Melanie Phillips's Blog, page 14

It’s absurd to claim British justice is “fascist”

It’s absurd to claim British justice is “fascist”

The word fascism is fast losing its meaning. For decades, it has been used as a boilerplate insult directed by the militant left against their opponents. In recent times, it has been used to describe anyone who opposes uncontrolled or illegal immigration, Islamist supremacism or the erosion of western culture and identity.

It is also being used, however, by people on the other side of the political aisle. Tomorrow, the anti-Muslim activist Tommy Robinson (real name Stephen Yaxley-Lennon) will appeal against his prison sentence. Already, fingers are hovering over keyboards ready to launch the f-word at the appeal court judges hearing the case.

Indeed, so troubling have these protests over Tommy Robinson become, and so politically sensitive therefore is this appeal, that the hearing is to be presided over by the most senior judge in England and Wales, the Lord Chief Justice.

For the reaction to this jailing has been simply astounding, and immensely depressing in what it reveals about rational discourse in the West.

To read my whole Times column (£) please click here.

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Britain’s Brexit betrayal may put Corbyn’s Jewish problem into Downing Street

Until last Friday, whenever people asked me uneasily about the likelihood of the far-left U.K. Labour Party leader Jeremy Corbyn coming to power at the next general election, I replied that — with the exception of one set of circumstances — I thought the risk was overblown.

This was because, although he did far better in the last election than anyone had thought possible, the reason for that was precisely because hardly anyone had thought his victory was possible. It was therefore considered safe to vote against the Conservative party and for Labour.

However, when Corbyn nearly won that election, those who feared his far-left policies had a fright—an alarm that has deepened as his team has doubled down on its socialist extremism. In addition, many British Jews have become even more horrified as the Labour Party has been engulfed by evidence of rampant antisemitism.

It was therefore likely that, at the next election, the situation would be reversed, and voters would turn out in droves to stop Corbyn. There was, however, one situation in which I thought all bets would be off. That would be if Conservative Prime Minster Theresa May screwed up Brexit and put in jeopardy the United Kingdom’s departure from the European Union.

That’s precisely what happened last Friday. At a marathon all-day Cabinet meeting at the prime minister’s country residence, Chequers, Mrs. May deprived her ministers of their phones and access to their officials’ advice. Threatening any opponents with being fired on the spot, she drove through a negotiating position for exiting the E.U. that would leave the U.K. still tied to E.U. laws and policies, unable to strike trade deals in its own best interests and still bound by European Court of Justice rulings, which take precedence over rulings by the English courts.

Mrs. May and her camp have presented this as a pragmatic compromise. Brexiteers see it as a coup by a Remainer establishment which — in similar vein to the all-out attempt by the U.S. political and media class to destroy the Trump presidency — is perpetrating a no-holds-barred strategy to reverse Brexit by delivering it in name only, while ensuring that the U.K. remains tied to the E.U.

The political fallout within the Conservative party is huge. The Brexit Secretary David Davis and the Foreign Secretary Boris Johnson have resigned, along with various other junior ministers. No one can currently predict whether Mrs. May, her government or her Chequers position will survive.

What is clear, however, is the seismic effect this has had on mainly Brexit-supporting Conservative voters. They believe Mrs. May has betrayed Brexit, betrayed her promises to them and betrayed her country. Unless Brexit is properly delivered, many of them will refuse to vote Conservative at the next election.

And here’s the really devastating thing. If Britain remains tied to the E.U., it will not regain its power of independent self-government.

Many who voted Brexit may well therefore decide that, with the U.K. effectively reduced — in the scathing words of Boris Johnson — to an E.U. “colony,” it doesn’t much matter if Jeremy Corbyn becomes prime minister because neither he nor any other occupant of that diminished office will be able to enact the policies they want.

Yet, of course, Corbyn can still do much damage to British society, not least because of his refusal to tackle the antisemitism within his party. Indeed, this problem has become far, far worse.

For Labour has now drawn up its own definition of antisemitism. Astoundingly, it has cherry-picked the definition — adopted by the British and U.S. governments among others — produced by the International Holocaust Remembrance Alliance. Labour has twisted that definition by censoring its application to bigotry against Israel.

It says it will “not tolerate name-calling and abuse.” Yet it also says: “Discourse about international politics often employs metaphors drawn from examples of historic misconduct. It is not antisemitism to criticise the conduct or policies of the Israeli state by reference to such examples unless there is evidence of antisemitic intent.”

What! Let’s unpick this. What kind of “historic misconduct”? It doesn’t explicitly say.

But in the next sentence, it says “the use of Hitler, Nazi and Holocaust metaphors” should be resisted in discussing Israel-Palestine — but only because this carries “a strong risk of being regarded as prejudicial.”

It would seem to be implying, therefore, that this is what it has in mind by “historic misconduct.” So calling an Israeli Jew a “Nazi,” for example, would not necessarily be antisemitic — and here’s the kicker — “unless there is evidence of antisemitic intent.”

Since no one can look into other people’s souls and judge what drives them, this seems to imply that Labour members can make such antisemitic remarks without redress.

Can anyone doubt the outcry if it were to be said that insulting black people with gross and derogatory insults, falsehoods or analogies wasn’t racist unless there was evidence of racist intent? By inserting as a condition “evidence of antisemitic intent,” Labour has thus effectively redefined antisemitism itself out of existence.

Worse still, the guidance says Israel’s “description of itself as a ‘Jewish state’ can cause particular difficulty in the context of deciding whether language or behaviour is antisemitic.”

Really? Why? The implication is that there’s something inherently questionable about defining Israel as a Jewish state. But that’s exactly what it is.

