Have the Tricycle Theatre broken the law by refusing to host the Jewish Film Festival?
7 August 2014
Updated | It emerged on Tuesday the Tricycle Theatre in Kilburn has refused to host the UK Jewish Film Festival (UKJFF) for the first time in eight years. The theatre told UKJFF that they must reject longstanding funding from the Israeli Embassy if they wanted to use the venue. UKJFF refused and the relationship ended.
There has already been some excellent writing: see Nick Cohen, Archie Bland and Dorian Lynskey. Cohen makes a powerful case for the decision being anti-Semitic. I’m not going to go there, although as I have been saying on Twitter, in my view this is a bad move by the Tricycle. I thought it would be interesting, however, to investigate whether the Tricycle may have broken any laws.
Let’s start with the facts. The UKJFF is a charity which amongst other things runs an annual 3-week festival. I have attended many times and in the 2012 I chaired a discussion at the Tricycle after the screening of a documentary called The Law in These Parts, a documentary which is highly critical of the Israeli occupation of the West Bank. I think it is probably uncontroversial to say that the festival shows a very broad selection of films which offer a very wide range of viewpoints into Jewish, Israeli and Middle Eastern culture and politics. The festival obtains its funding from a number of sources, including the Israeli Embassy, which apparently gives £1,400 annually.
The Tricycle is a theatre and cinema which is also politically diverse in terms of its content. It says it “views the world through a variety of lenses, bringing unheard voices into the mainstream”.
The Tricycle has hosted the UKJFF for eight years. This year, following “a series of conversations“, UKJF say that they received the following letter from the theatre:
Given the present situation in Israel/Palestine, and the unforeseen and unhappy escalation that has occurred over the past three weeks, including a terrible loss of life, The Tricycle cannot be associated with any activity directly funded or supported by any party to the conflict…the Tricycle will be pleased to host the UKJFF provided that it occurs without the support or other endorsement from the Israeli Government.
For its part, the Tricycle has said
The Tricycle has always welcomed the Festival and wants it to go ahead. We have proudly hosted the UK Jewish Film Festival for many years. However, given the situation in Israel and Gaza, we do not believe that the festival should accept funding from any party to the current conflict. For that reason, we asked the UK Jewish Film Festival to reconsider its sponsorship by the Israeli Embassy. We also offered to replace that funding with money from our own resources. The Tricycle serves many communities and celebrates different cultures and through difficult, emotional times must aim for a place of political neutrality.
So we can work on the assumptions that:
- Tricycle have hosted UKJFF for eight years;
- During those eight years UKJFF has always received funding from the Israeli embassy;
- Tricycle has not until now raised an objection to that funding;
- This year, as a result of the war in Gaza, Tricycle decided that to host a festival which was part-funded by the Israeli state, it would be – or be seen to be – taking sides in the conflict;
- Tricycle therefore told UKJFF that unless it jettisoned the Israeli money, it would not be able to use its premises;
- As a compromise, Tricycle offered to make up the lost funding (around £1,400).
- UKJFF refused the offer.
I am going to add some assumptions which are not clear but I think are fair on the basis of the current information – if they are wrong then I will stand corrected:
8. This is the first time Tricycle have refused to host a film or event due to that film or event being funded in part by a government.
9. This is the first time Tricycle have placed a condition on an event or film that they must jettison a funder in return for being permitted to use the venue (notwithstanding the offer to match the funding).
10. It also appears that the Tricycle initially said that its board wanted to view all films made with Israeli backing in advance in order to approve their content, but this was removed as a condition when UKJFF said it was censorship.
Discrimination law
The starting point is the Equality Act 2010 which prohibits (amongst other things) discrimination on grounds of race, religion and belief. In particular, section 29 applies to the provision of services and s.29(1) provides that a “person… concerned with the provision of a service to the public or a section of the public (for payment or not) must not discriminate against a person requiring the service by not providing the person with the service”. There may be an issue of whether the Tricycle is offering a “service” to UKJFF, but as Carl Gardner points out, they publicly offer hire of the venue for “parties, meetings, award ceremonies, conferences, briefings, meetings, auditions, rehearsals and screenings”, so I think it probably is caught by s.29.
So, for example, the Supreme Court recently held that the Christian owners of a bed and breakfast had discriminated against a gay couple by refusing to provide them a double room.
The relevant protected characteristics here are race (which includes nationality), religion and belief. Judaism is a religion or race for the purposes of the Act. A belief is defined in the Act as “any religious or philosophical belief and a reference to belief includes a reference to a lack of belief“. In other words, you cannot be discriminated against if you are treated worse for being vegetarian and also for not being a vegetarian. Belief arguably includes political beliefs, such as, for example, supporting or not supporting the actions of the Israeli government.
The Equality Act prohibits two forms of discrimination. The first, “direct discrimination”, is where, because of a protected characteristic (e.g. race, religion etc.), A treats B less favourably than A treats or would treat others. The second, indirect discrimination, is where A applies to B a provision, criterion or practice which is discriminatory in relation to a relevant protected characteristic of B’s.
There is an important distinction between direct and indirect discrimination: only indirect discrimination has a defence, namely that the policy, despite putting people of a particular protected characteristic at a disadvantage, nonetheless is a “proportionate means of achieving a legitimate aim.”
One of the interesting quirks of this case is that both parties have justified their actions in the name of political neutrality. The Tricycle claim that by holding a festival backed (to a small extent) by the Israeli Embassy, they could be seen to be taking sides over the Gaza conflict. UKJFF claim that by demanding that it end its funding arrangement with the Israeli embassy, it also being asked to abandon its own neutrality in relation to the conflict. It would be forced into taking a political stance.
Against the law?
Taking direct discrimination first, was Tricycle’s decision to impose the funding requirement on UKJFF “because of” the organisation’s race, religion or beliefs”?
It is important to understand that a person may be found to have discriminated on grounds of race without having been what we might usually call racist. For example, a in 2009 the admissions policy of a Jewish school was found to be racially discriminatory but the Supreme Court was at pains to point out that their judgment “should not be read as giving rise to criticism on moral grounds… let alone as suggesting that these policies are “racist” as that word is generally understood” [9]. So it would be legitimate, legally, for a court to find that Tricycle had directly discriminated on grounds of religion without also branding Tricycle anti-Semitic.
Direct discrimination
I think we can probably discount direct discrimination on grounds of religion. This was clearly about politics. It might conceivably be said that because Jewish culture is so tightly bound up with Israel, the Jewish state, then it would be impossible in practice for UKJFF as a Jewish institution to disassociate from Israel – but that is a tough argument – see paragraph 150 of Fraser v UCU in which an employment tribunal concluded that “a belief in the Zionist project or an attachment to Israel or any similar sentiment cannot amount to a protected characteristic” in the sense of not being an intrinsic part of being Jewish (the case wasn’t pleaded on the basis of belief as a protected characteristic).
Direct discrimination on grounds of belief – or more precisely, lack of belief – might apply here, however. UKJFF would have to show that the requirement to reject funding from the Israel embassy, although cloaked under Tricycle’s stated aim to protect its own political neutrality, was in reality an attempt to force the festival to abandon its own neutral political stance. In other words, it would have had to publicly disassociate itself from Israel in order to use the venue. Note the wording of the letter UKJFF printed: it seems that Tricycle demanded the festival withdrew any “support or other endorsement from the Israeli Government” – this goes much further than just funding.
Another point which Mark Green, a barrister, has made to me by email is that although UKJFF is not Israel, the difference in treatment is arguably because of the connection with Israel. Nationality is included in the “race” protected characteristic. Section 13 of the Equality Act (which defines direct discrimination) does not require that the protected characteristic is shared by the person being subjected to a difference in treatment, merely that it is because of the protected characteristic. So it might be said that UKJFF’s mere association with Israel has caused the difference in treatment, therefore causing discrimination. See further Carl Gardner’s detailed comment below – he puts the case convincingly, in my view.
