UK Lawyers for Israel (UKLFI) have written to the Principal of Aberdeen University regarding its response to an anti-Israel student encampment. According to UKLFI’s letter, an “update” circulated by the University was itself unlawful and contemplates further unlawful conduct that should be reported to regulators.
ICJ Provisional Measures Order
The University’s update states categorically: “The University stands with the International Court of Justice in demanding an immediate cessation of military offensive in Rafah”.
UKLFI’s letter points out that this is incorrect since the ICJ did not demand an immediate cessation of Israel’s military operation in Rafah. UKLFI contends that the circulation of this incorrect statement is detrimental to Israeli, Jewish and Zionist staff students, as it promotes a hostile atmosphere for them at the University, and constitutes unlawful discrimination and harassment in breach of the Equality Act.
UKLFI has asked the University to withdraw this incorrect statement and to inform all recipients of its “update” that the University has withdrawn it.
Public Procurement Regulations
In view of the comments on procurement in the University’s “update”, UKLFI’s letter reminds the University of its obligations under Scottish Public Procurement Regulations that implemented the EU Directive on public procurement and remain in force and draws attention to relevant case-law. UKLFI asks the University to confirm that it intends to comply with the Procurement Regulations.
Investment
UKLFI’s letter notes that decisions on investment or divestment of the University’s funds, including pension funds, are exercises of fiduciary powers. It is generally accepted that, in line with paragraphs 6.33 et seq of the Report of the Law Commission, non-financial factors may only be taken into account in making such decisions if two conditions are both met:
(1) there is good reason to think that beneficiaries and stakeholders would share the concern; and
(2) the decision does not involve a risk of significant financial detriment to the fund.
Regarding the first condition, the Law Commission Report noted that “in cases where the issue is clearly controversial, the courts may well expect trustees to focus on financial factors rather than becoming embroiled in disagreements between the members.”
UKLFI points out that a divestment or exclusion decision in breach of fiduciary duty which adversely affects pension funds could result in claims for compensation by beneficiaries, possibly including class actions.
UKLFI asks the University to confirm it will comply with the conditions for properly taking into account non-financial factors in investment decisions.
Collaboration with Israeli academic institutions
The University’s email states: “We will not ….restrict the ability of our colleagues to progress their academic endeavours. We can, however, confirm that there are no active Institution level agreements with universities in Israel and no intention to enter into any new agreements.”
UKLFI explains in its letter : “Even if staff and students are not restricted in their individual endeavours, joint research projects are more likely to proceed successfully with institutional support. Opportunities for individuals at another university are also likely to be more readily available where there is an institutional relationship.”
Excluding Israeli institutions from collaboration would therefore discriminate in practice against Israeli, Jewish and/or Zionist staff and students contrary to the Equality Act.
UKLFI has asked the University to confirm that it does not exclude entering into institution level agreements with universities in Israel and will evaluate any proposal for an agreement with an Israeli university on its objective merits.
Public Sector Equality Duty
UKLFI’s letter refers to the Public Sector Equality Duty (PSED) in section 149 of the Equality Act, which requires the University to have due regard to the need to eliminate discrimination, harassment and victimisation and to foster good relations between persons of different ethnicity, nationality, religion and philosophical belief.
Additional requirements to report progress and outcomes implementing the PSED and to assess the impact of new policies and practices against the specified needs are imposed by Scottish regulations.
UKLFI’s letter then draws attention to research at US universities showing a strong association between BDS activity and antisemitic activity and notes that the seriousness of this consideration is heightened by the reference to “genocidal acts” in the University’s “update”.
UKLFI asks the University to state what consideration it has given to the PSED in its response to the encampment and to confirm that, going forward, it will have regard to the needs specified in section 149 of the Equality Act and will address these matters fully in reports and assessments in accordance with the Scottish regulations.
Scottish Code of Good Higher Education Governance
UKLFI’s letter also reminds the University that it will be expected to report on its compliance with the Scottish Code of Good Higher Education Governance. According to UKLFI, actions taken or contemplated by the University may not comply with requirements of this Code.
Charity law
Finally, UKLFI’s letter notes that the University, as an educational charity, must not participate in political campaigns outside its charitable purposes, which are “The advancement of education; The advancement of health; The advancement of civic responsibility and community development; The advancement of arts, heritage, culture or science”.
UKLFI submits that a political campaign targeting Israel is outside these objects, and that endorsing the political campaign of the “student encampment” would put the University in breach of charity law.
Jonathan Turner, chief executive of UKLFI commented: “We consider that conceding to the demands of racist students in order to alleviate their trespass on University property is imprudent and will serve to encourage further unwarranted demands.”