Ruling that supported David Miller’s anti-Zionism failed to take into account rights of Jewish students, appeal court hears

Acting for Bristol, Barrister Chris Milsom quoted extensively from emails sent by Miller to journalists during a “frenzied week” in February 2021.

In one email read out in court, Miller told a JC reporter, “Jewish students on British campuses [are] being used as political pawns by a violent, racist foreign regime engaged in ethnic cleansing.”

In another quoted email, Miller told Ben Bloch, then a student journalist, “Zionism is and always has been a racist, violent, imperialist ideology premised on ethnic cleansing… It has no place in any society.

“Bristol's JSoc, like all JSocs, operates under the auspices of the Union of Jewish Students (UJS), an Israel lobby group.”

The court heard extracts from the original judgment, which claimed Miller’s comments had been “extraordinary and ill-judged” and “it was not appropriate for the claimant to bring the internal matter so firmly into the public debate.”

Much of Bristol University’s case centred around the way in which Miller’s belief – ruled as a protected characteristic in the original tribunal – was “manifested” or expressed.

The manifestation of beliefs must not threaten other protected characteristics, Milsom argued. Beliefs, opposing beliefs and non-believing beliefs “all warrant equal protection,” he said.

“The tribunal must look at the totality of beliefs in order to decide whether it is protected,” he went on.

Bristol’s lawyer argued: “The sole reason for [Miller’s] dismissal was his treatment of Jewish students and Jewish Student Societies (JSocs) and not his beliefs.”

Referring to the initial decision to fire Miller, Milsom asked the court to consider the “margin required” for dismissal.

“The court is not taking over the function of the decision maker… the primary decision maker is afforded an area where his or her judgement will be accepted.

“No margin of appreciation has been achieved,” he said, pointing to the tribunal ruling which he claimed “failed to recognise that rights are not one-sided.

“The claimant is free to manifest his beliefs provided he does not do it in a way [that has an adversarial] effect on students.

“We say the tribunal overstated the protection afforded to the claimant […] and failed to take into account the rights of others,” Milsom said.

He argued that the tribunal process should have been “broader” and taken into greater account the other students.

There was an extended discussion about what constitutes a protected belief in the Equality Act. “Belief in a political philosophy is capable of being a philosophical belief,” and therefore protected, Milsom said, “but pure political opinion does not fall within section 10 [of the act].”

“A belief in a state’s practices would be a political view, rather than a political philosophical belief,” he went on.

The judge asked: “Where does one draw the line between protected philosophical belief and purely political opinion?”

Milsom asserted that opinions on state practices “are not in and of themselves protected characteristics.”

A belief, he added, “must affect how a person lives their life or interacts with the world” and must not be “open to change.”

Milsom said there was a “tension” in the tribunal findings that Miller’s views on Israel were ruled as a protected belief – and therefore not open to change – and also protected as “academic speech”.

“If an individual’s opinions are fixed, then they cannot simultaneously warrant protection as academic speech,” Milsom stated.

This week’s EAT is the second stage in a potential four-step process. Miller could take the case to the Court of Appeal and then the Supreme Court. Miller is also challenging the 2024 tribunal on its ruling that he was at “contributory fault,” which reduced his overall compensation.

The EAT panel is due to sit for three days, with Zac Sammour appearing for Miller on Tuesday. A ruling is not expected this week. 

The appeal continues.