In a hugely significant development for free speech on Palestine, eminent human rights lawyer Hugh Tomlinson QC has issued a legal opinion that finds major faults with the government’s new antisemitism definition’s guidance.
The opinion criticises the guidance that accompanies the definition which conflates criticism of Israel with antisemitism. The guidance cannot be used lawfully to ban events critical of Israel. This includes events describing Israel as a state enacting policies of apartheid or practising settler-colonialism. In a key finding Tomlinson states: “the starting point should be that events which seek to protest against the actions of the state of Israel or the treatment of Palestinians are lawful expressions of political opinion. There is no justification in law for treating such events any differently from any other political protests.”
In December 2016, the Government adopted the IHRA definition of antisemitism and the accompanying guidance. The substance of the definition was criticised by Hugh Tomlinson for a lack of clarity. However, the fundamental problem emerges in the guidance that incorporates criticism of Israel as a form of antisemitism. In doing so it risks rendering illegitimate, and potentially criminal, calls for action to address Israel’s persistent denial of Palestinian rights. We believe this runs counter to everyone’s freedom of expression – a right guaranteed in European law.
In response, Jews for Justice for Palestinians, Free Speech on Israel, Independent Jewish Voices and the PSC obtained a legal opinion from Hugh Tomlinson QC. He examined the concerns of the coalition that the ‘IHRA definition’ conflates antisemitism with criticism of Israel and could be misused to curtail campaigning on behalf of Palestinians. The groups cite recent occasions when university authorities have forced student Palestine societies to cancel or postpone planned meetings and actions.
A brief summary of his findings are below –
- The definition cannot be used to judge criticism of Israel as antisemitic, unless it expresses hatred towards Jews.
- Describing Israel as a state enacting a policy of apartheid, as practising settler colonialism or calling for policies of boycott divestment or sanctions against Israel cannot properly be characterized as antisemitic.
- The definition’s poor drafting means public bodies applying the definition could be at serious risk of “unlawfully restricting legitimate expressions of political opinion”.
“Properly understood in its own terms the IHRA Definition does not mean that activities such as describing Israel as a state enacting a policy of apartheid, as practising settler colonialism or calling for policies of boycott divestment or sanctions against Israel can properly be characterized as antisemitic. A public authority which sought to apply the IHRA Definition to prohibit or sanction such activities would be acting unlawfully.”
The Opinion was launched in the House of Lords on Monday March 27. Speakers included leading solicitor Sir Geoffrey Bindman of Bindman’s LLP, expert on freedom of expression and retired Lord Justice of Appeal, Sir Stephen Sedley.
The full text of the opinion is available here. The PSC and its partners expect that public bodies, including universities, must now take into account the findings of the legal opinion before making any decisions regarding the adoption and interpretation of the IHRA definition.
The message is loud and clear. Freedom of speech and human rights are values we all cherish. The law is on our side, and nothing can stop us from raising our voices to highlight the systematic denial of Palestinian human rights by the Israeli state.
Thank you to our coalition partners, friends, and supporters. Together, we are making sure that Palestinian voices cannot be silenced.