It is a difficult argument to prove as in a hotly contested political arena, both sides have legitimate arguments about neutrality and both cannot be right. A court may just steer clear.
Indirect discrimination
The stronger case would be indirect discrimination. The Tricycle’s stated policy is that it will “not accept sponsorship from any government agency involved in the [Gaza] conflict”. The statutory question is whether that policy “puts, or would put, persons with whom B shares the characteristic at a particular disadvantage when compared with persons with whom B does not share it”. Tricycle have a get out if they can show that it was a proportionate means of achieving a legitimate aim.
The case for discrimination on grounds of lack of political belief is probably strongest, although the UKJFF would have to show political belief is a protected characteristic. My view is that this is the way the law is going – see Redfern v UK. But in any event, given that this is a Jewish festival, the detrimental effect might reasonably be said to be on the Jewish community, not just political supporters/non-supporters of Israel.
Tricycle say, and there is no reason to doubt this, that they would not accept funding from Hamas either. But a court would look at the practical reality. Why was this policy imposed? The answer must be that the policy was imposed for one purpose: to force the UKJFF to jettison its relationship with the Israeli Embassy – not just funding but “support or other endorsement“. I am sure it is right that Tricycle would reject a Hamas funded festival, but that is not going to happen, is it?
There is no similar policy in relation to any other conflict, nor as far as we know has there ever been one. What is it about Gaza which makes it a special case? Whether or not you accept that Israel/Hamas have acted disproportionately or committed war crimes, it is difficult to see why their conduct is in a different category to, for example, the UK and USA in Iraq where tens of thousands of civilians died – as Nick Cohen points out, the Tricycle itself is mainly funded by the British government and presumably remained so during the Iraq war. What about Syria, Ukraine, Egypt, Libya? This is not just “whataboutism” – Tricycle would have to show they are not putting Jews or those who associate with Israel at a particular disadvantage compared to other groups.
In June of this year, the Tricycle hosted the London Asian Film Festival, which is partly funded by the Indian government (the Nehru Centre). The Indian government has its own human rights issues, not least over the Kashmir conflict. Tricycle would have to justify why the funding requirement was not applied in that case and others.
Another issue is that Tricycle’s stated reason for their actions may not be the whole picture. Philippe Sands QC, a Tricycle board member, told Newsnight (here at 10:45) that the theatre were concerned after protests at last year’s festival about the potential “incitement” which the Israeli Embassy “logo” might cause “in Kilburn“. Is “in Kilburn” is a euphemism for “predominantly Muslim”? If the real issue was that putting a logo on a brochure would incite the local community, isn’t that an issue which the theatre can deal with via the police rather than by erasing the logo under the auspices of political neutrality?
This brings us to “proportionate means of achieving a legitimate aim“. Proportionality was defined by Lord Sumption in the recent Bank Mellat case (at [20]) as involving four requirements:
(i) whether its objective is sufficiently important to justify the limitation of a fundamental right;
(ii) whether it is rationally connected to the objective;
(iii) whether a less intrusive measure could have been used; and
(iv) whether, having regard to these matters and to the severity of the consequences, a fair balance has been struck between the rights of the individual and the interests of the community.
The key questions relate to (iii) and (iv): Could a less intrusive measure have been used here? Was a fair balance struck? Stepping back, the Tricycle has refused to host 26 films in a festival organised by an apolitical, British, cultural institution. We might quibble over “apolitical”, but given how common state funding is in the arts, the close cultural connection Jewish institutions have to the Jewish state, the obviously politically balanced content of the festival programme, it is difficult to see why the Embassy sponsorship was a ‘red line’ for the Tricycle.
Would the fact that a politically neutral Jewish festival included the logo of the Israeli embassy on its publicity materials truly have compromised the Tricycle’s political neutrality? The Theatre has repeatedly stated that it would not want to accept funding from the Israeli government itself, but it wasn’t really being asked to, was it?
Or was it more concerned, as the Sands interview suggests, with the protests which would inevitably accompany an event which had even a whiff of Israel?
If the true concern was perception and protests then one might suggest a number of other, less intrusive, means of achieving Tricycle’s objective of being perceived as neutral. For example, a statement on the literature that the involvement of the Israeli embassy does not imply that the Tricycle was taking a stance on Gaza. Or a sign at the door to that effect.
The offer to match funding is something of a red herring, because I am sure that UKJFF was not concerned about losing the paltry sum of £1,400 but rather the message that jettisoning the Israeli Embassy would send – that it was taking a stance on Gaza. It is easy to see why the didn’t, or even couldn’t, accept.
Anti-Semitism, racism and discrimination
It is always difficult to assess a case without the full facts, and particularly one which involves so much passion and emotion. A court would be reluctant to wade into this charged political debate, but it does seem that Tricycle’s decision, whatever the motives, may have been disproportionate in the circumstances. Surely there were other, less intrusive, ways in which it could satisfy the Kilburn community that it was politically neutral than forcing UKJFF to abandon its own neutrality. And why pick Gaza and the UKJFF over all other conflicts and institutions?
So, this was probably not anti-Semitism, but it may well have been unlawful discrimination.
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This is the best legal analysis I have seen on this subject so far (whether 100% correct or otherwise). There are some fantastic (and, regrettably, fantastical) comments and rebuttals too. After a 20 year career in film finance and distribution (12 of which as a lawyer), and now owning a leading film exhibition company for the UK’s largest ethnic community, I take a particular interest.
Accordingly, I met at length with the Tricycle last week. I refused to leave their premises until someone came down and explained their decision. This was before the media backlash and “boycott protest” took hold, since when they seem to have gone silent. Even in my meeting, they were fairly tight-lipped, but this is what I learned, and I feel it is crucially important in the contextualisation of Adam’s (and the other lawyers’) arguments:
1. The issue was simply the Israeli Embassy logo, and how it would be received by the public if placed on festival literature. It was not at all a “political stance” against the Israel/Gaza conflict per se. That was a subsequent attempt at reversing a rationale into the initial decision.
2. The same action would have been taken against the Hamas logo (but, naturally, that is a rather unlikely scenario).
3. This is why the Tricycle is not opposed to showing films (or plays) themselves being funded by Israel (or Hamas). In such cases, the logo would be placed solely at the end of the film credits, and seen only by those who had already paid and watched the event. Indeed, and I can tell you this first hand, the Tricycle has over many years screened numerous films funded by all sorts of “unsavoury” governments, organisations, funds and individuals.
4. If Israeli money (rather than the logo) was in fact the issue, it is likely that Indhu herself would have also refused her Israeli-funded leadership training.
5. There is no policy document to which the Tricycle decision can be referred. There is no objective ruling that has been followed. There is no official line that the Israel/Gaza conflict has crossed. The decision was taken in isolation, and without reference to any comparable situation.
6. There is (or had been, by last week) no decision about extrapolating the decision to future festivals or screenings. Indeed, there is no actual “rule”, regulation or policy in existence (save possibly for the subsequently posted comments on the Tricycle website) that can be objectively applied to or followed in other cases.
I hope this helps in deciphering the various legal arguments.
The starting point here should be a discussion on the use and objectives of the political campaign of boycott. What is your legal perspective on the effective boycott of apartheid South Africa? In the case of Israel – which is not the case for say India or Syria and certainly not for the UK – Palestinian civil society has called for a boycott of Israeli institutions – including cultural and academic – and Israeli-government funded events (see call here http://pacbi.org/etemplate.php?id=869). This is because unless they explicitly call for an end to the occupation, apartheid and for the right of return for Palestinian refugees, Israeli institutions are complicit in maintaining the status quo, if not actively engaged in supporting war crimes. Israeli (often foreign ministry) funding of cultural events abroad is a key issue for the boycott campaign because of Israel’s ‘Brand Israel’ strategy:
‘We see culture as a propaganda tool of the first rank, and I do not differentiate between propaganda and culture.’
