Palestine activists beware: The Queen's Speech may outlaw BDS

At the end of last year the former Conservative housing minister Robert Jenrick made it his New Year wish for Parliament to pass a law imposing “an absolute ban” on the Boycott, Divestment and Sanctions (BDS) movement in 2022.

Now it seems he may just be getting his wish. Palestine solidarity groups and activists are expecting the announcement of an anti-boycott bill on 10 May during the Queen's Speech.

This is perhaps unsurprising given that Boris Johnson not only promised an anti-BDS Bill in the Conservative manifesto, but he also reinforced this pledge in the last two Queen’s Speeches.

Jenrick will have been encouraged by the fact that anti-BDS laws have already been passed in over 30 American states after an intensive lobbying campaign by the American Israel Public Affairs Committee.

''The aim of the government’s proposed BDS Bill is simply to take its revenge on the Supreme Court by reversing their decision and opening the door to the prosecution of local councillors or members of pension boards who support BDS.''

Whilst he will get his Bill, he may end up disappointed, however.

These laws can’t actually ban people from boycotting Israeli goods, or even from advocating a boycott of Israeli goods. In the US the anti-BDS laws have run into a massive obstacle: the constitution.  

Under the first amendment any law that unreasonably constrains the right to free speech can be struck down by the courts. So the anti-BDS laws have had to be drafted in a roundabout way - making people sign a pledge not to boycott Israeli goods if they want a government contract.

Some states have limited the requirement to companies, and sometimes to companies over a certain size. This is because they fear that smaller ones or individuals would bog them down in lawsuits and they hope that bigger companies with multi-million contracts with state or federal authorities would know it’s not in their interest to be litigious.

If so, they obviously hadn’t met Rasmy Hassouna, a Palestinian American who owns a large engineering company that has a multi-million dollar contract with the City of Houston. He was furious when he found a new clause in his contract banning him from boycotting Israel. He took the State of Texas to court in January and won his case. 

Rasmy is a fighter. He had to fight the Israelis to get out of Gaza. Years later he had to fight US immigration officials over his American passport. They first gave him one with his birthplace marked as ‘Israel’. He refused to accept it unless they changed his birthplace  to the ‘Gaza Strip’.  After a stand-off, they relented.

Now he has holed the anti-BDS law below the waterline, not just in Texas, but across the States, giving every Palestinian American – indeed every American – the precedent that will make anti-BDS laws unenforceable.

You might think that, as we do not have a written constitution in the UK, this cannot happen over here. But you’d be wrong. The UK’s Supreme Court has already blocked the government’s first attempt to ban BDS. 

In 2015 the department of communities issued advice to local authorities not to ban procurement of goods from illegal Israeli settlements and gave guidance to local government pension boards not to ban investment in companies that trade in illegal Israeli settlements.

The guidance did not mention Israel or BDS. Officially it was just about ‘left-wing councils’ imposing ‘town hall boycotts’. But Matt Hancock, then a cabinet office minister, gave the game away when he flew to Jerusalem to make the announcement in the presence of the then Israeli prime minister Benyamin Netanyahu.

The Palestine Solidarity Campaign (PSC) took the Government to court, winning at first and then losing and finally winning in the Supreme Court to establish the principle that local authority pension boards have a duty to act in the interests of their pensioners, not of the government.

The aim of the government’s proposed BDS Bill is simply to take its revenge on the Supreme Court by reversing their decision and opening the door to the prosecution of local councillors or members of pension boards.

But this opens up a new problem for the government. The councillors are not asking for a boycott of Israeli goods. They are asking for a ban on trade with settlements. This would not be a boycott of Israel because the settlements are not in Israel. They are in Palestine.

Most of the anti-BDS laws in the US apply only to boycotts of Israel. Some of the more recent laws apply not only to Israel but also to ‘land controlled by Israel’. In the briefing note describing the BDS Bill for last year’s Queen’s Speech, the Government added five words that would have a similar effect.

Councils will be banned from “taking a different approach” to the national government, it says. “This will be in the form of preventing public institutions carrying out independent boycotts, divestments and sanctions against foreign countries or those linked to them.”

''The government itself faces two ways on the issue. The foreign office always insists that the settlements are illegal and an obstacle to peace. Furthermore, they are not in Israel.''

This is clearly an attempt to bring a ban on settlement trade within the scope of the BDS Bill. But while there is little support, at least in Parliament, for a boycott of Israeli goods, there is very broad support for a ban on settlement trade.

That has included the TUC since 2009 and the Co-op since 2013. The Labour and Liberal Democrat parties passed motions at their 2021 conferences supporting a settlement trade ban. The SNP also supports it. The TUC has 5.5 million members. The Co-op has more than 5 million. Taken together the political parties have 670,000. Is the BDS Bill going to put them all on the wrong side of the law?

Indeed some Conservatives privately concede that, as settlements are illegal, trade with settlements should also be illegal.

The government itself faces two ways on the issue. The foreign office always insists that the settlements are illegal and an obstacle to peace. Furthermore, they are not in Israel. Since 2013 foreign office business guidance for UK firms has been that it “does not support” trade with settlements and “does not encourage” them to import or export settlement goods.

This split goes back several years. It was the foreign office under William Hague that told UK firms that they “did not support” trade with settlements in 2013 and it was the communities department under Eric Pickles in 2015 that tried to stop local authorities and their pension boards from taking any action against settlements.

Robert Jenrick was one of Eric Pickles’ successors at the department of communities and he is continuing the battle against BDS.  As well as urging the Government to bring forward the BDS Bill, he tabled an amendment to an obscure Public Service Pensions Bill in an attempt to reverse the Supreme Court decision on BDS without waiting for the Bill.

The liberal view – that you can boycott whatever you like – was neatly summed up in an exchange between the Conservative MP Crispin Blunt and Boris Johnson, then the foreign secretary:

Crispin Blunt: What is our policy on goods and services produced in the settlements in the occupied Palestinian territories?

Boris Johnson: Our policy .. is that consumers should have the right to judge for themselves whether they wish to purchase them.

No comment required.

Martin Linton is a British Labour Party politician, who was the Member of Parliament for Battersea from 1997 to 2010. Prior to becoming an MP he was a journalist for the Guardian from 1981–97.

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