So for the Labour Party, even though it accepts that “the Jewish people has the same right to self-determination as any other people,” it seems that the Jewish nation state of Israel is itself problematic.

The guidance carefully deems it impermissible “to hold Jewish people or institutions in general” responsible for alleged misconduct by Israel. Even more carefully, it says it is “wrong to apply double standards by requiring more vociferous condemnation of such actions from Jewish people or organisations than from others.”

The point is that it is defining antisemitism solely as prejudice against Jewish people (or institutions). It does not define it as prejudice against the State of Israel.

But most of the antisemitism on the left takes the form of obsessive and paranoid falsehoods, distortion and double standards directed at the behavior of the State of Israel, with much of this onslaught echoing the imagery and tropes of medieval and Nazi antisemitism.

It thus singles out Israel for precisely the same unique and potentially exterminatory abuse as has been directed at the Jewish people over the millennia. Yet this is deliberately excised altogether from the Labour Party definition of antisemitism.

Some in the party are pushing back against this. Its Brexit spokesman, Sir Keir Starmer, has said it should adopt the full IHRA definition.

His concern is understandable. For Labour’s refusal to accept that the deranged defamation directed against Israel is totally unacceptable puts the party itself beyond the pale.

The fantastic situation has now developed in which, with the ostensible aim of addressing the problem of antisemitism among its members, the Labour Party has now positioned itself as institutionally antisemitic.

And the Brexit debacle means that the likelihood of this utterly obnoxious party coming to power in the U.K. has just become far greater.

Jewish News Syndicate

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Betrayed Brexit voters will give up on democracy

Betrayed Brexit voters will give up on democracy

Who can doubt the contribution to Friday’s Chequers debacle made by the storied ranks of Whitehall’s Sir Humphreys, skilled beyond measure in manipulating politicians into standing on their heads and swearing they are still the right way up?

Right from the moment Britain voted to leave the EU, it was clear that the entire political establishment would unite to thwart this. On Friday, it won and the British people lost.

With the resignations of David Davis and Boris Johnson, however, both the Chequers agreement and Mrs May’s government are now disintegrating by the minute.

What is beyond doubt, though, is the damage that has been done not just to political careers or the Conservative Party but, far more dangerously, to voters’ belief in the democratic process itself.

To read my whole Times column (£), please click here.

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Our crazy world: Brexit, PA textbooks, Labour party antisemitism

Our crazy world: Brexit, PA textbooks, Labour party antisemitism

Please join me here as I discuss with Avi Abelow of Israel Unwired Britain’s increasingly tumultuous Brexit drama, the UK Foreign Office’s sudden qualms over funding Palestinian Authority textbook incitement (!), the Labour party’s ever-deepening mire over antisemitism, and more.

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The memorandum by Martin Howe QC on the Chequers position

The erstwhile leading Brexiteer, the Environment Secretary Michael Gove, was on TV today defending the UK government’s Brexit negotiating position reached at Chequers on Friday evening. You can read here my opinion that this represents a betrayal of the Brexit vote.

Gove maintained that, although the government’s position wasn’t perfect, it upheld the spirit of Brexit. Specifically he claimed that “the draft deal would mean Britain was outside of the European Court…” and that “the common rule book would mean unified rules for 20 per cent of the British economy dealing with goods – but that Parliament was not obliged to follow new rules in future”.

Rejecting the conclusion by Martin Howe QC that the proposals would lead to a “worst-of-all-worlds ‘black hole’ Brexit” which would leave the UK a “vassal state in the EU’s legal and regulatory tar pit”, Gove claimed that the “almost Dickensian” analysis “misses the point and is short of the mark”.

“‘How can it be the case that we are stuck in a regulatory tar pit when we can determine not just migration policy but also, in a huge swathe of our economy, we have perfect autonomy?’ he asked. ‘And also Parliament can decide, if new rules come forward, to reject them.’

“Mr Gove dismissed the suggestion the UK was asking for ‘fake sovereignty’ as he argued European Court of Justice rulings would no longer automatically apply. ‘What you are doing is manufacturing a sense of fake or even mock outrage'”, he said.

Here in full is the memorandum by Martin Howe QC based on the limited amount that we know so far about the government’s Chequers position.

This memo is based on the press statement issued by the government about the conclusion of the Chequers Cabinet meeting on 6 July 2018, and should be read in conjunction with that statement which is reproduced on this page. The memo draws some important conclusions on the basis of the limited information available in the press statement prior to the publication of the Government’s White Paper.

This memo is based on the press statement issued by the government about the conclusion of the Chequers Cabinet meeting on 6 July 2018, which lacks details in a number of key areas. The government’s proposals can only be fully assessed once their promised White Paper is published. However, some important conclusions can be drawn very clearly even on the basis of this limited information.[1]

Para 4(a): the “common rulebook for all goods including agri‑food”.

A “common” rulebook? Although the phraseology is expressed as being that the UK and EU would maintain a “common” rulebook for all goods including agri-food, this would only be “common” in the sense that the UK would have to obey and apply in complete detail the laws promulgated by the EU without having a vote on the content of those laws. Further, it is clear from 4(c) (dealt with below) that the UK would be obliged to interpret these rules in accordance with rulings of the ECJ under a system which would (whether directly or indirectly) bind UK courts to follow ECJ rulings. In areas where rules relating to goods are applied in a discretionary way under the control of EU regulatory bodies, it is inevitable that the application of the rules in the UK and UK regulatory bodies would continue to be bound by the decisions of EU bodies in the same way as if the UK were still a member state but without a vote or voice within those institutions. This would amount to a permanent vassal relationship in the area covered by the ‘common’ rulebook.

