Magennis: Submissions went further than needed
A barrister acted within professional boundaries in arguing that comparing Israel with Nazi Germany was not inherently antisemitic, the High Court has ruled – although tweets from his client doing so were found to be antisemitic.
However, Mr Justice Chamberlain said the submissions by Franck Magennis about Israel’s conduct, “though not professionally improper, at times went further than required to make his point”.
He made the comments at the start of his decision, which we reported yesterday, to uphold the strike-off of solicitor Farrukh Najeeb Husain over tweets on Israel and Palestine, saying they showed “unvarnished antisemitic racism”. These included tweets comparing Israel with Nazi Germany.
Mr Magennis is on the frontline of pro-Palestinian action and is one of the lawyers acting for terror group Hamas in trying to have it removed from the list of proscribed organisations under the Terrorism Act 2000.
The judge said there were “very few contexts in which it would be appropriate for a domestic court to opine” on any of the various anti-Israel submissions the Garden Court Chambers barrister made.
“The present appeal is certainly not one. What matters here is whether the things Mr Husain said fell within the bounds of permissible political speech, not whether the criticisms levelled against Israel by Mr Magennis and Mr Husain are justified.
“The issues involved in this case understandably evoke strong reactions on both sides. They are likely to arise in other cases.
“Where they do, legal representatives would be well-advised to focus rigorously on the issues the court has to determine, confine their submissions to those issues and aim to lower, rather than raise, the temperature of debate in written and oral arguments.”
Chamberlain J recorded that, in his revised skeleton argument, Mr Magennis submitted that it was legitimate to call Israel and Zionism fascist and compare them to other historical examples of fascism.
The ordinary reasonable observer “would not view the comparison of Israel to Nazi Germany as inherently antisemitic”, he claimed.
In his skeleton, Adam Solomon KC, representing the Solicitors Regulation Authority, noted that making comparisons between Israel and Nazi Germany was an example of antisemitism given by the International Holocaust Remembrance Alliance (IHRA), yet Mr Magennis’s skeleton argument “seeks to defend this position”.
Mr Solomon said it “crosses the line from engaging with the legal question of the correct comparator, to making assertions which are simply antisemitic. This should not be tolerated by the court”.
He did not accede to Mr Magennis’s request to withdraw the allegation of antisemitism but the judge said he did not consider any of Mr Magennis’s submissions to have been professionally improper.
“Given the nature of the allegations against Mr Husain, it was inevitable that both the tribunal and… I would have to say something about the meaning of antisemitism and about the boundary between legitimate and illegitimate criticisms of Israel…
“As a barrister representing Mr Husain in his appeal, Mr Magennis was obliged by the code of conduct (rC15.1) to ‘promote fearlessly and by all proper and lawful means [his] client’s best interests’. It was for him to judge what submissions to make, provided that those submissions were properly arguable.”
Chamberlain J said he was sure Mr Solomon’s complaint was not motivated, as Mr Magennis had suggested, by a desire to stifle Mr Husain’s freedom to advance his case.
“If I had accepted it, however, it would certainly have constrained that freedom. As a matter of principle, I consider that a court should be slow to shut out a submission by counsel on the ground that it is antisemitic where it is made in support of an argument about what constitutes antisemitism in a case where that is a central issue.
“The submission that it was not inherently antisemitic to compare Israel with Nazi Germany was properly arguable and, in my judgment, Mr Magennis did not act improperly by making it.”
In his ruling, Chamberlain J acknowledged that “reasoned comparisons between particular policies of the Israeli government and particular policies pursued by Nazi Germany are occasionally made by historians and journalists in the mainstream media in the UK, the US and Israel”.
He continued: “However, to the extent that it was formulated as a criticism of the IHRA’s example, Mr Magennis’s submission was directed at a straw man. The IHRA does not claim that every comparison between Israel and Nazi Germany is ipso facto antisemitic.
“Its claim is the more modest one that such comparisons could, depending on the context, be antisemitic.
“Comparisons between the policy of Nazi Germany and that of any other government are apt to be incendiary. Making such a comparison with Israel is likely to be especially hurtful. That is not enough on its own to take speech outside the protection of article 10.
“However, the language or imagery of Nazism is often used as a taunt, which deliberately references and weaponises the most painful events in Jewish history, to which some Jews alive today are witnesses and which continue profoundly to affect many others.
“Depending on the context, a criticism of Israel which pointedly uses Nazi language and imagery as a racialised taunt of this kind could reasonably be regarded as antisemitic.”
Mr Magennis was instructed by Five Pillars Law, a central London law firm regulated by the Bar Standards Board that also has a base in Qatar.
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