A proposed resolution of Belfast City Council to support BDS against Israel, which had been scheduled for debate on 1st July 2019, has now been withdrawn. This follows submissions made by UKLFI to Suzanne Wylie, Chief Executive of Belfast City Council, pointing out a string of reasons why such a resolution would not be legal.
John Walsh, City Solicitor for Belfast City Council wrote to UKLFI confirming the withdrawal: “Whilst I do not accept the bulk of assertions made in your letter to the effect that the Council is not entitled to take a policy position, I do accept it is not entitled to adopt a position which would affect its ability to enter into contractual relations with Israeli Nationals or commercial organisations of Israeli origin or otherwise associated with Israel.”
UK Lawyers for Israel is an association of lawyers who seek to ensure the proper application of laws in matters relating to Israel.
Although UKLFI had not seen the text of the proposed resolution, it aimed to draw the attention of Belfast council to its possible illegality, so that the appropriate Council officers could consider the position in advance of the meeting and advise Councillors accordingly.
UKLFI’s letter to Belfast Council included the following points:
A boycott by the Council of Israeli products or services would breach EU and WTO public procurement rules which require contracting authorities to base the award of public contracts on the most economically advantageous tender. As UK government guidance states, “Public procurement should never be used as a tool to boycott tenders from suppliers based in other countries, except where formal legal sanctions, embargoes and restrictions have been put in place by the UK Government.”
A boycott by the Council of Israeli products or services would also infringe Article 19 of The Local Government (Miscellaneous Provisions) (Northern Ireland) Order 1992, which requires councils to select suppliers without reference to non-commercial matters.
A boycott may also breach section 75(2) of the Northern Ireland Act 1998, which requires a public authority to have regard to the desirability of promoting good relations between persons of different religious belief, political opinion or racial group. UKLFI pointed out that BDS campaigns against Israel have been demonstrated to promote antisemitism.
Implementation of the motion may involve discrimination on the ground of religious belief or political opinion. This would breach section 76(1) of the Northern Ireland Act 1998 since it is unlawful to discriminate against a nation even if criticisms of that country’s policy are justified. There is a further serious element of discrimination, indeed racism, in boycotting Israel without boycotting the many other countries whose policies can be criticised with far more justification.
Pension fund trustees have a fiduciary duty to invest in the best interests of the members and beneficiaries of the fund and to invest prudently. Divestment of or refusal to make a financially worthwhile investment on the grounds that a company or group operates in Israel is likely to be unlawful.