Ability to change current laws? There is no indication in the text of the statement that the UK would have any ability to change any of the existing body of EU laws, however damaging they may be or become in the future – for example where restrictive EU laws block the development or deployment of new technology, such as in the biotech area where the UK has a huge opportunity to develop its leading industry and to sell its expertise and products around the world. In order supposedly to benefit the 12% of our economy which consists of exports to the EU, we would accept a binding obligation to freeze the laws which cover 100% of our economy consisting of domestic production and also imports from third countries (see further below). In political and constitutional terms, it would mean that Parliament would not be free to alter laws in the field covered, however strong the wishes of voters. The present democratic deficit whereby Parliament is unable to alter laws in the field covered by EU competences would be worsened, since UK voters would lose their current (limited) ability to press for changes to EU laws via the UK government or via MEPs.

Obligation to follow future changes to EU laws. The statement tells us that the UK would “commit by treaty to ongoing harmonisation” in the area covered by the EU rulebook. First, it states that Parliament would have “oversight of the incorporation” of new EU rules into UK law, which suggests simply the continuation in substance of the current EU setup whereby most changes to UK law in order to implement EU directives are made by statutory instrument under s.2(2) of the European Communities Act 1972. In practice, most such SIs are made by negative resolution procedure and so Parliament exercises “oversight” only in the sense of not exercising its theoretical right to vote down an SI.

Secondly, it is said that Parliament would have “the ability to choose not to” incorporate future changes into UK law “recognising that this would have consequences”. It would appear that the government will request a theoretical right not to implement future EU law changes but in return will accept a treaty which allows the EU to impose “consequences” if this theoretical right were to be exercised. It is worth noting that a similar theoretical right under the EEA Agreement not to follow future changes in EU internal market laws has never been successfully exercised, with Norway being forced to back down in 2013 from its refusal to implement the Postal Services Directive in the face of threatened countermeasures by the EU. Thus, it would appear that this reference to a theoretical right for Parliament to block new EU laws is included for reasons of political tokenism and is unlikely to be of real practical value.

Impact on UK’s international trade policy. In addition to hobbling the UK’s domestic economy, the so-called ‘common’ rule book would require the UK to apply EU laws against imports from third countries. Most trade agreement today are about far more than tariffs, and deal with the removal or reduction of non-tariff barriers which arise from differing regulatory laws or systems. Most developed countries have in place laws which deal satisfactorily with, for example, keeping dangerous food, medicines or other goods off the market, but the details of those laws may differ widely. Therefore “mutual recognition” involves accepting that goods from another trade partner and which satisfy their own laws on the subject of, say, food safety, are not going to poison people if imported, so should be allowed in. An obligation to follow the EU rulebook on goods would completely prevent the UK from entering into mutual recognition agreements on goods under which we would accept the importation of goods from trade partners under standards which differed in any way from EU rules.

This problem is particularly acute in the area of agriculture and food, where many aspects of current EU laws are not based on genuine safety issues or scientific principles, but rather are framed in order to protect EU producer interests and methods against imports from outside the EU. A particularly egregious example are the EU’s current unscientific and technophobic rules against improvement of crops or livestock using DNA technology. The USA in particular has (under all colours of administrations, not just the present Trump administration) had a long standing objection to the EU’s unscientific and protectionist rules in the agriculture field. The idea that the USA would accept a trade agreement with the UK in which the UK rigidly maintains the EU’s existing corpus of non-tariff barriers against US imports is for the birds. Similar objections would be likely to arise on the part of Australia given its large agricultural export interests, so this “common rulebook” policy is likely to destroy at one stroke the two most attractive and achievable post-Brexit free trade agreements for the UK.

Scope of the “common rulebook”. The area of EU laws which the UK would be obliged to apply is said to be “only those necessary to provide for frictionless trade at the border.” However at minimum this would cover all laws and rules which have to be complied with by goods placed on the single market, including those regulating methods by which they are produced, inspections and certificates, etc, and rules relating to how they are packaged and presented on the market. This is a very wide field indeed. An example is the detailed EU rules on the requirements for labelling vacuum cleaners with energy test results, which were framed by the Commission to require tests to be performed in a way which gave an advantage to German manufacturers over Dyson’s more efficient bagless designs. These particular rules were successfully challenged at one stage by Dyson in the ECJ (Case C-44/16 P Dyson Ltd v. European Commission, 11 May 2017), but more recently Dyson may suffer a reverse since an ECJ Advocate-General has expressed the view that EU law does not permit Dyson to display supplementary information about its own tests alongside the officially required (and flawed) EU energy tests: Case C‑632/16 Dyson Ltd v. BSH Home Appliances NV, AG Opinion 22 Feb 2018 – the ECJ’s judgment is expected before long.

The Dyson case illustrates how the EU regulatory system for goods can already be skewed in favour of Continental interests and against British manufacturers. More significantly, the system is skewed in favour of existing technologies and against innovators. Once we leave the EU and no longer have a vote on the framing of these types of rules, the EU will have a positive incentive to frame its rules in order to disadvantage UK producers who will be obliged to follow those rules.

4(b) “reciprocal commitments related to open and fair trade”

While it is normal for Free Trade Agreements to contain some flanking provisions relating to open markets and state subsidies, the width and detail of what is proposed is far greater than would be accepted or acceptable in an agreement between any independent country and the EU. There is a commitment to apply a “common rulebook” on state aid. While the principle of restricting state aids is acceptable, this would imply the acceptance of the EU’s detailed state aid rules, so not allowing the UK to apply such rules flexibly and with the interests of its own industries in mind.