Nissim Ben-Sheetrit, Israeli foreign ministry, 2005
‘We will send well-known novelists and writers overseas, theatre companies, exhibits. This way, you show Israel’s prettier face, so we are not thought of purely in the context of war.’
Arye Mekel, Israeli foreign ministry, 2009
To paraphrase one prominent Israeli filmmaker speaking after a screening (NOT Israeli gov-funded) in the UK a few years ago: I sometimes feel like I should stop making films critical of Israel because the state just uses them to congratulate itself on what a great country it is that it allows for critical voices, while it continues to occupy, colonise, ethnically cleanse and bomb civilians, etc.
Critical films alone will not end apartheid, but boycott, divestment and sanctions have a good chance of doing so.
Although it took the televised massacre of Palestinian civilians, including over 400 children, for the Tricycle to reject Israeli funding, they had been approached in previous years by supporters of the Palestinian boycott call. So their decision is made if not explicitly in response to that call, with an awareness of the principles of the boycott campaign.
Only once you accept that there is an active and effective boycott campaign underway can this move by the Tricycle be seen in its proper context. You write:
‘UKJFF would have to show that the requirement to reject funding from the Israel embassy, although cloaked under Tricycle’s stated aim to protect its own political neutrality, was in reality an attempt to force the festival to abandon its own neutral political stance. In other words, it would have had to publicly disassociate itself from Israel in order to use the venue. Note the wording of the letter UKJFF printed: it seems that Tricycle demanded the festival withdrew any “support or other endorsement from the Israeli Government” – this goes much further than just funding.’
How can you claim UKJFF has a neutral stance when it is accepting money from state that is maintaining a belligerent occupation and committing violations of international humanitarian law every single day – appallingly in the name of all Jews – and that is subject to a boycott by the people it occupies? To accept their money is to reject the boycott call and remain complicit with the apartheid state, tying itself to the Zionist political project. So yes, of course it is being asked to disassociate with Israel and reject its funds and endorsement. It is a Jewish festival, not an Israeli or (explicitly) Zionist festival, and many Jews refuse this conflation of Jewish and Israeli identity, and would like to see evidence of the neutrality of the UKJFF.
You write about ‘the close cultural connection Jewish institutions have to the Jewish state’, but these are being challenged by Jewish individuals and groups the world over not only because they reject the zionist political project but because of what the so-called Jewish state is: an apartheid state. How else would you like civil society to respond to this crime under international law? Boycott is a just and proportionate response.
Perhaps you disagree that Israel is an apartheid state? The ICSPCA defines the crime of apartheid as ‘inhuman acts committed for the purpose of establishing and maintaining domination by one racial group … over another racial group … and systematically oppressing them’. The UN’s special rapporteur for Palestine, Professor John Dugard (himself a South African), concluded that ‘elements of the Israeli occupation constitute forms of colonialism and of apartheid, which are contrary to international law’. In Israel, there are colour-coded identity documents and vehicle registration plates, settler-only roads, check-points, aerial drone surveillance and of course the apartheid Wall – all of which make it easy to identify a person in the wrong place. Town planning controls are deployed to keep Jewish areas free of Palestinians, or to dislodge them from areas of intended Jewish expansion. Schools in Palestinian areas are kept starved of funds to ensure a sub-standard education, and the curricula prevent children from learning about their own history and cultural heritage. The settler-only roads divide the Palestinian West Bank into overcrowded and impoverished bantustans. I could go on…
Thanks for the comment – I am sure a lot of people feel the same way. The problem is that Tricycle hasn’t said it wants to boycott Israel or organisations connected to Israel, but rather that it is concerned its own impartiality would be affected by the financial support and other support Israel gives to the UKJFF. If this was an issue of conscience then that would engage a whole collection of arguments (like the ones you have made) – but it isn’t really. I think the true position is that the Tricycle are either very worried about boycotter protests or they are masking a political position behind a policy of neutrality. Either way, this decision is in my view using a hammer to crack a nut.
Hi Adam, I can assure you that this is a belated response to appeals made by supporters of the Palestinian boycott call: the Tricycle were approached in 2012, and there were protests outside the theatre in 2013. The Tricycle have decided not to explicitly tie their decision to the boycott, but their decision does not exist in a vacuum, or come out of the blue, and is consistent with the boycott guidelines regarding Israeli government (foreign ministry, embassy, etc) funding of cultural events abroad. The fact this is a ‘Jewish’ film festival is irrelevant: Israeli government funding has been refused by a number of cultural festival organisers in the UK, but they don’t always go public with their decision. Many people are ‘silently’ boycotting Israel in solidarity with the Palestinians, and while we would prefer them to publicly support the BDS call, that is a significant step in the right direction.
The ‘apartheid’ smear is nonsense, please read this:
http://www.bicom.org.uk/analysis-article/18870/
Just a few points in rebuttal: There are 12 Arab MKs (MPs) in the current Knesset and
they are among the government’s harshest critics. 21 Arabs have served in the Cabinet (e.g. Raleb Majadele), in the civil service (7.8 per cent of civil servants in Israel are Arab), and
on the Supreme Court (Justice Salim Joubran). It was an Israeli Arab judge, George Karra, who sentenced former President of Israel, Moshe Katsav, to jail for seven years on a
rape conviction.
You do your cause no favours with such ill-informed clichés. And if that’s the kind of falsehood that persuaded Philippe Sands and the others on the Tricycle Board, the case against them is even more damning.
When people refer to apartheid they are clearly referring to the 47-year-long occupation of the Palestinian Territories. Israel has effectively annexed the land and has not granted full rights to the millions of people living in those territories. The similarities between the situation and apartheid are clear.
But let’s take a quick look at the outliers that you have pointed out to suggest that there’s not really much in the way of institutional racial discrimination in Israel:
1) Israel’s Central Elections Committee (CEC) may disqualify a candidate or a party if they ‘deny the existence of the state of Israel as the state of the Jewish people’
2) Of the 2280 Knesset seats elected to the 19 Knessets since the founding of the state, 176 have been held by Palestinian Arabs
3) Of the 1098 Ministerial positions in that time, in 33 governments, Israeli Arabs have held three positions
4) No Arab party has ever been part of a governing coalition
5) Arabic is still currently an ‘official’ language (despite attempts to change its status) but on the ground officials routinely reject official documents written in Arabic and in 2009 the Transport Minister removed all Arabic town names from road signs and replaced them with hebraised transliterations in Arabic
6) The Israeli national anthem, its flag and its coat of arms are heavily imbued with religious and racial iconography. You wouldn’t know that >20% of the population is native and Arab.
7) 30% of all Israel’s unemployed are Arabs and this is in a state where Haredim are nearly all unemployed. This figure coincidentally represents about a third of Israeli Arabs. A special welfare system exists to support the Ultra Orthodox. Not the Arabs.
8) Only 6% of Israeli civil service workers are Arabs and in some departments that’s as low as 1%.
9) Arab citizens hold fewer than 60 of 5000 University Faculty positions
10) Only 4 teacher training institutions operate in the Arab Education System vs 55 for Hebrew
11) The government spends approx NIS 1,800 on every Jewish student vs NIS 530 on every Arab student
12) The Israeli government has sweeping authority to declare towns and villages ‘National Priority Areas’ to give extra resources. Of the 553 localities chosen for this status 4 are Arab.
13) Israeli Jews receive 30% more welfare per capita then Israeli Arabs
14) 70,000 Israeli Bedouin Arabs live in villages not recognised by Israel despite most of these villages pre-existing the foundation of the state
The list of institutional racism goes on and on.
