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.
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” . 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.
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.
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 ) 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.