Of even more concern is that the UK would agree “to maintain high regulatory standards for the environment, climate change, social and employment, and consumer protection – meaning we would not let standards fall below the current levels.” (Emphasis added). The problem with this is not a general requirement to maintain high standards, which we would want to do anyway, but the commitment not to let standards in these areas “fall below” current levels. Any changes to our rules in these areas which improve the competitiveness of UK industry would almost certainly be interpreted by the EU as allowing our standards to “fall below” current standards. This commitment is therefore an extremely dangerous one to undertake, particularly if it were linked to a binding enforcement mechanism and even more so if that binding mechanism ultimately becomes the ECJ (see below).

Para 4(c): “consistent interpretation and application of UK-EU agreements” – putting the UK on a par with Moldova

This paragraph first states that the interpretation and application of UK-EU agreements would be done “in the UK by UK courts, and in the EU by EU courts.” This is what one would expect with any treaty arrangement. This subject has been covered in depth and the principles explained in “Adjudicating Treaty Rights in post-Brexit Britain: Preserving Sovereignty and Observing Comity”.[2] Put shortly, there is nothing wrong with the courts of the parties to an international treaty looking at each others’ judgments, reading them with mutual respect, and trying to be consistent with each other’s interpretation of the treaty if they can. This is indeed a general principle of international judicial comity on the interpretation of treaties.

However, it is important that this process should be mutually balanced (i.e that the ECJ and Member State courts should pay just as much attention to judgments of UK courts as vice versa), and absolutely essential that it be non-binding. Para 4(c) indicates that “due regard” will be paid to EU case law in “common rulebook” areas. This lacks mutuality – there is no suggestion that EU courts should pay “due regard” to UK courts, immediately unbalancing the relationship and placing UK courts in an inferior position. More importantly, the phrase “due regard” will be coloured by the ECJ reference procedure mentioned later in that paragraph.

The paragraph states that there shall be a dispute resolution procedure involving in many areas “binding independent arbitration”. This is commendable. Indeed, as we argue in the Adjudicating Treaty Rights paper,[3] a neutral and balanced (ie. balanced between the UK and EU, with a neutral chairman) international arbitration mechanism is the normal and appropriate mechanism by which parties to international treaties agree to resolve their disagreements, and is the normal mechanism contained in the EU’s own trade and association agreements with non-member states.

However, para 4(c) goes on to indicate that the binding “independent” arbitration procedure will accommodate “through a joint reference procedure the role of the Court of Justice of the European Union (CJEU) as the interpreter of EU rules, but founded on the principle that the court of one party cannot resolve disputes between the two.” This Delphic and seemingly self-contradictory sentence is extremely important, and needs to be carefully unpacked in order to be understood.

The first point to appreciate is that the ECJ has held that if issues of EU law are referred to it, its answers must be binding. In its formal Opinion 1/91 on the proposed EEA Court, it said:

“61 … it is unacceptable that the answers which the Court of Justice gives to the courts and tribunals in the EFTA States are to be purely advisory and without any binding effects. Such a situation would change the nature of the function of the Court of Justice as it is conceived by the EEC Treaty, namely that of a court whose judgments are binding.”

Therefore it is impossible to implement the proposed “joint reference” procedure without the ECJ’s rulings being given binding effect, which will necessarily overrule any contrary judgments of the UK courts. This envisaged “joint reference” procedure would appear to be based on the procedure in the EU-Moldova Association Agreement. In preparation for its hoped for accession to the EU, Moldova has agreed to align wide areas of its domestic law with EU law, and also to align the interpretation of that law, in preparation for its hoped-for accession to the EU. The key mechanism by which this convergence in interpretation is to be achieved is, under Article 403(2) of the EU-Moldova Association Agreement, an obligation on the arbitral panel in an EU-Moldova dispute to refer issues of interpretation of provisions of the Agreement which reflect EU law to the ECJ, rather than deciding those issues for itself. Although formally it is the function of the arbitral tribunal to rule on the dispute between the EU and Moldova, where the dispute is over the content of the EU based rules which Moldova is to apply, it is the ECJ which has the sole power to rule on the issue. Thus the closing words of para 4(c) of the Chequers statement – “the principle that the court of one party cannot resolve disputes between the two” are formally correct, but are in fact empty of substance if this mechanism is used.

One can see the logic of entering into that kind of relationship from the point of view of a country which is aligning its laws in preparation for membership, but it is wholly incompatible with the status of the UK as an independent state when it has departed from the EU. When we leave the EU on 29 March 2019, the ECJ will cease to be a multi-national court in which we participate alongside other members, and will become an entirely foreign court owing its loyalties solely to the EU itself and its Member States. It is virtually unheard of in international relations for any independent state to agree to be bound by the organs of the other treaty party if there is a dispute over the interpretation or application of the treaty. As a practical matter, the UK’s treaty obligations in the relevant areas will be like signing a blank cheque on which the detailed words can be written in by an organ of the EU. By participating in this mechanism, the UK will be placing itself lower than any other independent state which has a treaty with the EU,[4] and on a par with Moldova.

The existence of this mechanism will in turn affect the approach of the UK courts to how they interpret and apply the concept of paying “due regard” to ECJ jurisprudence. While (it would seem) direct references from UK courts to the ECJ will cease except in one area,[5] it is likely that the UK courts will reason that there is no point in them departing from EU case law, even if they disagree with it, since it will just end up in an arbitration in which the issue will be sent to the ECJ whose ruling will then be binding on the UK. The courts adopted very similar reasoning in deciding that they were effectively bound to follow clear and consistent jurisprudence from the Strasbourg Court when applying the Human Rights Act 1998, even though the Act itself merely requires the courts to “take into account” Strasbourg Court rulings.[6]

Para 4(c) does not make clear what areas will be covered by this “joint reference” procedure, but presumably at least the whole “common rulebook” area would need to be covered: the EU would insist on that. In the areas covered by the “joint reference” procedure, even if formally instructed to pay “due regard” to it, the UK courts are likely to treat the case law of the ECJ as effectively binding and in any event if they do hold to a view contrary to that of the ECJ it is likely that that view will eventually be overruled via the arbitration and joint reference procedures. So while the direct route of preliminary references from UK courts to the ECJ will be ended, it will still remain the case that as a matter of substance UK courts will be bound by the future jurisprudence of the ECJ in the areas covered by the “joint reference” procedure.