Jonathan, your understanding of apartheid is rather slim. As somebody that worked on the SA Truth Commission, some of Isreal’s most recent actions are of the nature that the Nationalists in South Africa might have wished to do, but would never have contemplated.
Magnus Malan ordering the shelling of a township? Unthinkable.
The apartheid government built infrastructure in the homelands to try and make them viable states. Israel destroys infrastructure – and one can only speculate why.
Tell this to those suffering in Iraq. I am sure they will be happy to agree their suffering at the hand of ISIS is less than the well fed, Gazans who have received billions in funding from UN. They are being murdered but you are blinded in your blame game
Antisemitic and abhorrent. If you want to play the blame game why not choose ISIS or Assad. They haven’t killed 120,000 in Syria or thousands in Iraq, even cutting babies in half. It’s all propaganda.
Why do Jewish supporters of Israel try and use racism and discrimination as something to attack people with? In mine and many people’s opinions, Israel is one of the most racist and discriminating countries in the world, if not the most! Please stop supporting them blindly and put pressure on them to treat Palestinians like human beings! Everybody deserves the right to be treated fairly and allowed to live as a free man, woman or child!
By “Jewish supporters of Israel” do you mean the UKJFF or me?
If Israel is “one of the most racist and discriminating countries in the world” why do 77 per cent of the Arab citizens of Israel say that they prefer living in Israel to any other country in
the world?
http://www.ynetnews.com/articles/0,7340,L-3559045,00.html
And why would an Israeli Arab journalist say this? :
“An Arab member of the Knesset who goes all the way to the US and Canada to tell university students and professors that Israel is an apartheid state is not only a hypocrite and a liar, but is also causing huge damage to the interests of his own Arab voters and constituents. If
Israel were an apartheid state, what is this Arab doing in the Knesset? Doesn’t apartheid mean that someone like this Knesset member would not, in the first place, even
be permitted to run in an election? Fortunately, Arab citizens can go to the same beaches, restaurants and shopping malls as Jews in this ‘apartheid’ state. Moreover,
they can run in any election and even have a minister in the government [Raleb Majadlah] for the first time. In this ‘apartheid’ state, the Arab community has a free media that many Palestinians in the West Bank and Gaza Strip envy. Ironically, an Arab newspaper in Nazareth or Haifa that is licensed by Israel enjoys more freedom than the media controlled by Hamas and Fatah, as well as most corrupt Arab dictatorships.
– Khaled Abu Toameh, Israeli Arab journalist
You don’t denounce Assad or ISIS. We can see you have found Jews guilty without proof
I can’t see how the UKJFF claims a neutral grounds yet continues to get funding from Israel gov’t representative in the UK. And if the discretion of Trustees is wide as it can be interpreted under the Equalities Act, then I think they made the right call in wanting to disassociate themselves from any faction of the two conflicting sides in the Gaza. Rationally, it’s hard for UKJFF to disassociate itself from Israel gov’t who is represented by their funders. Another interesting case to look out for
The whole tone of this “article” is contrived and misleading. The arguments in the article meander to a conclusion that you clearly wished to reach, for publicity seeking purposes.
The headline is false since the Tricycle did not refuse to host the festival. You are therefore either dishonest or very stupid for headlining it in this way and allowing that misleading headline to remain, despite this having been pointed out. Neither of those are good characteristics in a lawyer.
Well, I can tell you, Jonathan, Indhu is a really nice sweet-natured girl and wouldn’t do anything to court controversy.
I think she is saying what a lot of people think; that enough is enough, regarding the West Bank and Gaza.
I have no doubt that she is lovely, Daniel. I am pretty sure it was certain people on the Board who initiated this outrage – one in particular – and no-one argued against him – and she had no option but to go along with it. It’s like RIBA where Angela Brady led the attempt (which failed) to kick Israel out of the IUA. By all accounts it was sprung on RIBA Council and there was no-one with the knowledge or time to rebut the lies.
Don’t get me started on RIBA.
Interesting but academic — as no-one will bring a prosecution. The Tricycle’s action is indubitably antisemitic because it is singling out Israel for its political test, it has not applied that test to any previous user of the theatre or indeed to any film sponsored by a national film board. See the EUMC Definition of antisemitism – singling out Israel is antisemitic:
http://www.european-forum-on-antisemitism.org/working-definition-of-antisemitism/english/
350 people demonstrated at the Tricycle tonight in an almost spontaneous show of opposition to its antisemitism (arranged at 2 days notice). That shows the strength of feeling. Phillipe Sands and the others on their board have really got this one wrong.
The “working” definition is nonsensical. It claims that “Holding Jews collectively responsible for actions of the state of Israel” could be deemed antisemitic. As Israel defines itself as the Jewish state/national homeland of the Jewish people, is it any wonder Israel and Jews are conflated? And doesn’t this make Israel itself antisemitic?
Thank God no one takes this “working” definition seriously; it’s been dropped from the FRA website and has no standing in law.
Will the theatre reject a Muslim film festival where some sponsorship comes from say the government of Qatar? (Hamas’s financial sponsor) Or a western Chinese festival sponsored by the government of western China? ( note the little reported recent slaughter of Muslims) The theatre’s trustees discussion should produce a show of pinhead dancing
Well if they have pulled it on against the background of a more powerful Jewish lobby, why wouldn’t it be even easier for the other??
Your comment makes no sense, sorry.
Typical of anti Semitic nonsense that is being put out since Gaza. No reaction though to Christian or Yazidis murder proves the Trycyle is being discriminate.
The Gate Theatre, whose artistic director has made statements supportive of the Tricycle, did partner with the Nour festival last year, which was supported by an agency of the government of Qatar. I challenge shim about this on Twitter, to which his response was (1) that he didn’t realise (2) that he is concerned about this “oversight” (3) that they will not partner with Nour this year and (4) that the theatre received no Qatari money. He also admitted he did not know whether the Tricycle had been expected itself to accept Israeli funds (I don’t think it was).
I think this shows how unobservant and uninquisitive arts managers can be, when not dealing with Israel.
This is all somewhat academic since no-one is going to bring a prosecution against the Tricycle. However it’s unquestionably antisemitic because no other organisation has been obliged by the Tricycle to jump through this political hurdle. See the EUMC Definition of Antisemitism:
http://www.european-forum-on-antisemitism.org/working-definition-of-antisemitism/english/
“Applying double standards by requiring of [Israel] a behaviour not expected or demanded of any other democratic nation” is antisemitic.
And the revelation in The Guardian’s piece that they wanted to vet the films sponsored by the Embassy is simply outrageous.
350 people protested tonight outside the Tricycle – that shows the depth of feeling.
Just one question: ““Applying double standards by requiring of [Israel] a behaviour not expected or demanded of any other democratic nation” ”
Why “democratic”? Don’t we have any expectations or requirements for non-democratic nations?
I agree. It is an odd although often used distinction. There is no magic to democracy and democracies exist on a spectrum. We do expect more of democracies, but that doesn’t lessen the moral load for non-democracies.
Indeed. Democracy is simply a method of electing a government. It is generally thought to be the worst apart from all the alternatives. It says nothing about the quality of that government. For instance, Hong Kong under the British was undemocratic, but in most areas of life the state was quite liberal by global standards. By contrast, a well known historical state subject to Godwin’s law was originally democratically elected.
For non-Godwin examples, it might be observed that in most modern democracies the state is becoming ever more authoritarian (note, not necessarily in the tyrannical sense, but rather the more technical sense of trying to micromanage many areas of life that it did not involve itself in previously).
It is true as a matter of observation that democracies worthy of the name tend to be much freer countries, more respectful of human rights etc, but that does not mean we should not require the same standards from non-democracies.
The answer is no. We accept the terrorist state to be terrorist in all ways. Assad has got away with killing 120,000 and ISIS has already killed thousands. No Islamic bans at the Trycyle theatre.
