It is not every High Court appeal where one of the advocates accuses the other of racism for their skeleton argument – but when the Middle East is the issue under discussion nothing is surprising.
The tone of this appeal can be judged from the fact that Adam Solomon KC, on behalf of the SRA, accused Franck Magennis for Mr Husain of crossing the line from “engaging with the legal question … to making assertions which are simply antisemitic”. “This” he said “should not be tolerated by the court”. He was objecting, among other things, to what he said was Mr Magennis’s use of comparisons between Israel and Nazi Germany. Mr Magennis responded by accusing Mr Solomon of having “a desire to stifle … the appellant’s freedom to fully advance his appeal”.
Mr Justice Chamberlain, in his judgment, was a model of even-handedness. Having noted that the accusation was not withdrawn, and led to what he politely called submissions in “robust terms” he stated that Mr Magennis had done nothing “professionally improper” but that he had gone “further than required to make his point”. He added that he was sure Mr Solomon was “not motivated by any desire to stifle the appellant’s freedom to advance his case”. For good measure, in something of a sideswipe at both advocates, he suggested that “legal representatives would be well-advised to focus rigorously on the issues the court has to determine” and aim to “lower, rather than raise, the temperature of debate”.
The substance of the appeal was Mr Husain’s attempt to overturn the decision of a Solicitors’ Disciplinary Tribunal to strike him off for a series of tweets over nine months from October 2020 to June 2021. While the tweets themselves significantly pre-dated the Hamas massacre of more than 1200 people, mainly Jews, on 7th October 2023, and the war in Gaza that followed, most of the Tribunal hearing and the appeal took place with those events as the background.
The court had to grapple with the boundary between legitimate political speech, which enjoys the highest protections under Article 10 of the European Convention on Human Rights [Higgs v Farmor’s School [2025] EWCA Civ 109], and political speech amounting to professional misconduct in the regulatory context as set out in recent cases such as Adil v GMC [2023] EWCA Civ 1261 and PSA v GPhC & Ali [2021] EWHC 1692 – this last a judgment of Chamberlain J himself.
The allegations included that the posts were “antisemitic and/or inappropriate”, so the court had to decide whether the Tribunal has erred in deciding what antisemitism was, as well as whether its judgement on whether any of the tweets were, in fact, antisemitic was sustainable. The Tribunal had been required to ask itself a further question – that is whether, even if the tweets were antisemitic or offensive, they amounted to professional misconduct.
The tweets ranged from accusing Israel of the “ethnic cleansing” of Palestinians, suggesting Israel was formed by “a murderous bunch of Eastern European Zionists”, “you should leave and go back to Poland/Hungary where you came from”, referring to Zionists as fascists, comparing the state of Israel to apartheid South Africa, accusing Israel of genocide and deliberately targeting children, using the word “pig” repeatedly as an adjective ahead of “Zionist”, and using the terms “UNTERMENSCHEN” and “Lebensraum” in the Israeli context.
The tweets also included more direct attacks on individual Jews including Daniel Finklestein, David Aaronovitch and Hugo Rifkind of The Times, and Simon Myerson KC.
Other tweets were more straightforwardly offensive including “Zionist retard”, accusing some Pakistanis of having a “slave mentality” and making a rape reference, derogatory and sexual references to Chinese people, and referring to “dirty Gujar”.
Chamberlain J’s judgment is detailed and nuanced, and it is hard to do it justice in a short article. Given the likelihood of this specific issue arising in regulatory proceedings, perhaps the most important part of the judgment was his analysis of how a Tribunal should approach the questions set out above – that is: what makes a piece of speech antisemitic, and when and how will that constitute professional misconduct.
The Tribunal in Husain had relied in part (but importantly only in part) on the International Holocaust Remembrance Alliance [“IHRA”] working definition of antisemitism, and the accompanying examples. The IHRA definition is unlikely to cause many problems:
“Antisemitism is a certain perception of Jews, which may be expressed as hatred towards Jews. Rhetorical and physical manifestations of antisemitism are directed towards Jewish and non-Jewish individuals and/or their property, toward Jewish community institutions and religious facilities.”
The IHRA provides, alongside this definition, what it calls some “contemporary examples of antisemitism in public life …”. These are things which “might” amount to antisemitism, although it stresses that “criticism of Israel similar to that levelled against any other country cannot be regarded as antisemitic”.
The IHRA characterisation of antisemitism is important because its members include 35 countries (including the UK) and it has been accepted by a wide range of UK organisations and public bodies including the British Government and the European Parliament. Despite that, it is controversial and Chamberlain J noted that it has been criticised for being “incoherent, vague [and] vulnerable to pollical abuse…”. Further, it is not a legally endorsed set of examples and the Tribunal rightly considered a number of other sources.
Chamberlain J has provided some guidance as to how a Tribunal might approach these difficult questions. He points out that the “examples” are just that – examples. They are things that in the right context might constitute antisemitism, but will not do so automatically.
So, for example, drawing comparisons between Israeli policies and Nazi policies may not be antisemitic where a reasoned comparison is being made between specific policies of the two countries, as is sometimes done by historians and journalists [para 109]. However, he notes, such comparisons are “apt to be incendiary” and “especially hurtful”, and when they are used “as a taunt, which deliberately references and weaponised the most painful events in Jewish history to which some Jews alive today are witnesses and which profoundly affect many others … could reasonably be regarded as antisemitic” [para 110].
He is clear that speech which is said to “[deny] the Jewish people their right to self-determination” cannot be automatically regarded as antisemitic; for a start it would stigmatise anyone who believes in the so-called one-state solution in which Jews and Arabs share the land in a single entity. Nor is it automatically antisemitic to describe the existence of the State of Israel as a “racist endeavour” or accuse it of being an “apartheid state”.
In the end “the focus of the court or tribunal should therefore be on language and context” [para 108]. The meaning of the tweets should be measured against the understanding of “an observer with a reasonable understanding of the main historical and cultural manifestations of antisemitism” [para 113]. In other words, for example, an image of hook nosed bankers feasting on the poor should not be regarded as acceptable even if most people would not recognise it as a long-standing historical antisemitic trope.
In the context of Chamberlain J’s analysis, the many crude and insulting tweets posted by Mr Husain may not have proved too difficult to categorise, and Mr Husain’s appeal against his striking-off was dismissed. However the acceptable limits of free speech for professionals remains a controversial area for regulators. Given the extreme emotions generated by events in the Middle East debate, the more intemperate partisans from either side will be horrified by what Chamberlain J had to say. But the law cannot duck this issue, as it could not duck other recent issues which tested the limits of free speech [For example Covid/Covid vaccines and the involvement of Bill Gates/the US Government/ China/Big Pharma/5G etc]. Chamberlain J has provided a route through the difficulties, and one that will be invaluable to regulators and practitioners as other contested examples of speech emerge.
SUMMARY In 2017 a 24-year-old woman, Louella Fletcher Michie, died at the Bestival Music Festival,…
On the 3rd November 2020, Kadian Nelson abducted and raped a 13 year old girl…
