UKLFI: Supporting Israel with legal skills

Lawyers challenge “unlawful interference” by UN Rapporteur in UK Pension Schemes

A Special Rapporteur of the UN Human Rights Council (UNHRC) is unlawfully interfering in the management of UK Local Government Pension Scheme (LGPS) Funds, according to the association UK Lawyers for Israel (UKLFI).

The LGPS is one of the largest defined benefit pension schemes in the world, managing the pensions of over 6.2 million members for 16,300 employers.

Michael Lynk, the UNHRC’s Special Rapporteur “on the situation of human rights in the Palestinian Territory occupied since 1967” wrote in November 2021 to the LGPS Funds, urging them to divest from all companies on UNHRC’s database of companies allegedly carrying out certain activities in the West Bank and East Jerusalem “if the company cannot give a clear assurance that it has removed itself entirely from the settlement economy”.

 Mr Lynk’s letter contained extensive allegations against Israel and against companies which he said are “heavily invested in the thriving settlement economy”. However, he did not give Israeli representatives any opportunity to respond to the allegations before he sent it and did not even inform them that he had sent it.

Israeli representatives only found out about the letter after the Pensions Director of Wirral Council drew it to the attention of UKLFI on 14 February 2022. UKLFI then circulated a link to a copy of it to interested parties.

By this date the Local Authority Pension Funds Forum (LAPFF, an association of many of the LGPS funds) and the LGPS Advisory Board (LGPSAB, a statutory body providing advice relating to the LGPS) had held a meeting with Mr Lynk on 25 January 2022 to discuss his letter. It appears that they did not appreciate its problematic nature. A news item on their website says “The discussion was productive and it was agreed to it follow up with another call in a month or so”. It is not clear whether there has been further correspondence or a further meeting since then.

UKLFI has now sent detailed letters to the LGPSAB, the LAPFF and their advisers PIRC, claiming that Mr Lynk’s November letter and any further intervention on his part with the LGPS as a UNHRC Special Rapporteur are illegal. The letters demand that these bodies do not engage further with Mr Lynk except in his capacity as a private Canadian citizen, and that if they do engage with him in that capacity, they will take into account the unreliability of his allegations.

UKLFI’s letters acknowledge that the issue of divestment by LGPS Funds may be addressed soon by legislation, including the amendment recently tabled by Robert Jenrick MP, but comment that it is still important to mitigate any improper influence that Mr Lynk’s letter may have had on the LGPS.

The letters point out that Mr Lynk’s mandate from the UNHRC is to investigate Israel’s (supposed) violations of international law and report to the UNHRC. It does not include reporting to local authorities or pension funds in individual states, still less making polemical interventions in their operations. Nor does it include investigating alleged violations by businesses.

In addition, the letters note that the UNHRC’s Code of Conduct for Special Rapporteurs requires them to ensure that the concerned government authorities are the first recipients of their conclusions and recommendations concerning this State, that they are given adequate time to respond, and to indicate fairly the responses given by the concerned State. According to UKLFI, none of this was done.

UKLFI’s Chief Executive, Jonathan Turner, commented: “The LAPFF and LGPSAB should not have regarded Mr Lynk’s letter as having any official authority. They should have treated it as the comments of a foreign private citizen.”

UKLFI’s letters further criticise the appointment and conduct of Mr Lynk as not complying with requirements of equality of treatment of UN member states, fairness, impartiality, objectivity and non-selectivity, citing matters set out in posts by NGO Monitor and UNWatch, as well as a further detailed memorandum by NGO Monitor.

UKLFI notes that Mr Lynk’s appointment was highly politicised and resulted from the automatic majority enjoyed by the members of the Organisation of Islamic Cooperation and their developing country allies.

UKLFI’s letters go on to address the accuracy or otherwise of many of the statements in Mr Lynk’s letter. Amongst other matters:

  • They dispute his claim that there is a separate “settlement economy”

  • They note that the UK Supreme Court and a French appeal court have held that it is not inherently illegal for a business to operate in or near settlements in an occupied territory, and that numerous major businesses do so in occupied territories around the world

  • They point out that businesses in or near Israeli settlements in the West Bank and East Jerusalem employ around 30,000 Palestinians at average salaries more than three times average salaries paid by Palestinian employers. As well as providing the livelihoods of many Palestinians, the employment of Palestinians alongside Israelis contributes to reducing conflict and promoting understanding.

  • They comment that the UNHRC database did not purport to constitute any legal analysis, was not based on any serious factual analysis, and did not take into account benefits for Palestinians of the listed businesses

Jonathan Turner, chief executive of UKLFI said: “Mr Lynk’s letter contains serious misrepresentations. Any investment decision influenced by his intervention, supposedly in his capacity as a Rapporteur of the UNHRC, will be challengeable on the basis of error of law, taking into account irrelevant considerations, failure to act with due skill, care and diligence, and breach of fiduciary duties.

UKLFI originally found out about Mr Lynk’s letter when Wirral Councils Pension’s Director responded to a letter from UKLFI on 14 February 2022 regarding a proposal that the Merseyside Pension Scheme, which is administered by Wirral Council, should divest from companies on the UNHRC database.

UKLFI sent a further letter to the Wirral pensions committee on 21 February explaining that Mr Lynk’s letter did not comply with the terms of his mandate, the UNHRC’s Code of Conduct and other UN documents, and that it contained serious misrepresentations. The Institute for NGO Research (NGO Monitor) also sent a detailed memorandum on the defects of the UNHRC database and Mr Lynk’s analysis. Many Merseyside residents, alerted by Israel Britain Alliance, wrote to members of the pensions committee opposing the discriminatory targeting of Israel.

As previously reported, the Wirral pensions committee rejected the recommendation to progress towards divesting from companies on the UNHRC database.

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