The High Court has today handed down judgment in Husain v Solicitors Regulation Authority, dismissing Mr Husain’s appeal against the order of the Solicitors’ Disciplinary Tribunal (SDT) striking him off as a solicitor.
The SDT had concluded that Mr Husain’s tweets had been antisemitic and offensive. It held that the only sanction open to it was to strike him off.
He appealed to the High Court on various grounds, and perhaps most significantly, asserted that his rights to freedom of speech had been breached and also that the SDT erred in relying on the International Holocaust Remembrance Alliance (IHRA) working definition of antisemitism.
Mr Husain had denied that he was antisemitic and contended that he was merely exercising his rights to free speech, and to criticise Zionism. Counsel for Mr Husain had asserted to the Court on appeal that it was legitimate to assert that Israel is a fascist state, that Zionism is a fascist ideology and that Israeli fascism can be compared to Nazi Germany. The High Court held however that while making such assertions was not improper, in his statements about Israel’s conduct, he had gone further than required to make his point, and the Court urged that submissions should be confined to the issues.
As regards Mr Husain’s submissions that his tweets were political speech, protected by Article 10 ECHR, the Court accepted the SRA’s arguments that the proper regulation of the professions can mean that there is lawful interference with Article 10 rights. Significantly for professional regulation, the Court approved the approach of the Bar Tribunal and Adjudication Service in Holbrook v BSB (Case 2021/4441, 25 March 2022) in this regard. This is now the correct approach applicable to any case where a regulator takes disciplinary action against a professional on the basis of public speech on a political issue on the ground that it is offensive.
Applying that test, the Court held that the SDT in this case had not erred but had correctly determined that Mr Husain’s conduct had been “both seriously offensive and seriously discreditable” in that there had been “many examples of antisemitic rhetoric, vulgar and offensive language, and racism”.
As regards the IHRA definition of antisemitism, in a thorough review of the history and status of the IHRA definition, the Court concluded that most of the IHRA’s examples are both unobjectionable and useful. They serve to illustrate some of the ways in which hatred or hostility towards Jews has historically been expressed. As regards the 7th and 8th examples in the IHRA, namely, of denying the Jewish people their right to self-determination, e.g., by claiming that the existence of a State of Israel is a racist endeavour, or applying double standards by requiring of Israel a behaviour not expected or demanded of any other democratic nation, the Court’s conclusion was more nuanced. Of these, the Court held “particular care is required in the application of the seventh and eighth examples because they relate to speech which is critical of the historic or contemporary conduct of the State of Israel” and that”such speech in principle attracts the highest level of protection under Article 10 ECHR.” As regards the 7th and 8th examples, the Court held that “it is unlikely that the substantive content of the message alone will justify the label “antisemitic”. However, depending on the language used, and in context, the speech may be antisemitic. The focus of the court or tribunal should therefore be on the language and context.” Similarly, as regard the 10th IHRA example, of comparing the policy of Nazi Germany to that of the State of Israel, “[d]epending on the context, a criticism of Israel which pointedly uses Nazi language and imagery as a racialised taunt of this kind could reasonably be regarded as antisemitic”.
Appling those tests, the Court held that not only was the conclusion of the SDT that Mr Husain’s tweets demonstrated hatred or prejudice towards Jews open to it, but it was “clearly correct”. The SDT was “entitled, and in my view clearly correct, to regard these posts as instances of antisemitism.” Further, that “the Tribunal could not rationally have reached any other conclusion than that Mr Husain had, over a long period, repeatedly tweeted in terms that were both grossly offensive and antisemitic”.
Accordingly, the SDT’s conclusion to strike off Mr Husain was unimpeachable.
Adam Solomon KC acted for the SRA in successfully defending the appeal, instructed by Capsticks LLP.
A copy of the judgment can be found here.