A few points:
i. At various points you seem to conflate a country (Israel) with a legal person (The government of Israel). You seem to rest your argument about discrimination on the basis of nationality on the two being the same.
ii. That legal person may well be unusually popular among members of the Jewish community. Suppose you took objection to a natural person, such as George Galloway, who is popular among some community in the UK, such as Muslims. The argument that you discriminate against a group which favours a natural or legal person by refusing to be directly or indirectly sponsored by them is somewhat radical in effect, although I am not sufficiently up on current developments in discrimination law to know whether it is radical as a development of the law.
iii. You seem to doubt that the theatre would have required Hamas advertising to be removed. Factually, that doesn’t stack up, especially given s. 12 Terrorism Act 2000.
iv. You seem to argue that it is direct discrimination on the grounds of belief to refuse to host an event which promotes political aims and positions of which you disapprove, and to refuse sponsorship from political groups of whom you disapprove. This, if correct, would require organisations to accept British National Party sponsorship for anything they were prepared to have sponsored by BNP Paribas. The BNP may be extremely unpleasant, but until they are proscribed (sadly impermissible, whatever I may wish) they are as entitled to the protection of the law as any other party.
v. To be sponsored by one party to a conflict is not, as you describe it, neutrality. When the Reading and Leeds festivals were sponsored by Carling, they could not have been described as neutral as to whether someone drank Carling or Becks Vier. Nor could anything sponsored by Japan be regarded as being neutral in 1916 between Allied and the Central Powers.
vi. In this case the effect was on a Jewish festival. The policy is not specific to such festivals. If the Israeli embassy had spent some of its public diplomacy budget on sponsoring a festival of Humanism, the same rule would apply.
vii. I’m not sure that a decision to be neutral in one dispute but not another is fatal, or even all that problematic.
iix. If I may be permitted briefly to defend my country, while Iraq may have been, to say the least, on challenging legal ground, it was not characterised by war crimes which made up a large portion of the attacks of at least one side (probably both). Additionally, waging a war of aggression isn’t a war crime, and can’t be until it has a definition.
ix. India is not currently at war.
x. Theatres need premises licences, both to perform plays and to show films. These are the same licences, and the issuing bodies have the same objectives, as alcohol licences. That a particular activity would cause crime or disorder or endanger public safety is a perfectly reason to refuse a booking, and in fact failure to refuse such a booking might be grounds to remove the licence of the venue. Parliament has laid down those objectives, declared them to be important and in some cases to justify prohibiting outright the showing of films at particular premises.
xi. A sign on the door effectively saying “Any resemblance this sponsorship has to sponsorship is wholly coincidental” would be unlikely to be effective in removing the risk. In any case, it is you who suggests that their real reason is to remove that risk. If, as you suggest, that was their reason, then presumably they thought a sign would not do the job.
xii. The interpretations you argue for are in some places a stretch, and Parliament was very clear that courts should not stretch the words of an act in a way which is incompatible with convention rights. Compulsory endorsement of political causes tramples pretty heavily on Articles 9 and 10.
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This is the first time I have looked at the Equalities Act 2010, but I struggle to see how the facts in this case trigger the necessary requirements for indirect discrimination. Clause 19 of the Act requires there to be:
1) a discriminating person: in this case, allegedly, Tricycle;
2) a provision, criterion or practice which is discriminatory: in this case, the refusal to hire out the theatre to people who take money from Israel or Hamas;
3) a person whom this provision is applied to: that can only be potential hirers of the theatre, specifically in this case, UKJFF (and not the prospective audience who will miss out if the festival is cancelled – whether Jews or others – because the Tricycle policy makes no attempt to check whether ticket-buyers have received money from Israel or Hamas); and
4) a protected characteristic of the person in (3).
What is the protected characteristic of UKJFF? At first sight, the Jewish-ness of the UKJFF might be the relevant characteristic. But that would only apply, I suggest, if the Tricycle policy asked whether hirers had ever taken money from Israel or Hamas. But that isn’t the Tricycle policy. The question facing UKJFF is: Are you willing to forgo the Israeli money this time round and take Tricycle’s instead? UKJFF isn’t saying “No” on the grounds that it’s Jewish; it’s saying “No” because it wants to be politically neutral.
Which brings us the Adam’s argument that the protected characteristic is that of neutrality (or “lack of political belief”) which Adam says is the strongest ground. But how does neutrality put one at a disadvantage in relation to the test applied by Tricycle? We are talking about taking money from Israel or Hamas, not giving to it. Being neutral in the Israel-Hamas dispute doesn’t make one more likely to fall foul of the Tricycle rule; it makes one less likely.
As Adam says in his post, “… both sides have legitimate arguments about neutrality … A court may just steer clear.” I wonder whether that the court’s best reason for steering clear is that – whatever the rights and wrongs of Tricycle’s policy – the (presumed) facts of this case don’t get over the relevant hurdles for discrimination.
Your conclusion that the boycott could amount to unlawful indirect discrimination against the Jews is interesting because it suggests that a boycott of a comparable entity having government funding (eg. a North Korean Film Festival) might not be unlawful if it didn’t have a similar religious/racial diaspora to be affected by it?
I do hope Adam comes back and answers your question.
You have rather missed the point, given that we are discussing legal issues surrounding the Equality Act here.
Indirect, or, for that matter, direct, discrimination requires two parties – one to discriminate, and the other to suffer the discrimination.
Here, Mr Wagner writes of the Jewish Film Festival, and explores the possible legal issues surrounding the Tricycle’s original decision: in this instance, because of the Jewish community issue, it is relevant to examine the question of indirect discrimination. When discussing such legal issues, the ‘ah, but what if’ fantasy is irrelevant; those arguing for and against refer to the existing issue, applicable legislation and existing and past comparable issues (which can be brought together under the heading ‘case law’).
Taking your example – that there is no North Korean community in the UK to be affected (and if there were, it would, as you will realise, be composed of those who have defected from North Korea, North Koreans tending to come here as asylum seekers) – if there were a North Korean Film Festival part or wholly funded by the North Korean Embassy, and if the Tricycle Theatre declined to host it (either for the first time or after having hosted it previously) unless the Embassy funding could be replaced by the Theatre’s own, on the grounds that it found the North Korean regime to be oppressive, etc., questions about the Equality Act wouldn’t be triggered – it seems unlikely that those fleeing the regime would claim they were being discriminated against because a film festival funded by that regime was not going to be held.
Two questions that I’d love the learned gentlemen’s opinion on:
What if the Tricycle said something like this – “We think Israeli action is Gaza is/was disproportionate. In response to this we can not in conscience be associated with the Israeli government. Therefore we respectfully ask that you do not accept funding from the Israel government. We will reassess our position next year.”
How would this change your answers above?
Secondly, if London’s Afrikaner Community had a Afrikaans Film Festival circa 1988 in the Tricycle, which the SA government sponsored, would your arguments apply similarly if the Tricycle acted in a similar way? Did they miss a trick?
Answer 1: Yes – the Tricycle would be in breach of its charitable objectives and would have undermined its neutrality. On discrimination – it would bring in issues of conscience and proportionality, but the result I think would be the same.
2. The Afrikaner community vis-a-vis the SA Apartheid government is not analogous to the Jewish community vis-a-vis Israel. An appropriate analogy would be the Jewish Film Festival being sponsored in 1988 by the SA government. If so, the same argument applies subject to the old Race Relations Law not Equality Act.
Well, I vote Labour and the party line is thus:
“Labour remains committed to a comprehensive peace based on a two state solution, international law and a secure Israel alongside a secure and viable state of Palestine.
Labour will uphold the principles of equality for all Palestinians and Israelis by respecting human rights and applying international law in all relations and dealings with Israel and the Palestinians.
