justice petition proceeding in July 2009, regarding a dispute as to the responsibility for funding medical supervision, the Ministry of Justice intervened in the dispute and prodded the Directors of the Ministries involved in the dispute to advance along the route that would enable students to be provided with the essential service to which they were entitled by statute. In addition to purely legal disputes, the Attorney General has also dealt with complex disputes that have budgetary aspects and aspects of determination of policy. It is apparent that the Attorney General handled the legal aspects of some of these disputes and a further stage was necessary in order to resolve the dispute following a referral of continued attempts to resolve it, to other headquarters agencies, such as the Ministry of Finance or the Prime Minister's Office; this has caused a prolongation of the process of resolving the dispute.
The Prime Minister and his Office: It appears that the Prime Minister's Office has handled disputes that Ministers have referred to the Prime Minister in relation to matters that stand at the head of the Government's order of priorities, on matters relating to policy, and those with political ramifications and in respect of disputes that entail major budgetary aspects. It also arose from the examination that the Prime Minister's representatives play a substantial role in resolving disputes referred to him. However it appeared on the one hand that Ministers and Government Ministries had referred to the Prime Minister, inter alia, inter-Ministerial disputes that it was not necessary to refer to him as the Authority in the matter was vested in other statutory agencies, and on the other hand the Ministries had not referred to the Prime Minister in relation to some of the substantive disputes which according to the Government Code should necessarily involved the Prime Minister's Office, and he was therefore not able to take action in order to resolve them due to the involvement of outside agencies that had raised them, such as the Knesset, The High Court of Justice and the State Comptroller.
Committees of Ministers: The Government Code prescribes, inter alia that the Government shall appoint permanent, interchangeable committees of Ministers or for particular matters and shall determine their composition and their powers. According to the Director General of the Prime Minister's Office, the Committees of Ministers mechanism is one of the mechanisms prescribed for the resolution of inter-Ministerial disputes and it is intended to facilitate discussion and a decision in disputes between Ministers on subjects not requiring the convening of the Cabinet. However it appears that of the 41 Committees of Ministers established by the 32nd Government up to December 2010, it had not empowered any Committee to discuss a solution to inter-Ministerial disputes. It should be noted that among the disputes examined by the office of the State Comptroller no dispute was found where the Ministers had referred to the Committees of Ministers. It is apparent from this that although it would appear that the Committee of Ministers are likely to act as a mechanism for the resolution of inter-Ministerial disputes in the spheres with which they are charged with responsibility - by means of engaging in joint deliberations of the parties concerned in the dispute - it has not been prescribed that they will act as such a mechanism and they are accordingly not acting as such a mechanism.
Non-use of mechanisms prescribed for the handling of disputes: Cases were found in which the Ministers and the Directors General had not submitted the substantive disputes to the mechanisms that were intended to deal with them - the PMO and the Attorney General. For example in the case of a dispute between the Ministry of Welfare and the Ministry of Health because of which the State did not provide any auxiliary aids for rehabilitation, such as wheelchairs for disabled persons staying in support institutions of the Ministry of Welfare; also during the period of service in office of the 31st Government the Minister of Welfare at that time, Knesset Member Yitzhak Herzog raised the dispute in a discussion with the Minister of Health at that time, Knesset Member Yaacov Ben Izri, and subsequently, in June 2009, the dispute was raised for discussion with the Deputy Health Minister, Knesset Member Yaakov Litzman. As the then Minister of Welfare did not succeed in resolving the dispute with the Minister of Health within 30 days, he should have brought it before the Prime Minister as prescribed in the Government Code and not refer the matter back for dealing with by the Director General of his Ministry in conjunction with the Director General of the Ministry of Health, which is what he actually did.
The need for a regularized procedure for the resolution of inter-Ministerial disputes
It appears from the foregoing that both the Prime Minister and the Attorney General have a substantial role to play in the resolution of disputes. However many substantive disputes have not been brought to their attention. It is therefore incumbent upon the Prime Minister's Office to create tools for identifying these disputes and for the Prime Minister's attention to be drawn to the matter in question. Such tools could be based, inter alia on public complaints and advertisements in the media, as well as on reports of the State Comptroller and the Public Complaints Ombudsman.
It is the Government's duty to exercise its executive responsibility and reduce, as far as is possible, the amount of inter-Ministerial substantive disputes. This is not only a legal-constitutional obligation originating in the Basic Law, but it is also a public duty of the Government vis a vis the citizens of the State. As part of this duty it is appropriate that the Government shall determine a general outline for the resolution of inter-Ministerial disputes in order to improve the means of handling them and to mitigate the damage caused by them. First of all in this outline the governance-public responsibility of the Ministries and the Ministers must be sharpened not to neglect substantive disputes, especially those that adversely effect the public and in particular weaker sections of the population, whose voice is not always heard. The Government must act in respect of this outline in two principal approaches:
1. A proactive approach: It is not possible to completely prevent such disputes arising but proactive steps must be taken to reduce them and prevent them ahead of time, which should properly define the spheres of authority and responsibility and diminish the chance of such disputes arising. This must be done by "tightening up" actions on subjects of legislation, as well as by means of the strengthening and regulation of the inter-Ministerial coordination actions, including the creation of forums for discourse, such as joint committees of Ministries engaged in inter-related fields and a forum of Directors General of the Government Ministries.
2. A reactive and regulatory approach: A structured program must be formulated which will include procedures and mechanisms for the existence of an efficient and beneficial process for resolution of disputes. In this context it would be appropriate to set a timetable for every stage of the dispute resolution process until its conclusion. Additionally, responsibility for resolution of the dispute must be assigned first and foremost to the Ministers and Ministers concerned, and in addition to stipulate that the Government is committed to act proactively in identifying disputes and working to resolve them.
CONCLUDING SUMMARY AND RECOMMENDATIONS
The findings of this report reveal one of the problems encountered in the difficult tasks of all past Israeli Governments: There are tens of disputes between the Government Ministries, some of them continuing for many years without any solution being arrived at. These disputes have caused substantial damage to the public - some of it direct, principally to the weaker population groups, and some of it indirect, economic-administrative damage to the Government Ministries and to the State Treasury.
At the time of conclusion of the review there is no structured and methodical process for the resolution of inter-Ministerial disputes, and within this empty space the Ministries who are in dispute are proceeding with casual initiatives without a guiding hand and in the absence of any clear framework; they are doing this by various means, which are worthwhile so long as they are effective and facilitate resolution of the dispute within a reasonable period of time.
The findings of this report also reveal that the existing mechanisms for the handling of inter-Ministerial disputes are insufficient. The responsibility for resolution of the disputes does indeed lie with the Ministries and the Ministers, each in his own sphere and should they not succeed in doing so it is incumbent upon them to bring them to the attention of the Prime Minister; however the Government is also committed by virtue of its joint responsibility to act in a proactive manner in order to identify prolonged disputes that are damaging to the public and resolve them in any way that it deems appropriate.
In view of the findings of this report, an in depth discussion is required by the Government and the making of a decision to deal with the existing problem by means of a regulatory process for the resolution of inter-Ministerial disputes that adversely impact on citizens who are unsuccessful in obtaining the services to which they are entitled and economic-administrative damage.