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International Law and the State of Israel: Legitimacy, Responsibility and Exceptionalism

International Law and the State of Israel

International Law and the State of Israel – Public Statement

At the beginning of April 2015 the University of Southampton withdrew permission for the conference ‘International Law and the State of Israel’ to be held on its premises, due to concerns that the safety of staff, students and visitors could not be guaranteed. This led the organisers to cancel the conference on 17-19 April 2015.

The conference organisers exercised their legal right to challenge this decision in the High Court, each ruling is summarised below.

The final judicial review by Mrs Justice Whipple on 6 April 2016 upheld the decision by the University of Southampton and led her to comment that, “From all that I have seen in this case, I believe that freedom of expression and freedom of assembly are alive and well at Southampton University.”

Mrs Justice Andrews’ ruling - 8 April 2015

At the beginning of April 2015 the University of Southampton withdrew permission for the conference ‘International Law and the State of Israel’ to be held on its premises, due to concerns that the safety of staff, students and visitors could not be guaranteed. The organisers cancelled the conference on 17-19 April 2015.

The organisers of the conference Professors Oren Ben-Dor and Suleiman Sharkh, exercised their right to make a claim to the High Court. The initial claim, to bring a judicial review and for a protective costs order was refused by the Honourable Mrs Justice Andrews DBE on 8 April 2015.

She observed that, “the Defendant (University of Southampton) made what appears on the face of it to be a perfectly rational and lawful decision on appeal against its refusal of permission for a conference to be held on its premises on 17-19 April 2015 because of concerns about security.”

She went on to say, “it is nonsense to suggest that the subject matter relates to matters of profound constitutional importance. The Claimants as the organisers, plainly have a personal interest in the outcome of the claim, and it would not be fair to an academic institution to make an order requiring it to bear its own legal costs even if it won.”

Judge Alice Robinson’s ruling - 14 April 2015

The Claimants (Professors Oren Ben-Dor and Suleiman Sharkh) were given leave to renew the application for permission to an oral hearing at the High Court, this took place on Tuesday 14 April 2015. After several hours of representations, Her Honour Judge Robinson refused permission for a judicial review and a protective costs order, and awarded costs to the University.

There were several key allegations and claims that were made in Court that have also made their way into various correspondence, that need addressing:

The Claimants made a preliminary point alleging that the University had breached its duty of candour by not producing police reports. The judge held that there was no evidence of a breach of candour on the part of the University. The University had made it clear from the outset what it had based its decision on, in the letters from the Chief Operating Officer (COO) and the Vice-Chancellor to the organisers.

It was also alleged that there was a paucity of evidence of a security risk. The judge found that the starting point was the change in circumstances surrounding the conference which she saw as:

i) the changes to the anticipated nature of the conference, the conference largely represented one point of view and did not achieve the original proposed balance;

ii) the full list of speakers had not been provided until early March and included controversial speakers;

iii) the high risk of large demonstrations.

The conference organisers response on proposed measures, i.e. that the police were capable of managing the event, did not address the University’s responsibilities for elements of public order and safety which fall within the University’s precincts and for which the University is liable.

The University had considered the advice from its very experienced Head of Security and Head of Safety & Occupational Health and information from the police. It had given consideration to whether the concerns could be overcome in other ways but the conclusion was that they could not put in place measures to ensure safety and security.

In her summation Judge Robinson noted, that there was not a shred of evidence to suggest that the University’s decision had been influenced by lobbying or correspondence from other organisations, and that the decision had been taken in good faith with a conscientious application of the duty to protect free speech.

The judge understood that the University’s decision had been taken reluctantly, but was quite satisfied that there are no arguable grounds to challenge it.

Right Honourable Lady Justice Arden ruling - 27 October 2015

On 27 October 2015 the Rt. Hon. Lady Justice Arden, on reading appellants’ notice and accompanying documents but without an oral hearing granted to the appellants an extension of time for making their application and permission to apply for judicial review on the basis that they had shown sufficient grounds for an extension of time and that their claim is sufficiently arguable to justify the grant of permission.

She considered that it is plainly arguable that the duty to protect freedom of speech means that it is not enough to act on a threat of violent protest unless it is significant and unavoidable and that therefore the court must scrutinise for itself whether the reaction to the threat was justified in the light of all of the circumstances. She directed that the application be heard in the administrative court in order that evidence can be filed. The matter will be heard on 6 April 2016.

Mrs Justice Whipple’s ruling - 6 April 2016

Mrs Justice Whipple’s ruling in the High Court upheld the University’s decisions regarding the conference ‘International Law and the State of Israel’ and, in particular, her finding that the decisions made by the University were motivated by well-founded concerns for the safety of people and property, and exemplify good and responsible decision-making by the University’s officers.

Justice Whipple found that: “Any responsible organisation would have wished to develop a coherent plan to ensure a safe event, and would have refused permission to hold the event until that plan was to hand.”

In relation to the proposed re-run of the conference, the judge could see no reason why, where funds are available, the conference should not fund its own security costs. Nor could she see any reason why this would amount to any form of interference with the right of free speech. She added that she saw no evidence that the conference budget could not be recast to cover security costs.

The University of Southampton has an excellent track record of supporting free speech and remains committed to its legal obligation to ensure that freedom of speech within the law is secured for all of its staff, students and visiting speakers.

This is endorsed and supported by Mrs Justice Whipple’s comment that: “From all that I have seen in this case, I believe that freedom of expression and freedom of assembly are alive and well at Southampton University.”

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