Anti-BDS bill shielding Israel will have ‘profound detrimental’ impact on UK, says top lawyer

A top lawyer commissioned by the UK Labour Party to provide legal advice on the government’s new anti-boycott bill has warned that it will have a “detrimental impact” on Britain. The legal advice was given to the Labour Party ahead of yesterday’s second reading of the Economic Activity of Public Bodies (Overseas Matters) Bill. However, despite the stark warning about the repercussions, Labour is expected to ignore its own legal advice by not voting against the bill. Instead under the leadership of Keir Starmer, the party will abstain from the vote.

Introduced by Tory Minister Michael Gove, the bill grants Israel special protection against public bodies who seek to take a moral and ethical stance against the racist and discriminatory practices of the apartheid state. The driving force behind the bill is to address the Boycott, Divestment and Sanctions (BDS) campaign and includes a special anti-democratic clause that blocks UK public bodies from ever sanctioning Israel.

As many as 50 Tory rebels are threatening to join Labour and abstain. But the question on many people’s lips is why a party that claims to stand for human rights and international law is minimising the warning of the barrister commissioned by Labour’s shadow communities secretary Lisa Nandy for legal advice by refusing to vote against such a draconian anti-democratic bill. Nandy herself appeared to downplay the damning conclusions in a tweet announcing that Barrister Richard Hermer KC was commissioned to offer legal advice on the anti-BDS bill.

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“This very poorly drafted Bill is likely to have a detrimental impact on the United Kingdom’s ability to protect and promote human rights overseas,” said Hermer in his legal advice. He explained that in certain respects the bill is “inconsistent” with Britain’s obligations under international law and it will “stifle free speech at home” in a manner that is incompatible with Article 10 of the European Convention on Human Rights (ECHR). Article 10 calls for the protection of freedom of expression and qualifies that “This right shall include freedom to hold opinions and to receive and impart information and ideas without interference by public authority and regardless of frontiers.”

The most devastating critique in Hermer’s legal advice is contained in his explanation of the bill’s hinderance to the anti-apartheid campaign against white South African rule. “During the apartheid regime local authorities in the UK played a prominent and powerful role in the South Africa boycott campaign,” said Hermer. “Had this Bill been in force during the 1980s this would have been very likely deemed unlawful and no exemption granted in light of the position of the then Prime Minister that Nelson Mandela was a terrorist and the apartheid regime was an ally.” Like the Palestinians, Mandela was denounced as a terrorist for resisting a racist apartheid regime.

Hermer acknowledges that many in the UK would be proud of the role played by UK local authorities in opposing the South African apartheid regime. “These acts,” says Hermer, “have been propelled not simply by morality but by the perception that boycotts and other economic measures can have a positive impact on the promotion of human rights globally.”

However, “Had legislation of this nature been in effect in the 1980s it would have rendered it unlawful to refuse to source goods from apartheid South Africa”.

On the specific issue of Palestine, Hermer argues that the bill goes against Britain’s stated policy. The bill “effectively equates the OPT (occupied Palestinian territories) with Israel itself and is very difficult to reconcile with the long-standing position of the United Kingdom which supports a ‘two-state solution’ based on ‘1967 lines’ in which the security and right to self-determination of both Israelis and Palestinians are protected.”

Hermer also suggests: “In my view, legislation prohibiting local authorities from taking steps to promote Palestinian self-determination within the OPT, taken with the terms of the exclusion in Clause 3(7), would likely place the United Kingdom in breach of international law obligations.” Clause 3 of the bill states that the Secretary of State can “specify a country or territory” for which the bill “does not apply”, meaning that the bill allows for exceptions specified by the government.

However, the exception clause does not extend to Israel which is granted complete immunity. The text explicitly states that such exemption “may not specify” decisions or considerations “relating specifically or mainly to Israel, the Occupied Palestinian Territories, or the Occupied Golan Heights”. These territories are occupied under international law and the UK itself has stated that the bill does not change Britain’s position on settlements, “which are illegal under international law”.

Questioning the governments reasoning on the Israel exception clause, Hermer says: “It would seem odd in the extreme that the Secretary of State is vested with powers to make exemptions for any country in the world except Israel, irrespective of what the ‘facts on the ground’ at any given time might be.” Israel is granted protection that is not extended to any of the other 195 countries, meaning that the exception clause in the bill is likely to be weaponised by the Secretary of State as a political tool against enemies of the British state.

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“Not only are the terms of this exemption hard to reconcile our long-standing policy on the status of the OPT, they are also very difficult to reconcile with our obligations underinternational law,” says Hermer. He notes that the nature of these obligations was considered by the International Court of Justice (ICJ) in its 2004 Advisory Opinion “Legal Consequences of the Construction of a Wall in the Occupied Palestinian Territory”. Although addressing the particular subject matter of the construction of the Separation Wall, the analysis of the Court reflects the wider international law obligation on all states to ensure that impediments to Palestinian self-determination are brought to an end.

Hermer states that “legislation prohibiting local authorities from taking steps to promote Palestinian self-determination within the OPT,…. would likely place the United Kingdom in breach of international law obligations.” He concludes by stressing: “What can be said with a high degree of certainty is that many of the key provisions of this very poorly drafted Bill are deeply troubling from both a domestic and international law perspective. The implications for local democracy, for the proud history in our regions of campaigning for global human rights, for using our economic clout for the promotion of human rights, for free speech in this country and for compliance with our international law obligations are potentially profound.”

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