Adam Wagner is a Jewish human rights lawyer. Here is what he had to say about Newmark et al and the FUCU case…….
Sometimes we need an outsider’s perspective to bring into focus uncomfortable truths about ourselves. Just before the Passover festivities, the Employment Tribunal released a 45-page judgment full of Biblical fury which did just that.
The judgment was about a legal claim brought by a maths teacher, Ronnie Fraser, against his teaching union. He claimed that the Union had harassed him in breach of equality laws due to its handling of the Israel-Palestine debate.
The full judgment can be read here (PDF). If you have any interest in Jewish communal politics and in particular how the Israel-Palestine debate is handled, I highly recommend you read it. Perhaps set aside half an hour over a well-earned post-Passover sandwich – it’s worth it, I promise.
I won’t try to summarise Employment Judge Snelson’s findings here, but I would like to draw out a few points. The main one is that the Claimant, represented by solicitor Anthony Julius, lost in a big way. This was a total, unqualified demolition job. As an outcome, it really was ten plagues bad.
The language of the judgment is harsh and at times sarcastic. As a lawyer, you can take it from me that it doesn’t get much worse than this. This was a “sorry saga”, the Tribunal “greatly regret that the case was ever brought”, at its heart the case was “an impermissible attempt to achieve a political end by litigious means”. Perhaps worst of all, the claim showed a “worrying disregard for pluralism, tolerance and freedom of expression.”
Let’s just step back for a moment. Just because a judge rules on something doesn’t mean they are right. Judgments get appealed and overturned. Reading this one, and not having been in court for the weeks of evidence, there are at least two possibilities. First, that the Tribunal has taken an irrational or perverse dislike to the claimant, his lawyers and some of his witnesses – that is a real possibility, given how scathing the judgment is. The second is, however, is that the Tribunal has got it broadly right, having listened to the extensive evidence and nonetheless dismissed the case out of hand.
As I said, I wasn’t there – this is an evidence heavy case so you really have to have sat through it to reach a proper conclusion. But assuming for the purpose of this article that the Tribunal did get it right, there is a lot here to be worried about.
Let’s take just a single paragraph, number 148. Here the Judge is summarising his conclusions on the claimant’s witnesses who included British Jewish luminaries such as the author Howard Jacobson. Some gave “careful, thoughtful, courteous evidence”. Others however, “seemed more disposed to score points or play to the gallery rather than providing straightforward answers to the clear questions put to them.” Again, ouch.
Particular criticism was reserved for Jeremy Newmark, the Chief Executive of the Jewish Leadership Council, a committee of community grandees:
We regret to say that we have rejected as untrue the evidence of Ms Ashworth and Mr Newmark concerning the incident at the 2008 Congress… Evidence given to us about booing, jeering and harassing of Jewish speakers at Congress debates was also false, as truthful witnesses on the Claimant’s side accepted. One painfully ill-judged example of playing to the gallery was Mr Newmark’s preposterous claim, in answer to the suggestion in cross- examination that he had attempted to push his way into the 2008 meeting, that a ‘pushy Jew’ stereotype was being applied to him. The opinions of witnesses were not, of course, our concern and in most instances they were in any event unremarkable and certainly not unreasonable. One exception was a remark of Mr Newmark in the context of the academic boycott controversy in 2007 that the union was “no longer a fit arena for free speech”, a comment which we found not only extraordinarily arrogant but also disturbing.
Wow. Here are some words you never want to hear in litigation: “untrue”, “false”, “preposterous”, “extraordinarily arrogant”, “disturbing”. To recap, this is the Chief Executive of an organisation which is arguably now the main ambassador of the Jewish Community to the wider British community. This may all be unfair and perverse, but if it is not then we should be worried about the implications.