Labour recognises that the illegal settlements and their continued expansion in the West Bank remain key obstacles to resolving the conflict. Labour has taken and will maintain domestic action to introduce labelling transparency. Labour will not encourage or support any investment or financial activities within illegal settlements, and will seek a Europe-wide approach to settlement products. Labour also supports an immediate end to the blockade of Gaza, allowing the free movement of trade, aid and people.”
Thanks for the answers, I’m not sure I follow though:
1. So charitable institutions must always be neutral in UK Law and can not take a position of conscience?
2. Could you clarify why it’s not the same? Is it because the Jewish Community is a religious community and the other is language/culture based?
What about the British Red Cross, which is affiliated to the ICRC which strongly implied Israel committed war crimes?
The Red Cross has taken sides as does oxfam and Stop the War. It is however silent on the war of ISIS and Assad
As I said above, the overall purpose of charities cannot be political but they can indeed voice opinions on political matters and be involved in campaigning.
Your response requires qualification to avoid confusion, otherwise it would appear to mean that, for instance, ‘Save the Chlidren’ could lend public support to a political party in a General Election, and campaign on its behalf. Such political activity and campaigning, per the Charity Commission’s rules, can only be ‘in the context of supporting its delivery of its charitable purposes’ – if one accepts that the charitable purposes of the Tricycle may be summarised as indicated by the Tricycle in its section on individuals leaving legacies, i.e. ‘We rely on the generosity of individuals to help fund our main programming and education work, alongside specific projects such as talent development, writer’s attachments and our Tricycle Young Company. Remembering the Tricycle Theatre in your Will ensures we can continue to present the very best British and international productions, and inspire future generations of theatre makers through our creative learning programme.’ then any political activity or campaigning by the Tricycle would, of necessity, be limited to, for example, trying to ensure the continued existence of the Arts Council, lobbying local politicians to ensure that it continues to receive its funding from Brent Council, or, perhaps, lending its support to a campaign to teach drama in schools.
This is very interesting. If the courts were to create that precedent on the basis of political belief, which seems like the only way the Tricycle Theatre could be found to be breaking the law, could those Russians who’ve had their assets in the UK frozen then use that precedent to over-turn the sanctions against them?
Thanks for writing this, Adam. This is fascinating.
I’m actually more interested in the direct discrimination angle, and the idea of this as discrimination against the UKJFF (or UK Jewish Film) on the grounds of the nationality of one of their supporters.
It’s clear this is direct discrimination: the Dutch embassy will I expect support the festival again (well, the Dutch government has made lots of cultural cuts, but let’s hope so). The difference between the two is nationality. And indeed the Tricycle publicly admits that it’s the nationality of the embassy which is the problem. So how could the Tricycle defend itself?
Well, there’s only one argument available, isn’t there? Which is that pursuant to section 29 of the Equality Act that there is a “material difference between the circumstances relating to each case”.
But the “defensive” comparison here can’t be between the Dutch and Israeli embassies. The comparison must be between the material circumstances of the UKJFF case and other real or imagined festivals.
Nor can the argument be that there are materially different circumstances simply rely on saying “Israel is different”. If that were acceptable, it would always be legal to refuse to hire employees on the grounds that their mum is French, the defence being “France is different” (for France, insert Nigeria, India, Ireland or wherever you like). That can’t be right.
Can they defend themselves on the basis that there’s actually no discrimination at all because they’d treat everyone alike who was funded by Israel at the moment? Again, I think there must be something wrong with this, because it would legalise sacking people because they’re Australian, say, as long as they treat all Australians the same.
In fact, these last two paragraphs are just two ways of saying the same thing, and I don’t see how either approach can be a sound argument against direct “third party” nationality discrimination. What’s interesting is, if this is right, it strikes legally at the very heart of BDS thinking, doesn’t it?
So the Tricycle is left with defending itself on the basis of there being a “material difference between the circumstances” based on a detailed, objective assessment of what are the circumstances at hand.
At that point, the “Nick Cohen” argument about “Cameron’s dirty money” (or indeed “Blair’s dirty money”) comes into play legally, doesn’t it? Because how does one, on an objective assessment, distinguish between “the current conflict” and others; and between the Israeli role in it, and that of other countries?
As far as the UK is concerned, it is hard to say that objectively, the UK has no role in the deaths of children in Gaza. A foreign minister has resigned, this week, in protest at its policy, specifically on Gaza. And it is I think reviewing arms sales. Is it objective to distinguish the cases on the basis that “Israel’s role is bigger”? How can it be, if the Tricycle’s reason for its decision is that it won’t accept money from any government agency involved in the conflict?
As far as Iraq is concerned, how does one objectively distinguish the circumstances there from Gaza today? In both cases, children died. In both cases, that was because of the weapons of a massively superior power fighting in urban spaces. In both cases, there is international disapproval but no formal resolution of anything like the UN Security Council condemning the action. In both cases, the nation in question is accused of war crimes. What is the distinguishing factor?
You can’t say: “ah, well, we think Gaza is worse”. That would be to make exactly the political judgment the Tricycle disavows. They must seek some external, objective means of distinction.
Otherwise, imagining Nick Cohen with a horsehair wig on, they have discriminated against the UKJFF as compared with any other person wanting to screen a UK-funded film. I suppose Philippe Sands might object that “there’s a difference between funding for UKJFF, and film funding” as he did on Newsnight last night. But that can’t be legally relevant, can it? How?
Finally, the makeup of Kilburn can’t help them. A vague and troubling implication that this is justified by the fact that a fair few Muslims live nearby is of no help, since again, that does not distinguish this case from that of objections to the Iraq war (which I think it’s fair to say was opposed by many Muslims – and many others of course, as is the case with “the current conflict”) or of the London Indian Film Festival, India’s conduct in Kashmir again meeting with opposition from many Muslims. Nor in fact is it capable of distinguishing any case in which the Tricycle acts from any other, since the Tricycle always is where it is. Finally, it is of course simply a further admission of direct discrimination against UKJFF, this time based on someone else’s religion.
I wonder if I’m missing something here, and making some huge blunder. Because at the moment, I’m struggling to think how the Tricycle could get round this.
I’m going to preface this quickly by saying that this is from my reading of the act – I’m not a Public Law expert nor do I have access to current relevant case law.
Your second paragraph states that it’s clear that it’s direct discrimination. You then follow by examining the various defences in the face of discrimination. Adam commends you for arguing your point well. It is well-argued from this point. You don’t appear to me to have established that direct discrimination is clear here in the first place per s.13.
s.13(1): ‘A person (A) discriminates against another (B) if, because of a protected characteristic, A treats B less favourably than A treats or would treat others.’
Adam has already outlined the protected characteristics. In this case, by reference to your comment, we’re dealing with Race at s9. As Adam has pointed out, ‘Race’ as defined in s9 includes ‘nationality’.
You have tried to illustrate clarity with a comparison to Dutch funding, and while I agree that it is obviously a discrimination, in that A is indeed treating B or C more or less favourably, I’m not sure that it fulfils the ‘because of a protected characteristic element’. Perhaps I’m being dull-witted, but surely discrimination on the basis of receipt of money from a foreign government is too remote to say that prima facie A has discriminated against B because of nationality?
I appreciate that Adam has made a comment on this through his correspondence with Mark Green – ie that association with Israel as a causal link might be enough to satisfy s.13 + s.9 but I just don’t see it, absent relevant case law or further interpretation. Adam has emphasised that it is *because* of a protected characteristic and the assumption seems to be that Israel itself or its embassies are covered by the protected characteristic. So to clarify, if we accept Mark’s reasoning in combination with Adam’s emphasis, then the link *might* be made if an Israeli businessman, for example, was providing funds and a rejection was made *because he* was an Israeli.
Totally open to further explanation for this – your second paragraph states that it’s clearly discrimination. I’m open to convincing!
I agree with K A Veger. If UKJFF is being disciminated on nationality grounds, it has to be UKJFF’s nationality that is the disciminatory factor, not the nationality of someone who gives UKJFF money.
