UK Advocates Urge Anti-BDS Legislation After High Court Decision

The British government cannot restrict local governments from engaging in boycotts against Israel, a UK High Court Judge ruled last week, prompting British pro-Israel advocates to call for primary anti-BDS legislation.

The judgment, issued by Sir Ross Cranston, a judge of the High Court, Queens Bench Division, followed a case that challenged policy guidance issued by the UK Department for Communities and Local Government last year. The guidance sought to prevent local governments, like city and town councils, from engaging in policies that support “boycotts, divestment and sanctions [‘BDS’] against foreign nations and UK defense industries” with regards to pension funds. The guidance did not mention Israel specifically. Other European nations, including France, have enacted similar policies.

The case was brought by the Palestine Solidarity Campaign (PSC), a UK group that equates Zionism, the belief in a national homeland for the Jewish people, with “racism, occupation and colonization” and has called for the end of Israel as a Jewish state. The PSC claimed that the Department’s provision restricted their freedom to protest against companies “complicit” in Israel’s occupation of the Palestinian territories. The PSC, an active member of the international Boycott, Divestment and Sanctions (BDS) movement against Israel, was supported in their case by other pro-BDS groups, including the Quakers and the Campaign Against Arms Trade.

In response, the Government argued that allowing local governments to take political stances on the Israeli- Palestinian conflict might “undermine community cohesion at home by legitimizing anti-Semitic or racist attitudes and attacks” in addition to sending mixed messages about British national policy. In it’s argument, the Government noted that, although the such pro-BDS legislation could provoke anti-Semitism in local communities, the anti-Israel and pro-Palestinian movements are not inherently anti-Semitic.

In his decision, Sir Ross Cranston noted that the political merits of the arguments of the PSC or the government have nothing to do with his judgment and that the decision came from “legal analysis, not political argument.” The Judge explained that Sajid Javid, the Secretary of State for the Department for Communities and Local Government, acted beyond his authority in issuing the guidance. The Judge noted that since the guidance was issued to protect “UK foreign policy or UK defense policy”, Secretary Javid was acting beyond the scope of his authority because the provision was issued for purposes that extended beyond pension and investment regulation.

Despite Cranston’s statement that the political merits of the PSC’s argument had no bearing on the decision, British anti-Israel activists rejoiced at the judgment, with the PSC calling the case “a victory for Palestine, local democracy and for the rule of law.” On the other hand, British pro-Israel leaders are calling for primary legislation to combat BDS in local government. Although prospective, parliamentary legislation would likely ban local councils and other forms of municipal governments from engaging in boycotts based on national origin. Such legislation would promote a broad array of British interests, including community cohesion, reduction of anti-Semitic incidents and the maintenance of a clear and coherent British foreign policy towards Israel and the Middle East. Last year, the British government adopted the International Holocaust Remembrance Alliance’s expansive definition of antisemitism that explicitly states that criticisms of Israel that portray the Jewish state as a “Jewish collectivity” are anti-Semitic.

The Department’s now-defunct guidance had stirred controversy among anti-Israel activists and local government officials across the UK since it was first introduced in 2015. Local government officials had called the guidance “political interference on a huge scale.” Jeremy Corbyn, UK Labour Party Leader and former candidate for Prime Minister, called the guidance “unethical and an attack on local democracy.”  Supporters of the guidance welcomed the provision, calling the behavior the guidance sought to prevent “bad for the local taxpayer and deeply damaging to community relations”, in addition to encouraging anti-Semitism. Over recent years, Corbyn and the UK Labour party supporters have been repeatedly accused of anti-Semitism, particularly after a high-profile Corbyn supporter questioned the need for increased security at Jewish schools and made disparaging comments about Holocaust Memorial Day.

Furthermore, the BDS movement has gained significant popularity among the British public. The PSC reported that its own polling indicates that 43% of the British public think the BDS movement is a “reasonable” solution to the Israeli Palestinian conflict. This surge in BDS support has reached UK college and university campuses, with the University of Manchester Student Union Senate, the largest student union in the UK, officially endorsing BDS in 2016.

This is coupled with an alarming rise in anti-Semitic incidents in the UK. In February, the Community Security Trust, a British organization that monitors anti-Semitism, reported that anti-Semitic hate incidents had increased by over 36% in 2016, including over 100 incidents of physical attacks. This rise in anti-Semitism has been particularly felt on UK campuses, with over 25% of Jewish students in the UK reported in April that they are worried that they will be the target of anti-Semitic abuse by their peers.

American pro-Israel activists say that last week’s UK judgment is unlikely to have any effect on American anti-BDS legislation. Nearly half of all U.S. states have passed anti-BDS legislation that prohibits state governments from doing business with companies and organizations supporting or engaging in the BDS movement. The U.S. Congress is also currently considering federal anti-BDS legislation.