Written evidence from the Campaign Against Antisemitism (FOE0236)

The International Definition of Antisemitism and Freedom of Expression

I write as the Chief Executive of Campaign Against Antisemitism (CAA), a charity dedicated to exposing and countering antisemitism through education and zero-tolerance enforcement of the law.

The Parliamentary Joint Committee on Human Rights recently called for evidence in your inquiry on “Freedom of Expression.” We understand that arguments against the widespread adoption of the International Definition of Antisemitism (also known as the IHRA Definition) have been submitted to the Committee, and therefore would like to make a submission of our own with regard to the relationship between the Definition and the right to free expression.

By way of background, CAA helped to lead the campaign for the British Government to adopt the International Definition of Antisemitism, along with the Rt Hon. Lord Pickles, one of our honorary patrons. Since then, we have consistently urged local authorities, universities and other public bodies to follow suit. We were also the complainant in the Equality and Human Rights Commission’s (EHRC) investigation into antisemitism in the Labour Party.

We want to draw the Committee’s attention to the supposed argument against the adoption of the Definition on the basis that it would stifle free expression, particularly at universities. This does not stand up to scrutiny.

The claim that adoption of the Definition conflicts with the duty on universities to protect free speech is a familiar and flawed argument, notwithstanding its persistence. We assume that those advancing it are not suggesting that faculty or students should be free to call for or justify the killing or harming of Jews; or demonise Jews; or deny the Holocaust or accuse Jews of exaggerating it; or accuse Jews of disloyalty or dual loyalty, which are all explicit examples in the Definition.

If concern arises from the examples related to discourse about Israel, are they suggesting that free speech is inhibited by alerting universities to the fact that denying Jews their right to self-determination or applying double standards to the Jewish state not demanded of any other democratic nation is antisemitic; as is using blood libels to characterise Israelis; holding Jews responsible for the actions of Israel; and comparing those actions to those of the Nazis? Surely they recognise that within these bounds it is perfectly possible to have as wide a discussion about Israel as one would about any other country. Moreover, the Definition explicitly states that “criticism of Israel similar to that levelled against any other country cannot be regarded as antisemitic”, to emphasise this point and address the concern that some nonetheless raise. What is a matter of some concern to us is that no matter how frequently this is pointed out, the important qualification (and the express emphasis on sensitivity to context in the Definition) are just as frequently ignored. Here, too, it is worth reflecting on the fact that the egregious instances of antisemitism the EHRC identified in its Report on Antisemitism in the Labour Party were mostly forms of antisemitism related to Israel.

There is no legitimate debate about Israel that involves denying its right to exist, characterising the very existence of a State of Israel as racist, or comparing its conduct to that of the Nazis. Those who rely on such assertions are not concerned with open discussion. Indeed, as Lord Wolfson of Tredegar QC observed in the House of Lords in a recent debate on antisemitism on university campuses: “Racism is the antithesis of debate. An antisemite does not want to hear what you say.”[1] The free speech argument against the Definition is a canard promoted only by those who want the freedom to be racist. It is not the sort of argument one would expect to hear from the Chair of the EHRC, even when speaking in a personal capacity.

Indeed, your Committee members will of course appreciate the difference between speech that is ‘merely’ insulting or offensive, and speech that is antisemitic. The former is protected under the right to freedom of expression in Article 10 of the European Charter of Human Rights, which is part of our law via the Human Rights Act 1998. The latter, antisemitic speech, is either a) not protected under the guarantee of freedom of expression at all because it conflicts with other fundamental values, amounts to a form of hate speech, and so falls outside the scope of Article 10 or, b) if the speech is not entirely beyond the pale and therefore benefits from some protection under the Article 10 guarantee, it may nevertheless still be the subject to perfectly legal regulation. It is regulated, for example, under the Equality Act 2010. What is required, as your Committee is doubtless aware, is that the speech in question is subject to a balancing exercise involving proportionality. Both the Definition, which is highly context-sensitive, and the balancing exercise that is envisaged where speech enjoys some protection under the Equality Act, require attention to the particular circumstances and the exercise of sound judgment. There is no inconsistency between the two, something the EHRC correctly acknowledged in its Report on Antisemitism in the Labour Party.

As a matter of interest, the Committee may be aware that the two primary instances of antisemitic speech which the EHRC found in its Report amounted to harassment against Jewish Party members under section 26 of the Equality Act 2010 were considered by the EHRC to be so egregious that the EHRC found that the speech in question enjoyed no protection under Article 10 whatsoever. 

The Committee will also be aware that the Equality Act itself contains no definition of antisemitism. Nevertheless, identifying what is antisemitic, as opposed to merely insulting conduct, is essential in order to establish the close connection required under section 26 of the Equality Act between “unwanted conduct” and “harassment” related to the protected categories of religion and race (Jewish ethnicity). It goes without saying that universities are subject to the Equality Act and it is not generally thought that this conflicts with their duty to promote freedom of speech. The Definition is consistent with the approach under the Equality Act. In important ways, it provides the tool to identify antisemitism where the Equality Act lacks any definition at all. It is very useful in assisting in understanding what antisemitism is and when the speech in question moves beyond “insult” into something more troubling.

In short, it is simply wrong to say that the Definition conflicts with the duty of universities to protect free speech, and it is obviously wrong to say, as some do, that it conflicts “directly”.

Furthermore, although some claim that the Definition is not an appropriate tool to address antisemitism on campus, they fail to specify what they think ought to be done in lieu of adoption. As research has shown over many years, antisemitism is resurgent in our country, and Jewish students are often on the front line of this hatred, which is espoused not only by a minority of their fellow students but even by some of their teachers and faculty. It is not sufficient to plead for ‘respectful debate’ – we no longer have the luxury of prevarication at a time when anti-Jewish racism is so prominent as to have recently reached the highest levels of our civic life. We must learn from recent events and introduce measures to prevent their repetition. The adoption of the Definition is unquestionably one of those measures, and this campaign has the backing of the entire mainstream Jewish community.

I end by quoting an extract from the legal opinion authored for CAA by Lord Wolfson, which he referenced in his speech in the recent debate in the House of Lords, and Jeremy Brier, and which I urge the Committee to consult. It can be found in full on our website at antisemitism.org/definition:

“The Definition is a clear, meaningful and workable definition. The Definition is an important development in terms of identifying and preventing antisemitism, in particular in its modern and non-traditional forms, which often reach beyond simple expressions of hatred for Jews and instead refer to Jewish people and Jewish associations in highly derogatory, veiled terms (e.g. ‘Zio’ or ‘Rothschilds’). Public bodies in the United Kingdom are not ‘at risk’ in using this Definition. Indeed, this Definition should be used by public bodies on the basis that it will ensure that the identification of antisemitism is clear, fair and accurate. Criticism of Israel, even in robust terms, cannot be regarded as antisemitic per se and such criticism is not captured by the Definition. However, criticisms of Israel in terms which are channels of expression for hatred towards Jewish people (such as by particular invocations of the Holocaust or Nazism) will in all likelihood be antisemitic.”

We hope that this letter will provide a useful tool to the Committee in the fight against antisemitism, and we would be happy to meet with the Committee to discuss these matters further.

02/02/2021