Creating new perspectives since 2009

PSA vs. Nazim Ali—What it means for the pro-Palestine Activists [Silencing criticism of Israel]

Judgment will allow pro-Israel groups to target regulated professionals, labour party members, student unions and others who criticise Israel or Zionism. 

November 9, 2021 at 5:33 pm

Protest in solidarity with Palestine in London, UK on 22 May 2021 [Guy Smallman/Getty Images]

Many of you will have seen the recent news about Nazim Ali’s loss at the High Court. A detailed timeline can be found elsewhere. I want to discuss the three main consequences of this judgment.

First, a quick summary of the case itself. In June 2017, Ali took part in the annual Al-Quds Day parade, during which he made several ill-advised comments about Zionists and Zionism. The Campaign against Antisemitism (CAA) complained to the police and to the General Pharmaceutical Council (GPhC). The police complaint was passed to the CPS, who decided not to press charges; this was appealed and, again, the CPS declined to prosecute Ali. So, the CAA brought a private prosecution against Ali, which the CPS took over and discontinued. This decision was challenged by way of judicial review, which the CAA lost, as the court agreed with the CPS that Ali’s comments were anti-Israel -Zionist in nature and not anti-Semitic.

The GPhC complaints team subsequently decided that Ali’s words were anti-Israel political speech, that they were not anti-Semitic or racist, and dismissed the CAA’s complaint. Ali was notified that the complaint was closed. However, in the summer of 2019, the GPhC reopened the case, justifying its decision on the basis that it had to evaluate Ali’s comments based on the International Holocaust Remembrance Alliance (IHRA) definition of anti-Semitism.

Late last year, those proceedings culminated in the GPhC finding the comments made by Mr Ali to be offensive but not anti-Semitic. They held that, a reasonable bystander who was apprised of all the facts would not consider his speech in their context (a pro-Palestine rally) to be anti-Semitic. They took account of the context, Ali’s explanation of his words and his upstanding character. It issued him with a warning, on the grounds that his words were offensive and his behaviour amounted to misconduct.

READ: UK’s Orthodox Jewish leaders denounce right-wing Israel ambassador’s visit

Pro-Israel campaigners prevailed upon the Professional Standards Authority for Health and Social Care (PSA) to appeal the GPhC decision to the High Court, which has now decided the GPhC reconsider afresh the allegations of anti-Semitism against Mr Ali, on the grounds that the body had erred by taking into account Ali’s explanation for, and intention behind, the words. The High Court held that Ali’s intention and explanation could not form part of the analysis of whether his words were anti-Semitic. Instead, an “objective” test should be used—something the learned judge does not define; he only elaborates on what it cannot include, i.e., the intention of the speaker.

So why is this dangerous?

  • Once you remove intention, all criticism of Israel and Zionism is potentially anti-Semitic: Intention behind words is important. They tell us what the speaker intended, or meant, to say. In the context of controversial subjects, such as Israel/Palestine, they become crucial to understanding what the speaker means. The CAA/UKLFI and others want the courts and tribunals to adopt the IHRA definition of anti-Semitism as the “objective” definition. This is a controversial definition, one which puts substantial emphasis on criticism of Israel. Once an “objective” definition is accepted, where intention is not relevant, pro-Palestine activists will find there is little they can say about Israel without being labelled anti-Semitic.
  • The “objective” definition will be wielded as a weapon to harass and silence professionals who criticise Israel. Pro-Israel groups will target any and every one they can identify as a regulated professional who has the temerity to criticise Israel in public. As the definition is “objective”, pro-Israel groups will simply start framing their complaints as the “person’s words are objectively anti-Semitic” in each case, thereby, avoiding the need to discuss the speaker’s intention. The regulators themselves seem uninterested in the politicised nature of the complaints and will bring to bear their full regulatory weight on the individual— involving a complaints process, a tribunal, lawyers’ fees, appeals and counter appeals. The thought of such an overwhelming process will be enough to stop any regulated professional from publicly criticising Israel or Zionism.
  1. Regulated professionals are just the start— this will set a chilling benchmark that can be replicated in many other regulatory and disciplinary settings. Labour party members accused of anti-Semitism, university disciplinary proceedings, employment tribunals and others will find this case being cited as a precedent. Suddenly, union members are accused of “objective” anti-Semitism as they believe Israel is an apartheid state. Their intent is irrelevant, as the complaint will be framed as the meaning of their words is anti-Semitic— and it is according to the “objective” IHRA definition: “Denying the Jewish people their right to self-determination, e.g., by claiming that the existence of a State of Israel is a racist endeavour.” Teachers, students, employees of any major company, anyone who criticises Israel in public, will find complaints being made against them by pro-Israel groups. These groups know most people do not want their livelihood taken from them; they calculate most people will just remain silent about Israel’s crimes rather than face being disciplined and being removed from employment.

Ali’s words were inappropriate and, on occasion, factually inaccurate (Israel and Zionism are guilty of a lot, but they did not set fire to Grenfell), but they were not anti-Semitic. Our purpose in fighting this judgment is not to defend Ali’s words. Rather, it is to stop the creation of a precedent that will silence virtually all criticism of Israel. Pro-Israel groups wish to proscribe all criticism of Israel; this judgment gives them the tools with which to achieve their goals. Free speech on Israel will be eroded if we do not fight back now.

The views expressed in this article belong to the author and do not necessarily reflect the editorial policy of Middle East Monitor.