The claim made in para 6(g) of the Chequers statement that this proposal would “restore the supremacy of UK courts” is therefore simply not correct. While the mechanism by which our courts would be overruled by the ECJ would be changed to one that is more indirect, they would remain subject to the ECJ’s case law.

Para 4(d): “Facilitated Customs Arrangement”

This paragraph is very difficult to understand in the absence of any detail. However, the first and most obvious and indeed important point is that the attempted introduction of the “FCA” would cause significant delay before the UK can leave the EU customs union and choose to set its own tariffs, whether by unilaterally changing them or abolishing them against free trade partners. We are now already over two years after the referendum. It beggars belief that it should be contemplated that administrative issues about customs processes could be allowed to dictate the whole trading future of the UK by preventing us from implementing tariff changes even after the end of the implementation period (31 Dec 2020 – 4½ years after the referendum). Yet this seems to be the message of this paragraph. This would be severely damaging to the political prospects of the government and of the Conservative Party, since it would remove the chance of giving tangible benefits of Brexit before the next general election to low income families by removing or lowering tariffs on goods, particularly those where the UK has no or limited producer interests to protect.

The multiple problems of the so-called New Customs Partnership (NCP) were addressed in a 30-page briefing note which has become publicly available.[7] The FCA attempts to address (as far as one can see from this text) only one of those numerous problems, which is that under the NCP, EU-level tariffs would have to be collected on all imports to the UK from the EU, and then importers would have to claim a rebate in order to import tariff free. It does so by indicating that EU level tariffs would be collected on goods shown to be destined for the EU, and UK level tariffs on goods destined for the UK, leaving only a residual “uncertain destination” category (claimed to be a small percentage of imports) to which the “pay the higher rate and claim rebate” system would apply.

The problem with this solution however is that goods which are declared on importation as “UK destination” then need to tracked down the supply chain in order to make sure that they really do end up at a UK consumer. This entails the need for a tracking mechanism in order to track individual goods down supply chains, imposing costs on businesses importing goods for UK consumption and upon their customers who sell on the imported goods in turn. It is most unlikely in any event that the EU would be satisfied that such a system would be sufficient to prevent leakage of goods into the EU. But more fundamentally, it would appear that this system is vulnerable to a successful challenge that it breaches the national treatment principle in GATT Art. III. This is one of the most fundamental principles of the WTO system. WTO Members are not allowed to impose burdens on imported goods (apart from permissible tariffs levied at the point of importation) which treat those goods less favourably than nationally produced goods. The obligation to subject goods imported from WTO Members to burdensome tracking obligations to which nationally produced goods are not subject would appear to be such a prohibited measure under GATT Art. III.

The FCA introduces a new problem compared with the NCP, in that (at least as far as one can see from the paragraph) there is no means of preventing goods flowing into the UK via the EU which come from countries against which the UK is imposing higher tariffs than the EU. This would come about (1) when the UK imposes trade protection measures (e.g. anti-dumping duties) on goods from a country and the EU has not matched those UK measures itself; and (2) where the EU has entered into a free trade agreement with a country where the UK does not have a matching FTA. Imports from that country could then flow into the UK tariff free by travelling via EU ports, so undermining the UK’s negotiating leverage in getting the country concerned to enter into an FTA with the UK. But there seems no suggestion that the EU will be asked to undertake reciprocal obligations (ie. collecting UK level tariffs on goods bound for the UK when UK tariffs are higher, and imposing tracking obligations on third country goods imported into the EU in order to make sure that they do not migrate into the UK). Indeed even where the tariffs are the same, there seems nothing to prevent companies importing their goods into EU ports like Antwerp or Rotterdam for reasons of pure convenience and paying the tariffs on UK consumed goods to the EU rather than the UK.

Further, there is no answer, at least in this short text, to a fundamental problem with the NCP to do with Rules of Origin controls. That problem is that an FTA between the UK and the EU would not mean that UK manufactured goods would be entitled to enter the EU tariff free. That would only apply if the goods satisfy rules of origin controls as “originating” in the UK. For example, cars assembled in the UK with a non-EU non-UK content above a certain threshold would not count as of UK origin for tariff purposes and the EU would be entitled, and indeed bound under WTO rules, to collect import tariffs on such cars. It is not sufficient just to collect EU level tariffs on the components: that would not satisfy WTO rules. This means (in the absence of some mysterious and magical solution within the details of the White Paper) that customs controls will still be required to operate between the UK and the EU under the FCA, so destroying its central point.

It is hard to take this latest evolution of this long running saga as a serious proposal capable of actual implementation. Rather, it seems to be a plan put forward in order to cause delays to the inevitably necessary processes of implementing post-Brexit customs controls between the UK and the EU.[8]

The negotiation process

These Chequers proposals are the starting point rather than the end point of the negotiating process, and therefore any final deal (if a deal is negotiated) is likely to contain further concessions above and beyond those proffered up by the UK at this stage. It will not be acceptable for the EU to permit the UK to (as it puts it) “cherry pick” the goods element of the single market, without also accepting the obligations of the rules on services, the rules on the free movement of persons, and the obligation to contribute to the EU budget for reasons of claimed “solidarity”.

