Legal opinions on IHRA definition of antisemitism sent to NHS trusts
An opinion drafted on behalf of Health Workers for Palestine has been followed by another, commissioned by the Jewish Medical Association
Lawyers have reportedly written to NHS trusts across the country in an apparent effort to warn them off adopting the IHRA definition of antisemitism, suggesting that they may “wish to think carefully as to whether it is appropriate (or helpful).”
The “written advice”, drafted by barristers on the instruction of their client, the Health Workers for Palestine group, says that it “sets out the legal issues that NHS organisations are likely to face if they choose to adopt and apply the IHRA definition, including the risks of (i) interfering with free speech rights, and/or (ii) discriminating on grounds of race, religion or belief.” It goes on to claim that “there is a very real risk that, absent careful consideration, NHS organisations who choose to adopt and apply the IHRA definition will do so in a manner that is unlawful.”
The advice itself warns NHS trusts that “it will not be lawful for an NHS organisation to apply the IHRA definition in a way that relies on racist stereotypes against Palestinian people” or “in a way that relies on racist or Islamophobic stereotypes against Muslims”. It says that “If an NHS organisation applies the IHRA definition in a way which relies upon such stereotypes (whether expressly or otherwise), it is likely to act in a manner that violates fundamental rights to freedom of expression and/or belief.”
The legal advice in question was disseminated after the CEO of NHS England wrote to leaders of NHS trusts in June, asking for an update by the end of July regarding progress in implementing, among other things, the IHRA definition.
The NHS trusts are told that “if, despite the risks we identify, NHS organisations are inclined to adopt the IHRA working definition, then we consider that it will be necessary for them to provide written guidance as to its application”, given what they describe as “the opacity of the working definition”.
However, in response, the Jewish Medical Association has also published a legal opinion on IHRA, “commissioned from two leading equalities and human rights barristers, Rebecca Tuck K.C. and Adam Wagner K.C.” This opinion concludes that “there is no legal impediment to NHS organisations adopting the IHRA definition. On the contrary, the IHRA definition is a tool which can help NHS organisations fulfil their legal duties, for example under the Equality Act 2010.
The opinion on IHRA sent by JMA also states that the definition is “a useful tool which, if adopted, will help NHS organisations to address the serious and worsening problem of antisemitism in the healthcare system”, and that “the text of the IHRA definition makes clear that its 11 examples ‘may serve as illustrations’ and ‘could’ be antisemitism but only when ‘taking into account the overall context’. These are adequate safeguards for freedom of speech which would prevent an NHS organisation from breaching legal duties simply because it adopted the IHRA definition.”
In June, the British Medical Association took a vote at its annual conference to effectively reject the IHRA definition. It understood that the leadership of the BMA wrote to the Chief Executive of NHS England on 24 July, reiterating that opposition and citing the Health Workers for Palestine legal opinion.
The JMA’s legal opinion stresses that “The examples in the IHRA definition relating to Israel are important because they recognise that modern antisemitism often manifests as extreme anti-Israel and antizionist rhetoric.” It also maintains that “there is no legal requirement to edit the IHRA definition or to accompany it with additional guidance. To do so would also risk over-complicating and rendering it less useful.”