Actually it does not have to be UKJFF’s nationality that is the discriminatory factor. The concept of ‘Associative Discrimination’ does not often come up but is an established concept in discrimination law and even mentioned in the official notes to the Equality Act http://www.legislation.gov.uk/ukpga/2010/15/notes/division/3/2/2/1.
The oft cited example is of a mother who cares for a disabled child and is treated less favourably because of that association. She is discriminated against even though she is not disabled (Coleman v Attridge Law in the ECJ and the EAT).
So one of the key questions is to find a comparator – here that might be the Dutch Embassy. Is the Tricycle treating UKJFF differently because of its association with an Embassy that is Israeli, than it does with one that is Dutch? It would seem it is.
This would likely be enough, in my view, to shift the burden to the Tricycle to explain its reasoning. (In direct discrimination cases, the Claimant must first make a prima facie case and if it can do that, the burden shifts to the other party to provide an explanation).
The argument may be made for the Tricycle that it is not because it is an Israeli embassy per se, but because it is an embassy of a country at war. This may be problematic for the Tricycle given its dealings with funding from other countries’ embassies. It would likely have to show that it is not treating Israel differently to how it would treat other countries. Given (as I understand it) this is the first time such a threat has been made, this also may be a problematic defence.
This would not be the only argument open to the Tricycle, but in any event, there is certainly an arguable case of direct discrimination.
Thanks, Mark. I wasn’t aware of the “associative” aspect. But your point raises an interesting question.
If the association is “taking money from the Israeli embassy”, UKJFF has done that already, in previous years. And we know that the Tricycle doesn’t have a problem with that. The theatre’s objection is, very specifically, to taking money from the embassy this year, which the UKJFF is being invited to refrain from doing. So it’s very much a precondition that the Tricycle is imposing, which seems to be precisely what S19 of the Act address under the heading of “indirect discrimination”, when it refers to “a provision, criterion or practice”.
So my question is this: Do the courts extend the concept of associative discrimination under s13 to the notion of a conditional association? If not, we are back to s19 and “indirect discrimination”, which has problems – see my comments below (7 August, 5:41 pm).
Hi Simon, there is no reason why a precondition can’t be direct discrimination. So for example if an employee is told ‘don’t continue having lunch with that black woman otherwise it will hurt your career’, this is likely discrimination in of itself, even if the employee decides to follow the instruction. It is all about treating someone less favourably because of race/sexuality/disability etc. Less favourable treatment has a wide interpretation.
Indirect discrimination occurs when someone is treated less favourably, not ostensibly because of their race, but because of something which is more likely to affect a particular ethnic group. So to give a simple example, Jews are more likely to be associated with Israeli focussed activities than other ethnic groups. Therefore, a practice which bans Israeli dancing classes could potentially be indirectly discriminatory towards Jews.
In this case, the fact that the Tricycle has allowed the UKJFF its space before does not stop it being prima facie direct discrimination, just as the fact that an employee has been promoted five times does not mean that his failure to be promoted the sixth time is not discrimination because he is Chinese.
What it does mean however is that the Tricycle has some evidence that points to there being another reason (rather than the Embassy’s nationality) for the unfavourable treatment, as it can argue it has had no problem with the Embassy’s nationality in the past. However, the burden is on the Tricycle to show what this non-discriminatory reason was.
Indirect discrimination does not have the associative aspect in the same way as direct discrimination but gets there another way if it can be proved that Jews are more likely to associate with the Israeli embassy than other ethnic groups. However, to go back to something you mention above, the provision, criterion or practice does not itself have to be discriminatory, it is the fact that it affects Jews more. So, to give a frivolous example, a ban on eating chicken soup at work will arguably affect Jews more than other ethnic groups, but the ban itself is not discriminatory.
In this case, if the provision is not to accept funding from either side of this conflict, then it is of course more likely to affect Jewish organisations just as it is more likely to affect Palestinian organisations. That arguably is enough to make it provisionally indirectly discriminatory. This is subject however to the statutory defence.
This defence is where an indirect discrimination case may well fall down. If the Tricycle could show their decision was a ‘proportionate means of achieving a legitimate aim’ then there is no indirect discrimination. Here, the ‘legitimate aim’ would probably be the Tricycle wishing to maintain political neutrality. I could imagine a Court accepting that argument (despite all the holes in it pointed out elsewhere on this page) and therefore dismissing the claim.
This is why it is always better to go for direct discrimination if possible!
Hi Mark,
Thanks for the reply. I’ve read through the official notes and it brings me back to my comment. 59 states ‘This definition is broad enough to cover cases where the less favourable treatment is because of the victim’s association with someone who has that characteristic’. The emphasis here for me is on ‘someone’. The Israeli embassy would not immediately appear to be ‘someone’. The examples the Act gives below it do not clarify this with regards to an association with an embassy.
What I’m saying is that if it were the case that the Tricycle rejected funding because they thought that the UKJFF (or whoever is the contracting party) was receiving money from an Israeli and rejected it on the basis of the association with an Israeli, then I think your conclusion stands (as exemplified in the disability example). In this case, however, it’s not that any given person involved is an Israeli, it’s because the state funding is from Israel. It’s not discriminating against a person on basis of nationality, it’s discriminating on the basis of receipt of funds from a state.
To make that point clearer by analogy, let’s rewind to the heady days of BSE and CJD. The French government has banned British beef. Coincidentally a British beef farmer is negotiating a contract for use of his land for a French outdoor film festival, part-sponsored by the French government, that’s been held on his land every year for 15 years. He asks the organisers to look for other funding or he won’t be able to host the festival. They withdraw.
Now, I’m not looking at any defences, just whether or not that would be direct discrimination. It’s clearly discriminatory, no argument. Is it direct discrimination per the Act? Well it doesn’t seem so to me. He’s rejecting (or asking them for a change) on the basis of state funding, not on the basis of anyone’s particular nationality. If the funding, however, was from, let’s say, Charlotte Gainsbourg and the event was rejected on the basis of her being French, that would clearly be direct discrimination.
In a nutshell – is the national status of a state institution the same thing as the national identity of a person for the purpose of the Act? It’s not illustrated by the notes or by the case you’re citing so if you have anything else to hand, that would be great to read.
As a mere layman, can I answer a simple question?
Does anybody know of a single instance of the Tricycle accepting an event which was sponsored directly by ANY foreign Embassy?
In ‘the court of public opinion’, discrimination involves behaving differently because of Race, Religion, Ethnicity etc.,
I accept this may be a weakness in my argument: we’d need to look at the case law to see if an organisation of office, like an embassy, has a “nationality”. But if it can, then the UKJFF is clearly being treated less favourably than other film festival organisers because one of its sponsors is the Israeli embassy, not the Dutch embassy or the Indian High Commission. It’s the nationality of the embassy that counts here. That’s why I say it’s clearly direct discrimination on the grounds of nationality.
Isn’t their objection that the funder is a particular legal person, who happens to be the government of Israel? If, immediately after they had offered to pay themselves, an Israeli had happened to drop by and offer the £1,400, they would have been glad of being relieved of the £1,400 cost, not to reject their offer on the basis of the nationality of the donor.
This may sound like a really stupid question but does the Israeli Embassy have Israeli nationality?
Adam’s argument seems to be that “relevant protected characteristic of the festival” is funding from an Israeli national. Firstly I wonder if it’s a stretch that “funding from” is sufficient connection to make out the necessary connection, it’s surely much more remote than say having an Israeli wife but perhaps there’s case law here.
So if that is enough of a connection the question is whether the Israeli embassy has a protected characteristic under the law. Presumably if it does then do all other corporate persons, in which case presumably boycotting anybody because of connections with a company based overseas could be potentially liable (e.g. the Danish bacon boycotts)?
