On 9 January, the Palestine Solidarity Campaign announced it had won the right to go to the Supreme Court.
We will be appealing the decision of the Court of Appeal that guidance requiring that the Local Government Pension Scheme (LGPS) abstains from certain ethical divestments is lawful.
While it might sound of limited relevance, this decision strikes at the heart of questions relating to the powers of the executive and local democracy, and is part of a wider attempt to undermine the global boycott, divestment and sanctions movement.
The guidance issued by the then Department for Communities and Local Government in 2016 prohibited the LGPS from disinvesting against foreign nations and UK defence industries. This was despite a public consultation in which 98% of respondents thought this was the wrong thing to do, and a wider public outcry about the interference in local democracy.
The key target of these new rules was made clear in the government press release about the decision. This was the government acting to place a ban on boycotting Israel and even those companies working in the Occupied Palestinian Territories.
Even though pensions’ divestment is just one strand in the campaign for justice in Palestine, the government’s action in introducing the guidance must be viewed within the wider context of legal attacks on the boycott, divestment and sanctions movement.
In April 2017, a leaked joint report from the Reut Institute, an Israeli think tank, and the US-based Anti-Defamation League boasted of the success since 2010 in establishing a global pro-Israel network to suppress boycott, divestment and sanctions activity, and about the use of laws against the movement as a key tactic.
Governments across the world have taken action in recent years to legislate against and, in some cases, even criminalise this kind of advocacy.
It has been nearly 15 years since representatives of Palestinian civil society called for global boycott, divestment and sanctions against Israel until it recognises the fundamental rights of the Palestinian people. The Palestine Solidarity Campaign believes everyone should have the right to pursue this nonviolent form of campaigning, including local government pension scheme members. This is why it is pursuing this case in the highest court in the UK.
But the impact of the decision, and the litigation, goes far beyond the campaign’s focus. Throughout the litigation the campaign has been supported by, the Campaign Against Arms Trade and Quakers in Britain. The former has major concerns over the impact on the rights of people to divest from the UK’s deadly arms trades, while the latter believes that divestment is a fundamental democratic tool for campaigning for justice and equality which must be defended.
If the Court of Appeal decision is not overturned we could see these policies used to pursue any government’s political aims, for example by preventing investment strategies that seek to respond to such crucial issues as fossil fuel extraction. The government would have free rein to prevent ethical investment by local government pension schemes.
While the case is focused on legal issues concerning whether the government acted for a proper purpose, fundamental principles are at risk relating to freedom of expression and conscience, government overreach in local democracy, and the right of pension holders to have a say in the investment and divestment of funds.
If the government wins this final legal battle then these guidelines will prevent local government pension holders from exercising their right not to be complicit in a range of controversial issues to which many have ethical objections.
What’s more, our campaign believes that the LGPS should be governed by its members and not by the central state. This case is an attempt by the government to impose a blatantly political agenda on LGPS members to the detriment of local democracy. In our view this is a major overstep of power that cannot go unchallenged.
It is likely that the hearing will take place in the second half of 2019. Roughly one in three cases that apply to the Supreme Court get permission to appeal in this way, meaning the Supreme Court believes there is a case to be heard.
A victory in the Supreme Court would be a victory not just for the rights of the Palestinian people and those that campaign for them, but also for the rights of ordinary citizens, in this case local government pension holders, to invest their money in ways that accord with their ethical principles.
Ben Jamal, director, Palestine Solidarity Campaign, and Jamie Potter, partner, public law and human rights, Bindmans