However it is unlikely that the EU will reject these proposals outright. Rather, it will suggest that they go some of the way but not far enough, and keep the UK inside the “lobster pot” delaying the UK’s no-deal preparations until time runs out and the EU can demand further concessions in return for graciously “granting” the transition period. We are therefore firmly on course for a “Black Hole” Brexit in which the UK continues to be subject to most of the obligations of EU membership, is firmly stuck in the EU’s regulatory tar-pit and is prevented from developing our economy away from trade with the EU towards trade with high growth areas of the rest of the world. We will be unable to take advantage of the freedoms of Brexit to improve the competitiveness of our economy or respond to the demands of our citizens for changes to the laws which govern us, and we will no longer have the voting rights and treaty veto rights which we enjoyed as an EU member state.

It is sometimes said that it is best to get “any deal however bad” on leaving the EU, and then try to fix it later. This would be extremely difficult. To get out of the wide ranging and permanent obligations which are envisaged, it would be necessary to give notice to terminate the agreement or the EU would simply have no reason to negotiate. Giving such notice would generate Project Fear 3.0 and create the same hysterical clamour from vested interest groups that the country would be “crashing out over the cliff edge into the abyss”. Further, the envisaged agreement might contain clauses which lock the UK in legally for a longer period, such as an agreement to keep tariffs aligned with the CET unless and until the EU is satisfied with procedures at the Irish border. At least as an EU member we have the right under Article 50 to leave on 2 years notice; under the proposed agreement we could be left in the Black Hole without that right.

Conclusions

The Chequers proposals would involve the permanent continuation in the UK of all EU laws which relate to goods, their composition, their packaging, how they are tested etc etc in order to enable goods to cross the UK/EU border without controls. All goods manufactured in the UK for the UK domestic market, or imported from non-EU countries, would be permanently subject to these laws.

There would be a general obligation to alter these laws in future whenever the EU alters its own laws, with a mechanism for Parliament to block such changes which is probably theoretical rather than practical.

This would put the EU in a position to fashion its rules relating to goods so as to further the interests of continental producers against UK competitors, when we will have no right to vote on those rules.

The obligation to follow the EU rulebook for goods would gravely impair our ability to conduct an independent trade policy. In particular, it will prevent us from including Mutual Recognition Agreements for goods in trade treaties and this is likely to destroy the prospect of successfully achieving meaningful agreements with some of the prime candidates such as the USA and Australia.

The ECJ jurisdiction proposals would put us in the same position as Moldova, an applicant/supplicant state which is willing to accept binding ECJ rulings on the conformity of its laws with EU law as part of the preparations for its accession. Quite why this is thought to be a suitable model for a country which has left the EU and is the 5th largest economy in the world is unclear. The supremacy of the UK courts over laws in the UK would not be restored, contrary to the claim made in para 6(g) of the Chequers statement.

The new “Facilitated Customs Arrangement” seeks to solve one of the problems of the NCP (collection of EU level tariffs with rebate system on goods destined for the UK market) by imposing on UK-destined goods the administrative burdens of a tracking system. This would (1) increase the likelihood of this system being found in breach of the national treatment principle in GATT Art.III, and (2) apparently extend yet further the timescale for implementation of this Heath Robinson system, locking the UK in the mean time into the EU’s common external tariff, preventing the electorate from benefiting from Brexit in time for the next General Election.

However, there is no indication at least from what has been made public that the FCA has solved or alleviated any of the other problems of the NCP proposal. It is not clear how the problem of rules of origin controls on UK manufactured goods imported into the EU will be addressed in the absence of customs controls on the UK/EU border, or how this issue can be solved in compliance with WTO rules.

These proposals will not be accepted by the EU since in their perception they amount to unacceptable “cherry picking” of the “benefits” of the single market. However the EU is unlikely to reject the UK’s position outright, but will instead keep the UK inside a “lobster pot” where it negotiates rather than prepaing for no-deal. When the negotiation time runs down, the EU will then demand huge last minute concessions in return for not taking away the transition period.

These proposals therefore lead directly to a worst-of-all-worlds “Black Hole” Brexit where the UK is stuck permanently as a vassal state in the EU’s legal and regulatory tar-pit, still has to obey EU laws and ECJ rulings across vast areas, cannot develop an effective international trade policy or adapt our economy to take advantage of the freedoms of Brexit, and has lost its vote and treaty veto rights as an EU Member State.

[1]The text of this memo relates to the Statement from HM Government issued from Chequers on 6 July 2018.

[2]Paper by Martin Howe QC, Francis Hoar and Dr Gunnar Beck, available from Lawyers for Britain at http://lawyersforbritain.org/adjudica...

[3]See previous footnote.

[4]For example, both Andorra and San Marino have conventional bilateral international arbitration mechanisms in their agreements with the EU, with no suggestion that these countries will be subordinated to ECJ rulings. The government’s proposals would therefore seem to place the United Kingdom, the fifth largest economy in the world, below Andorra and San Marino in our international relations with the EU.

[5]Except in citizens’ rights cases where the UK has already conceded that such references may continue to be made in cases which commence up to 8 years after 31 Dec 2020.

[6]R (Ullah) v Special Adjudicator [2004] UKHL 26, [2004] 2 AC 323.

[7]https://europeanfoundation.org/custom...

[8]Which does not mean that they must be enforced by means of physical installations at the Irish land border

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Faithless, craven and cowardly – the British government’s Brexit betrayal

We don’t yet know whether Brexiteers in the Conservative party will seek to bring down the Prime Minister Theresa May over the UK negotiating position that she forced through Cabinet on Friday.

We don’t yet know whether the EU will accept her “compromise” package or will reject it with the contempt they have shown until now at any suggestion of a “pick and mix” approach to the EU’s customs union and rules.

