UKLFI: Supporting Israel with legal skills

BDS Bill Falls as Irish Parliament is Dissolved

The BDS Bill introduced into the Irish Parliament in January 2018 has now lapsed following the dissolution of the Irish Parliament on 14 January 2020.

A general election of members of the Dail (lower House) will be held on 8 February 2020, to be followed by elections and appointments to the Senate (Upper House).

This is the end of the road for the BDS Bill introduced by Senator Frances Black that would have made it a criminal offence to supply goods or services produced wholly or partly by Israelis in East Jerusalem, Judea or Samaria. It remains to be seen whether the Bill will be introduced in the new Parliament, but for now it is dead.

The Bill was introduced in the Irish Senate on 24 January 2018. It was drafted by the NGO, Global Legal Action Network on behalf of a coalition of other NGOs including Sadaka, Trocaire, Christian Aid Ireland and the Irish Congress of Trade Unions.

These NGOs and others appear to have put considerable resources behind it, including an extensive lobbying campaign. Palestinians were brought over to Ireland to describe the alleged evils of settlements. Roger Waters gave a gig to promote the Bill. A letter from Israeli luminaries expressing support for the Bill was published in the Irish Times on the day of its first debate in the Senate. Legal opinions were commissioned. Public meetings were arranged up and down the country.

Prompt action by Irish4Israel, with the assistance of UK Lawyers for Israel (UKLFI), pointed out to Irish politicians that the Bill would contravene EU law, under which the EU has exclusive competence for foreign trade policy. This remained a central feature throughout the ensuing debates in the Irish parliament and media.

The Lawfare Project’s Spanish Counsel, Ignacio Wenley, followed up with a submission to the EU Commission that the Bill was illegal.

The Irish government, advised by its Attorney General, and the EU Commission agreed that it would contravene EU law. The resulting exposure of the Irish State to damages and legal costs, as well as the costs of enforcing the legislation, meant that the Bill had implications for public expenditure. Under the Irish Constitution the Dail cannot pass a Bill for the appropriation of public moneys without a written message of support (called a “money message”) signed by the Prime Minister or Deputy Prime Minister.

The Irish government did not have a majority in either House of the Irish Parliament and the opposition parties backed the Bill, so it passed in every vote. But the government made it clear that a money message would not be provided, since the Bill was contrary to EU law, and so it could not pass the final stages of the Parliamentary process.

The Lawfare Project (TLP) and the Foundation for Defense of Democracies (FDD) also pointed out that major US companies with subsidiaries in Ireland would be exposed to serious liabilities and loss of tax benefits under US law if they complied with the Bill. This provided an additional reason why the Irish government rejected the Bill, as well as reinforcing the objection under EU law, since it exacerbated Ireland’s potential liabilities for the breaches of EU law if the Bill were enacted.

Supporters of the Bill deployed legal opinions arguing that the Bill complied with EU law, but UKLFI showed that these opinions were based on incorrect factual assumptions and erroneous legal analysis. As well as providing detailed memoranda on the position under EU law, UKLFI assisted Ireland Israel Alliance to make an extensive submission to the Select Committee of the Irish Parliament that scrutinised the Bill, backed by
• papers by Professor Eugene Kontorovich and the Kohelet Policy Forum on the law and practice of dealings with businesses in disputed territories, demonstrating the discriminatory character of the Bill in targeting Israeli businesses in the West Bank
• memoranda by TLP on the liabilities and loss of tax benefits under US laws if companies comply with the boycott imposed by the Bill
• reports of the litigation and other measures taken against Airbnb under US State laws when it boycotted services provided by Israelis in East Jerusalem and the West Bank
• case-law in the UK and France confirming that the production of goods and services by Israelis in the West Bank is not in itself contrary to international law
• a video produced by Ireland Israel Alliance and the International Legal Forum (ILF) showing how Irish pilgrims in Jerusalem would be liable to imprisonment under the Bill
• the German Parliamentary resolution opposing BDS
• evidence of the benefits of Israeli businesses in Samaria, Judea and East Jerusalem to the tens of thousands of Palestinians employed and hundreds of thousands of Palestinians depending on them
• a collection of essays by Palestinians and Israelis, edited by Dan Diker and published by the Jerusalem Center for Public Affairs under the title “Defeating Denormalization”, showing how Israeli businesses in the West Bank promote peace and reconciliation through the good relations created between Israelis and Palestinians working together

Jonathan Turner, Chief Executive of UKLFI, said: “The legal objections to this BDS Bill were decisive in preventing its enactment. Two years of work on this have delivered a significant achievement for our legal network and a major disappointment to our opponents.”