Activist doctors have enlisted lawyers to warn NHS trusts against adopting the International Holocaust Remembrance Alliance (IHRA) definition of antisemitism, claiming that the measure meant to protect Jewish staff and patients would discriminate against critics of Israel.
Arguing that calls for the “dissolution” of Israel should not be treated as antisemitic, lawyers warned hospitals that adopting IHRA could leave hospitals vulnerable to breaking other rights laws.
The intervention comes after the government's independent adviser on antisemitism, Lord Mann, recommended all NHS trusts adopt the IHRA working definition in his review of antisemitism in the health service.
A widely adopted international definition of antisemitism, the IHRA framework includes examples of contemporary antisemitism including comparing Israeli policy with that of the Nazis or holding Jews collectively responsible for the actions of the State of Israel.
The government adopted IHRA in 2016, while NHS England endorsed it last year after ministers ordered action following a surge in antisemitism.
The JC revealed last month that the British Medical Association (BMA) voted to drop IHRA across the NHS.
Now lawyers acting for activist group Health Workers 4 Palestine (HW4P), which is frequently seen at anti-Israel rallies, have written to NHS organisations warning that adopting IHRA without additional guidance could breach the Equality Act 2010 and Human Rights Act 1998 by interfering with freedom of expression and discriminating against pro-Palestine staff.
The legal advice, prepared by barristers at Matrix Chambers and Blackstone Chambers, states that “the IHRA working definition will lead to unlawful censorship of speech by healthcare workers which is supportive of the Palestinian people and critical of Israel.”
Citing the David Miller employment tribunal, which ruled that the University of Bristol wrongfully dismissed the former academic over his antizionist views, the advice argues that there is a possible “binding precedent” that antizionist belief can amount to "a protected characteristic for the purpose of anti-discrimination law” - if the ruling in favour of the former academic is upheld after appeal.
The advice claims that opposition to Israel as a Jewish state is not, by itself, antisemitic.
It continues that “it will not be antisemitic” for a person to “challenge the moral legitimacy of its creation or continued existence as a state,” arguing that "It will only be antisemitic for a person to criticise Israel, or to challenge its right to exist, if they are motivated in doing so by hatred or prejudice toward Jews as Jews".
It claims that criticism of Israel, "including calls for its dissolution", may be motivated by "an honest and good-faith assessment" that Israel is committing "serious violations of international law... including the crime of genocide”.
NHS trusts risk acting unlawfully if they apply IHRA using "racist or Islamophobic stereotypes against Muslims", or by assuming Jewish people are inherently associated with Israel or Zionism, the advice goes on, warning trusts they could face legal action if they misuse the definition.
"If NHS Trusts apply the IHRA definition in a manner which is unlawful, they will face legal and reputational risks," it says, including claims from staff or patients alleging discrimination or breaches of their rights to freedom of religion and expression.
Addressing the fixation on Gaza of many healthcare workers, the advice argues that medical staff have "a profound professional and personal attachment to human rights and the protection of life".
“The public has a legitimate and weighty interest in hearing health workers’ views on issues on which they are well positioned to speak, and in health workers being able to identify themselves as such when doing so,” it goes on.
When he was health secretary, Wes Streeting forbade NHS staff from wearing their uniforms at pro-Palestinian demonstrations and displaying related symbols in the workplace.
But the advice suggests that articles including a keffiyeh in a medic’s office should not be treated as discriminatory.
The legal intervention has alarmed some in the Jewish community.
Writing in the JC, Alex Hearn, co-director of Labour Against Antisemitism, said: “What HW4P is claiming, stripped of the legal letterhead, is a right to talk over the Jewish community about the racism the Jewish community experiences. Nobody would concede that right to anyone else.
"If there is no agreed definition of antisemitism, then no one can ever be guilty of antisemitism. One begins to suspect that is the point."
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