Finally I wonder if the festival has standing as a person? Could this open up corporate litigation around “ethical” investment funds who won’t invest in certain regions/countries?
What is missing is the elephant in the room. It is racial discrimination, an anti Jew issue. The Jew is now unacceptable. Hitler racism dormant has be resurrected. The silence of this from the intellectual is clearly evident. Europe are in a frenzy. Why no such frenzy or demonstration for the Yazidis or Christian being murdered in thousands? Children being cut in half and buried alive? Why does no one recognise the elephant in the room of anti semitism stirred again?
Thank you very much for a really interesting blog – as a recently retired JP I accept the legal points made but my reading was disturbed by the author’s inconsistency on whether the Tricycle is a single entity or not. Surely ‘Has the Tricycle…’?
The Tricycle are a registered charity . They may well have breached the charity commission rules relating to the said charity maintaing an apolitical status at all times . I’m sure the commission will be made aware of this in due course .
No, this is not correct. A charity cannot have a political purpose but it can engage in occasional political activity and campaigning.
In the case of Redfern, the point seemed to me to be a simple one (or should have been). Redfern had not broken any law by joining the party he had, and all evidence was that he had performed his job satisfactorily. Therefore, there was no reason to remove him – unless he started to do his job badly, for whatever reason (discriminating against passengers, or endangering them through bad driving for eg).
Not sure there’s much relevance here unless there was a thought that the JFF would start to broadcast Israeli Gvt propaganda (which was never suggested) as a quid pro quo for the Israeli gvt funding. But even if that was the case, I wonder whether the law should be involved in any way – prima facie at least, it should be up to the theatre to host whom it chooses and up to the JFF whom it gets funding for. If either doesn’t want to contract with the other then that’s up to them. If the trustees of either are exceeding their remit in making the decision, that’s another story, but it’s a matter of private law (the duties of the trustees) or charity law perhaps if the charitable status of an organisation was threatened by it turning into a political campaigner (for any cause; and this is a bit of an issue in charity law as increasingly some of the large charities like to wade into the political arena – but that’s another story).
On the merits of the case, I agree with Nick Cohen’s article, and as the HL would have said, have nothing to add.
Load of old codswallop – I was at University with Indhu and she’s a really nice girl. If the UK JFF weren’t taking the Israeli sheckel when 400 Palestinian kids were being murdered none of this would have happened.
The UK JFF has been funded by the Israeli Embassy for the last 8 years so their receiving of funds isn’t an endorsement of anything to do with the current conflict. Buy maybe you are trying to make a broader statement?
It’s Israel’s bad kharma catching up.
Your answer is despicable., full of hate and anti Semitic.
I am not an Anti-Semite and regularly donate to Jewish Charities – however, I do not like to see a friend from Universities decision kicked around for the pleasure of Human Rights lawyers.
What is codswallop? Did you even read the article? The author says nothing about the rights or wrongs of the situation and he explicitly disclaims anti-semitism. This is a legal analysis of the effect of the Equalities Act in boycotts from an experienced barrister, you’ll need to do better than “she’s a nice girl” to dismantle his legal arguments!
I don’t see it as an issue for The Equalities Act – it’s political act about funding for the arts and on this occasion the UKJFF has been found out.
Thanks for taking a reasoned look at the Tricycle’s decision – I wasn’t satisfied by Philippe Sands’ explanations on Newsnight or by James O’Brien’s scrutiny and I can’t make sense of their political neutrality defence, particularly (as you say) they could have done this using other less inflammatory means. Sands’ reference to the multi-cultural community of Kilburn was especially irritating, was that to say that they wouldn’t have taken this action elsewhere in the country?
This is a really interesting laying out of the law. But.
1) I don’t think reprisals against the theatre were the issue but instead deeper questions of conscience relating to disproportionate military action by both Hamas and IDF, and the theatre being unable to countenance that unanswered.
2) deep questions of conscience have rightly led Hale LJ to doubt the correctness of the rulings in the gay guesthouse line of rulings, not least because they have the draconian effect of precluding the right to omit to act, where the omission is an expression of what the agent knows are their deeply held convictions concerning morality itself. A fortiori, a refusal to associate with groups who are in the act of perpetrating what seem war crimes seems even more supportible.
3)there is afaik no moral equivalency between hamas’s/the IDF’s seemingly disproportionate actions and kashmir /Iraq. However if there were, active prosecution of certain forms (and the form matters) ethically abhorrent war acts may be distinguished from past acts, as may be seeming impunity distinguished from situations where accountability has been more brought to bear, be that through political or legal means.
4)even though hamas is not having a film festival it is in this case wrong to apply without great care, the indirect discrimination ‘in practice’ test. what is being objected to is a certain form of disregard for civilian life, I believe; that being a moral imperative pressing enough to justify our looking to begin with at the specific subjective content of the mind of the party in question, including their horror at *both* sides. Sumption’s proportionality test should be applied to that.
Those are all valid points but the Tricycle don’t claim they were taking a stance on Gaza – rather that they didn’t want to be seen as taking one side or the other. So conscience issues are not necessarily as central
Really? I can see how your interpretation is available but didn’t think they were so unambiguous in their claims as to preclude conscience as their main motivator (despite what Sands says).
I agree. They have publicly denied having or wanting to take any stance, which surely excludes any argument that you’re taking a conscientious stance.
Regrettably, Jon ,you are wrong at your first hurdle at point 1. I can tell you first-hand it was absolutely the issue of potential backlash from having the logo on promotion materials in the local community. They were absolutely not taking a position on the rights or wrongs of Israel or Hamas in the Gaza conflict, and this is a very important point.
An interesting and well-argued post. I find the argument from inconsistency troubling, though – it’s surely legitimate to take politically-motivated action for the first time.
Excellent article and a well laid out rebutle. I think the whole thing has more to do with external forces threatening action or demonstrations if this event took place. It would be good if the theatre could come clean with the real reasoning and state whether or not they have received warnings from BDS et al
A persuasive post.
Just a thought (and I am not a charity law expert): have the trustees of the cinema also had regard to an irrelevant consideration? (Cf. the case of ex parte Fewings in public law).
I know that the discretion of trustees, like that of public law decision-makers, is not absolute; so I wonder if they have made a decision here which is not open to them. (I would have no idea what the remedy for that would be though.)
I’m not sure – I’m no charity law expert but I imagine the discretion of trustees is wide particularly where the charitable purposes are wide (as they are here). I think they made the wrong call but I don’t think they acted irrationally or improperly, even broadly speaking.
Adam ! I reverently follow your blog ! Being a law student I have and do highly benefit from your posts ! I was thinking in this regard , in case of the above; is it not the fundamental question , whether the state of Israel as a donor and sponsor will be required to bring in any discrimination if so, and prove that the issues upon which the bar of objection that was applied by Tricycle Theatre upon the state of israel’s funding was illegitimate ( which will not be attempted by Israel of course ) ! Secondly , the Tricycle theatre did not say that they oppose Jewish people ! Only the funding from the Zionist State which is currently widely under criticism due to its own discriminatory civil and military policy. In so far Tricycle has not even stated that a Israeli national is barred from contributing in funding at all but simply the State of Israel; as a government levying taxes on the zionist state citizens and liable to deliver duty of care to all its citizens ! In my opinion the State of Israel even if it is based on Talmudic laws and has its acts in war or peace by way of its law passed legally in its parliament is not representative of entire Jewish population and is not above international treaty nor beyond the ambit of war crime and the way any Jewish person even with compassion for all nations and equality for Palestinians as well , is reflective of the interpretation of the Jewish theology, and thereby is open to challenge ! I just do not want to think of a day when a British organisation will be curbed to stand up for the credulous whosoever they may be regardless of race and religion ! That is our sovereign eligibility contrary to the popular emancipations of eurosceptics or nationalists !