First “boycott ban” case defeated in UK high court

In February UK minister Matthew Hancock announced anti-BDS measures with Israeli Prime Minister Benjamin Netanyahu. (Prime Minister of Israel/Flickr)

The first case to cite the UK government’s attempt to quash boycotts of Israel failed in the high court on Tuesday.

A group of anti-Palestinian lawyers brought a case in October against three local councils. They had passed motions supporting the movement to boycott, divest from and sanction Israel, or BDS.

The Palestine Solidarity Campaign said in a statement that it was “victory for the Palestinian-led boycott, divestment and sanctions campaign and for democracy.”

One pleased council leader called the ruling a “victory for free speech.”

Elected local governments in North Wales and the English city of Leicester passed the motions in October and November 2014.

They came months after Israel’s devastating summer attack on the Gaza Strip which killed more than 2,200 mostly civilian Palestinians, including at least 550 children.

The third motion, added to the case, was passed in 2010 by the council of the South Wales city of Swansea. It called on council leaders not to do business with Veolia, a French infrastructure company which was then deeply involved in Israel and its settlements.

Years of successful BDS campaigning forced Veolia to withdraw from Israel and the occupied West Bank, with the final step taken in August 2015.

“Ban” fails first test

The case was the first known attempt to rely on the so-called “BDS ban” which the UK government has attempted to impose on local government bodies.

The Conservative government issued new guidance in February aimed at stamping out boycotts of Israel.

The note was launched by a UK government minister in a joint press conference with Israeli Prime Minister Benjamin Netanyahu in Jerusalem, and trailed in the media as “boycott ban.”

The document stated that public bodies such as local councils and some universities could face fines in civil court cases if they boycott signatories to a World Trade Organization agreement on purchasing. Israel is among the agreement’s signatories.

But Palestine solidarity campaigners argued that the document in reality still allowed local bodies to consider ethical procurement.

Activists immediately protested the move as an attack on freedom of speech and a dishonest attempt to intimidate human rights campaigners and local elected officials, calling it “smoke and mirrors.”

Development charity War on Want said “the boycott ban does not actually ban all boycotts.”

Jewish Human Rights Watch

The anti-Palestinian lawyers who brought the case argued that the councils had violated equalities law as well as the new anti-BDS guidance note.

High court judges Peregrine Simon and Julian Flaux disagreed and dismissed the case. The claimants on Tuesday called the ruling “disappointing.”

A registered company calling itself Jewish Human Rights Watch had brought the case. Despite its name, its main record is one of misrepresenting Palestine solidarity campaigners as “anti-Semitic” and attacking them with spurious lawsuits – “lawfare.”

It was established in 2014 by Manny Weiss.

According to Conservative justice minister Michael Gove, Weiss is one of his “great friends” and a “generous supporter” of the Henry Jackson Society – a hard-right Islamophobic and anti-Palestinian neoconservative group.

The judgment states that Jewish Human Rights Watch’s claim to have “consulted widely among the Jewish community before bringing the [legal] claim [to court] was not supported by any evidence.”

Freedom of speech

The judges also said that “criticism of Israel is not seen by all Jews in this country as an attack on their community, or, at least, not necessarily so.”

It emphasized that “the court should be vigilant to protect the right of freedom of expression.”

The judges also drew a distinction between elected councils passing motions, and executives implementing actual policy. The council executives tended to distance themselves from the motions, saying they had not been implemented in practice.

“No contracts or potential contracts were affected by the resolutions,” the judges concluded.

Jewish Human Rights Watch lawyers attempted to argue that for such motions against Israel to be legal, as a “minimum requirement … someone should raise in debate the impact of the resolution on the Jewish community.”

But the judges disagreed, saying that local elected representatives “do not (and should not) expect that their speeches will be scrutinized later in court … It would significantly inhibit debate if this were a requirement of the law.”

“In our view, the exercise of scrutinizing the debate simply highlighted the unreality of this part of the claimant’s case,” the judges concluded.

Tags

Comments

picture

If laws punishing BDS are illegal in the UK, imagine how much more illegal they are in the U.S. The UK does not have a first Amendment. I do not know if they have a long history of boycotting, as we do in the U.S., but I doubt they have anything equivalent to the Supreme Court declaring in NAACP vs Claiborne Hardware Co. that the right to boycott is protected by the First Amendment. I hope someone who is more familiar with UK history and law will correct me if I'm wrong.

picture

Freedom of expression is a common law right in England. Common law is that which has been accepted by the courts throughout history, though never incorporated in a parliamentary act. We do not have a written constitution, so we do not need an amendment to establish basic rights. From paragraph 11 of the judgment above:

"Freedom of speech includes not only the inoffensive but the irritating, the contentious, the eccentric, the heretical, the unwelcome and the provocative, provided it does not tend to provoke violence."

picture

The difference is that rights established at common law protect individuals from executive actions that violate those rights, but not from acts of law duly passed by the legislature, as is the case under the US Constitution/Bill of Rights. The reason the UK court was able to rule the 'boycott ban' violates freedom of expression as protected at common law and can be overruled is because the 'ban' is contained in guidance issued by the executive. If Parliament were to pass a law containing such a ban this would override the previous position at common law - under UK constitutional arrangements Parliament is sovereign. This is the distinction with the US Constitution. The source of ultimate authority under that system is the Constitution, and as such rights contained therein override acts of Congress. The only way to get around the First Amendment protection of free speech would be to pass a constitutional amendment limiting this right - something which is much more difficult than passing a regular law, and for all practical purposes impossible in this situation. The UK system protects rights from acts of the executive but not the legislature, the US system from both.

However, the 1998 Human Rights Act, which incorporates the European Convention on Human Rights into UK law (including freedom of expression at Article 10), goes some way to filling this gap. Parliament is still sovereign, and thus the Human Rights Act cannot override any later act of Parliament, but the HRA does instruct courts to interpret all other acts in line with Convention rights. In the most extreme cases where it is not possible to interpret a law in a manner that complies with the enumerated human rights, the HRA instructs the courts to issue a declaration stating that the law is non-compliant with human rights obligations - though the law will still stand and it will be up to Parliament to rectify this clash.

Post Brexit, however, I would not be surprised to see a move to scrap the HRA...

Asa Winstanley

Asa Winstanley's picture

Asa Winstanley is an investigative journalist and associate editor with The Electronic Intifada. He lives in London. Biography here.