Then came the MPs. Not just any MPs, but Denis MacShane and John Mann, both well known to the Jewish community; Mr MacShane chaired the The All-Party Parliamentary Inquiry into Antisemitism, Mann authored the Football Association Taskforce on Tackling Anti-Semitism and Islamophobia. Again, it’s bad:
We did not derive assistance from the two Members of Parliament who appeared before us. Both gave glib evidence, appearing supremely confident of the rightness of their positions. For Dr MacShane, it seemed that all answers lay in the MacPherson Report (the effect of which he appeared to misunderstand). Mr Mann could manage without even that assistance. He told us that the leaders of the Respondents were at fault for the way in which they conducted debates but did not enlighten us as to what they were doing wrong or what they should be doing differently. He did not claim ever to have witnessed any Congress or other UCU meeting. And when it came to anti- Semitism in the context of debate about the Middle East, he announced, “It’s clear to me where the line is …” but unfortunately eschewed the opportunity to locate it for us. Both parliamentarians clearly enjoyed making speeches. Neither seemed at ease with the idea of being required to answer a question not to his liking.
As I said, wow. These are MPs who have been lionised by the Jewish community, and in particular the Jewish Chronicle (perhaps not incidentally, Anthony Julius chairs the JC board, a point highlighted by the Judge). ”And on the topic of that Parliamentary Committee”
157… The Respondents defended themselves courteously but robustly against treatment by the Parliamentary Committee the fairness of which was, to put it at its very lowest, open to question.
The sarcasm drips off that final sentence, doesn’t it? Ultimately, the Tribunal concluded that contrary to the claimant’s arguments, the Union’s meetings were “well-ordered and balanced” and that almost the entire case was “manifestly unmeritorious”. Most importantly, the Tribunal rejected out of hand the argument that “a belief in the Zionist project or an attachment to Israel or any similar sentiment” can amount to a protected characteristic.
Lessons not learned
Where does this leave us? It is tempting to see this “sorry saga” as no more than an unfortunate and hubristic litigation fail, or an “act of epic folly” as the Jewish Chronicle’s ‘Ask the QC’ QC Jonathan Goldberg commented. But I think there are wider lessons here which we would ignore at our peril.
Anyone who follows Jewish communal politics and reads the JC will recognise many in the cast of characters as well as the arguments. Anti-Zionist or pro-Palestinian campaigners are regularly branded as anti-Semites. Despite the good work of organisations like Yachad, this is still a regular and well-supported narrative at the centre of much of the Jewish communal response to criticism of Israel. But that approach – which really amounts to communal comfort food – has clearly failed. And yet it is still wheeled out: watch, for example, this stirring but flawed recent speech by the Chief Rabbi to AIPAC, an American pro-Israel lobby. They hate us, so they would say that. Etc.
Of course, some criticism of Israel is linked to or motivated by anti-Semitism, but isn’t it time to stop using vast resources to paint legitimate debate as racial hatred? As well as failing miserably as an pro-Israel argument, this approach also risks fatally undermining work against real anti-Semitism. Aren’t we just a little bit ashamed for major communal leaders and organisations to have backed a claim showing a “disregard for pluralism, tolerance and freedom of expression”?
In a prediction of Michael Fish quality, the JC originally said of the case that unless UCU repented its “clear antisemitic behaviour we could be set for this decade’s version of the Irving trial – a specific case which acts to crystallise broader themes and issues”
It certainly did crystallise broader themes and issues. But not the ones the cheerleaders hoped for. As said above, it is possible that this Tribunal reached a perverse decision. No doubt some will say so once the recriminations begin to fly. I imagine some will even accuse the Judge of anti-Semitism. But assuming for a moment that he was right, we should, as a community, be embarrassed by this ruling. It involved not just the looney fringe but central figures in the community, who have been branded exaggerators, manipulators and arrogant liars. More importantly, the ‘anti-Zionism equals racism’ argument is plainly bankrupt and has no purchase in wider society. We should move on to something which might actually work. And that is the lesson of this sorry Passover saga.
Adam (@adamwagner1) is a barrister specialising in human rights & medical law. He is founding editor of UK Human Rights Blog….”