Sir Stephen Sedley (born 1939), is a British lawyer. He worked as a judge of the Court of Appeal of England and Wales 1999-2011 and is currently a visiting professor at the University of Oxford. He became a QC in 1983, was appointed a High Court judge in 1992,and in 1999 was appointed to the Court of Appeal as a Lord Justice of Appeal. He was a Judge ad hoc of the European Court of Human Rights and a Member ad hoc of the Judicial Committee of the Privy Council.
His father was Bill Sedley (1910–1985), of a Jewish immigrant family, who operated a legal advice service in the East End of London in the 1930s. Bill Sedley founded the firm of lawyers of Seifert and Sedley in the 1940s with Sigmund Seifert and was a lifelong Communist.
Speech given by distinguished retired Appeal Court Judge Sir Stephen Sedley on 27 March at a meeting in the House of Lords
Free Speech on Israel
March 27, 2017
March 27, 2017
The purpose of this meeting is to draw attention to a growing concern about the misuse for political purposes of the concept of anti-semitism. The misuse in question is the conflation of criticism of Israel with hostility to Jews. Its political purpose is to prohibit or inhibit discourse or action inimical to the state of Israel.
There are two distinct backstories to the catch-all meaning of antisemitism with which this meeting is immediately concerned.
One is the longstanding, and largely successful, endeavour to segregate antisemitism from racism. It has for a good many years been part of Zionist discourse to contend that racism is one thing – based on concepts of genetic inferiority – and antisemitism another, based on historical and theological as well as genetic factors. This is not the place to pursue the argument, save perhaps to note that anti-semites do not as a rule worry about whether their targets are observant, orthodox or secular Jews: their spleen is directed at members of a race.
The other backstory is the Zionist claim to represent all the world’s Jews – a claim welcomed by Islamic extremists. Nothing suits Islamic fundamentalism better than the idea that all Jews are equally implicated in the excesses of Zionism. The claim depoliticises Zionism and legitimises jihadist anti-semitism.1
Against this already dangerous backdrop, we are now looking at the no doubt well-intentioned but naïve adoption by our executive government of a protean definition of antisemitism which is open to manipulation and capture by the background interests I have mentioned. In this regard I would go rather further than Hugh Tomlinson does in his careful and well-reasoned Opinion. The governing proposition that antisemitism is “a certain perception of Jews, which may be expressed as hatred towards Jews” carries the clear implication that it may equally be expressed in other, unspecified, ways.
As Hugh Tomlinson says, this passage is vague and confusing; but I am not sure that the critique should stop there. It seems to me that its open-ended formulation has a thought-out purpose: to bring within the pale of antisemitism perceptions of Jews – possibly but not necessarily of all Jews – which fall short of hatred. While this may legitimately cover familiar antisemitic slanders about greed, clannishness and so forth, it is also capable of embracing perceptions of Zionism which are the subject of legitimate debate and disagreement.
Is there a single entity capable of being characterised as “the Jewish people”? Am I obliged to regard myself as bound by ethnicity to people like Benjamin Netanyahu?
That this is part of the intended reach is now becoming evident. One of the adopted examples is “Denying the Jewish people their right to self-determination, e.g. by claiming that the existence of the State of Israel is a racist endeavour.” This passage bristles with controversial assumptions. Is there a single entity capable of being characterised as “the Jewish people”? Am I obliged to regard myself as bound by ethnicity to people like Benjamin Netanyahu? Then, assuming that there is such an ethnic entity, from where does it derive a collective right to self-determination capable of defeating the right to self-determination of other peoples, above all the Palestinian people? There have been many Jews – my father was one – who long before 1947 opposed the Zionist project on the ground that Jewish exceptionalism was exactly what antisemitism needed.
Lastly, accepting as one must that the state of Israel, whatever has been argued in the past about its right to exist, is a geopolitical ‘fact on the ground’, why are people, including many Jews, not entitled, without being branded antisemitic, to regard it in its present form as both a colonialist and an apartheid state? The demand that criticism, to be legitimate, must be ‘similar to that levelled against any other country’ assumes that there are other countries which behave like Israel. There may well be, but how can this properly be a precondition of any criticism?
I will not travel over the consequential legal ground that Hugh Tomlinson so ably traverses. It is sufficient to emphasise these points:
The adoption by government of the IHRA’s “working definition” does not clothe it with any legal force. At the same time, it is not neutral: it may well influence policy both domestically and internationally.
No policy, however, can be adopted or used in defiance of the law. The Convention right of free expression, now part of our domestic law by virtue of the Human Rights Act, places both negative and positive obligations on the state which may be put at risk if the IHRA definition is unthinkingly followed. And s. 43 of the 1986 Education Act, while passed to deal with very different kinds of controversy, vouchsafes an individual right of free expression in all higher education institutions which cannot be cut back by governmental policies.
What is needed now is a principled retreat on the part of government from a stance which it has naively adopted in disregard of the sane advice given to it by the Home Affairs Select Committee.
1 For my part I am critical of the ECtHR’s judgment in CICAD v Switzerland, because it failed to recognise that the offending article, with its assertion that “when Israel is exposed … it is Judaism that is exposed at the same time” was a classic attempt to taint all Jews with Israel’s violations of human rights. Its author in my view had been rightly accused of antisemitism.
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