But what we can say with near-certainty is that what Mrs May has done is put in serious doubt a Conservative victory at the next general election – and maybe at any further general election for a long time after that.

For she and her cowardly and faithless colleagues have betrayed Brexit voters, betrayed democracy and betrayed the British people.

In voting as they did on June 23 2016 to leave the EU, the British people made a solemn declaration of belief in the value of democratic sovereignty, national self-government and Britain regaining the power to decide its own laws, to conduct its own trade deals in the best interests of the country, and to rule itself once again with its own policies passed by its own parliament as the independent nation it once was.

Ever since that historic vote the Remainers – who by definition do not value democratic self-government and national sovereignty which they are all too happy to see subsumed under EU control – have sought every means possible to undermine and reverse the Brexit vote.

On Friday, they succeeded. This was a Remainer coup. Mrs May is insisting that her package would deliver Brexit. This is false.

It would leave the UK tied to a number of EU policies and thus unable to make policy in such areas for itself; it would destroy the UK’s ability to negotiate trade deals in the best interests of the nation; it would leave the UK still to some extent under the thumb of the European Court of Justice. Thus the UK would remain deprived of national sovereignty and the power to govern itself as an independent nation.

Moreover, Mrs May’s package would leave the UK in a worse position even than as a member of the EU. For under her terms, the UK would be bound by a number of EU rules and policies but with no say over them at all.

(Indeed, some Remainers fantasise that engineering just an outcome would fuel pressure for a second referendum and a vote to stay in – ignoring the fact that there can be no return to the status quo ante, since the triumphant EU would insist that, in order to remain, the bloodied UK would have to abolish the pound and join the Euro.)

Does Mrs May understand this? Is she Machiavelli in kitten heels – or is she just too narrow-minded, too incapable of grasping any big idea other than the survival of her government, too personally defensive, too psychologically clenched against viewpoints that challenge her own to be remotely competent?

The idea that problems such as the Northern Ireland border are otherwise simply insuperable is absurd. The fact remains that Britain held – and still holds – the major card in its own hands. The EU needs Britain more than Britain needs the EU.

That doesn’t mean there are no downsides from leaving: of course there are.

But a real leader would have said to the country something like this: “Look, there are going to be hiccups and problems and we may well have to bite on a few painful bullets. But the upside is that, overall, our economic future is very bright indeed if we make the cleanest possible break; and politically, we will once again be independent and in charge of our own laws and destiny. And for that most precious of all gifts we will pay a price if we have to, just as this country has always buckled down and paid a price for liberty – which is really what Britain is fundamentally all about”.

And to the EU, such a real leader would have said something like this: “The people of Britain have spoken and we are now leaving you. We will not seek a deal; we will take our chances with WTO rules and tariffs because even with all that we’ll still take you to the economic cleaners; but if you would like to offer us a deal, you’ll find our door is always open because we’ll always be your friends. Good bye!”

In the event, Mrs May’s negotiating position was beyond risible. She dismissed the innate strength of her country relative to the EU economic and political basket-case and instead – incredibly – approached the (possibly terminally) stricken Brussels behemoth as a nervous supplicant. Unsurprisingly, the EU promptly punched Britain in the solar plexus and is now preparing to kick it in the head.

As for the Brexiteers in Cabinet, they have all been revealed as beyond pathetic. According to media reports, as Friday’s marathon meeting wore on – after a brief, flailing and juvenile eruption by Boris Johnson – they all ended up supporting this appalling travesty.

It is hard to avoid the conclusion that they were all measuring their leadership ambitions against each other and so collectively were unable to present a united front. It was self-interest first, national interest last. Not one of them has resigned. “Friends” of Boris Johnson say he can do more to fight for Brexit by staying within Cabinet. Really? He has now put his name to Brexit’s betrayal. He will not be forgiven.

All these people have now shown themselves unworthy of leading their party.

They do not deserve to be in office; the Conservative party no longer deserves to be in government.

People are rightly worried that Jeremy Corbyn, Labour’s far-left leader, may become Prime Minister. That fear has helped Mrs May fight off any possible challengers. Jeremy Corbyn has been her human shield.

But here’s the thing. If the choice is to be between Mrs May’s Brexit betrayal and a Corbyn government, many may well now be thinking they’d either actually prefer Corbyn, who at least remains personally hostile to UK membership of the EU – or far more lethally, that there’s no longer much point in trying to stop him.

Because if Britain really is to remain tied to the EU, the UK parliament will increasingly become no more significant than Westminster regional council within the Brussels empire. So who cares if Corbyn becomes Prime Minister, this thinking would go, since the EU won’t let him do half of what he wants to do anyway?

And that’s the worst danger of all from this debacle: that the British people will simply lose faith not just in the wretched Conservative party but in the democratic process which will become increasingly meaningless.

That said, this thing is far from over; indeed, it may have only just begun. For if the EU sticks to its previous intransigence, it will reject the British government’s offer and insist that it makes further concessions to the EU’s rules which even Mrs May dare not make.

Which means, prepare now for “no deal”. Which Britain should have done right from the start.

But however this finally ends, Mrs May and her craven colleagues have done real damage – to themselves as politicians, to the Conservative party and to democracy itself.

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The Iran opportunity and European infamy

A senior Iranian official has accused Israel of stealing its clouds. Yes, you read that right. Clouds as in the sky.

Brigadier General Gholam Reza Jalali, head of Iran’s Civil Defense Organization, has said: “Israel and another country in the region have joint teams which work to ensure clouds entering Iranian skies are unable to release rain. On top of that, we are facing the issue of cloud and snow theft.”

His evidence? A survey showing that all mountainous areas higher than 2,200 meters between Afghanistan and the Mediterranean were covered in snow except for Iran.

Case closed, eh? Although the general’s claim was refuted by the head of Iran’s meteorological service, it fits the regime’s generally paranoid and deranged statements about, and threats against, Israel and the Jews.

Such lunacies should constitute a red flag against having any dealings at all with such people. Yet Britain and the EU continue to insist on treating them as rational negotiating partners instead of the genocidal religious fanatics that they are.

This illustrates a refusal to acknowledge the real point about antisemitism: that it is not just a prejudice but a marker of paranoid derangement and an eclipse of reason.

Britain and the EU regard the Iranian fanatics as people with whom they can to do business – both diplomatic and economic. But the only reasonable, moral and self-defense position is to regard them as a regime beyond the pale which must be destroyed.

No one wants war; the aim should be to prevent the terrible war that is almost inevitable unless the Iranian regime is removed. The best and most likely way to achieve this is for the people of Iran to rise up against it.

For the last few months, that has been happening. From December to January, nearly 5,000 people were arrested during protests in which at least 21 people died.

Last week, thousands demonstrated in Tehran’s Grand Bazaar with unconfirmed reports that four protesters were killed.

The unrest is driven by Iran’s crippling economic conditions. Unemployment is soaring as Iran’s currency, the rial, has plummeted. Khorramshahr in southwest Iran has been without potable water for more than two weeks.

The result is popular demand for an end to the regime itself. In stark contrast to uprisings that have erupted in the Arab world, the Iranian demonstrators support Israel and the West. The Iranian regime regularly pronounces “Death to Israel.”

The protesters have been shouting instead “Death to Palestine” and demanding that the regime stops funding Hezbollah, Hamas, Syria’s President Assad and Palestinian Islamic Jihad.

Suddenly, what seemed impossible is now being talked about as a distinct possibility: that a regime which until now has been strutting across the region imposing increasing control may in fact collapse.

So what’s changed? In two words: President Trump. By withdrawing the US from the Iran nuclear deal, he has changed the entire power dynamic within Iran and in the region. Now sanctions have been reimposed and are about to bite far more severely.

With tacit backing by both the US and Russia, Israel has been attacking Iranian military assets across Syria.

The game is now afoot to achieve what until now no one contemplated as a serious possibility: to pry Russia away from Iran and squeeze Iran out of Syria, thus smashing the fulcrum of Iranian power in the region.

While the Left in Britain, Europe and America froths and fulminates that the forthcoming US-Russia summit proves that US President Donald Trump is in the pocket of Russia’s President Vladimir Putin, a bargain is being developed between them which may deal a fatal blow to Iranian power.

Russia is coming to realize that, having used Iran to gain a foothold in the region, its asset is turning into a liability. That’s because the regional stability Russia now needs is actively threatened by the growing reality of Israeli war in Syria against Iran.

So Russia is throwing Iran under the bus.

That’s why it sided with Saudi Arabia over increasing oil production to restrain oil prices which can cripple Tehran. Russia has previously said Iran must pull out of Syria once the war there is over.

Now Putin reportedly wants to strike a broader deal with the Trump administration.

This would apparently involve the US pulling its troops out of Syria while Russia pushes Iran at least away from proximity to Israel, if not out of Syria altogether.

Clearly, much remains murky and alarming about such a complex dance of deterrence.

America’s ultimate strategic goal, however, is clear: to weaken, stymie and ultimately destroy the Islamic regime in Iran.

Yet, incredibly, Britain and Europe are still attempting to support it. This weekend, the five powers still party to the nuclear deal – Britain, France, Germany, China and Russia – are meeting Iran’s foreign minister Mohammed Javad Zarif in Vienna to discuss how it might continue without US support.

This, even though earlier this week, six people were arrested in Belgium, France and Germany, including an Iranian diplomat posted to Vienna, over an alleged Iranian terrorist plot to attack an Iranian-opposition rally in a Paris suburb this weekend.

Britain, France and Germany may realize very soon that they will need to choose between trading with Iran and trading with the US. The State Department has threatened to punish sanctions violators, while major European companies such as Peugeot, Siemens and Total are reportedly preparing to halt their dealings with Tehran.

Both Trump and Israeli Prime Minister Benjamin Netanyahu have made a point of telling the Iranian people that they have American and Israeli support and that the fight by the US and Israel is merely against the regime that oppresses them.

Iran’s brave dissidents desperately need Western support, both material and psychological, if they are to continue pitting their lives against the regime. Yet, appallingly and shamefully, their protests are receiving virtually no coverage at all in the British or American media. Instead of the wider support needed to help them bring down the regime, they’re being ignored.

Trump is trying to do something which for the first time looks like it might just be possible: to neutralize the Iranian regime, and thus not only rid the world of its most deadly threat to life and liberty but make the defeat of other malign actors such as North Korea more likely.

It may not work. But whatever happens, the role being played by Britain, France and Germany and the decadent Western media will surely be bracketed by future historians with Neville Chamberlain’s appeasement of Hitler in the annals of political infamy.

Jerusalem Post

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The legacy of Polish Holocaust denial

The legacy of Polish Holocaust denial

The controversy over Poland’s role during the Holocaust has exploded yet again. Remarkably, a joint statement issued by the Polish and Israeli governments intended to draw a line under the row has been denounced by Yad Vashem. Embarrassingly for Israel, it claims that the statement hailed by Israeli Prime Minister Netanyahu as “safeguarding the historic truth about the Holocaust” includes “grave errors and deceptions” and contains “highly problematic wording that contradicts existing and accepted historical knowledge in this field”.

By coincidence my novel, The Legacy, deals directly with this very issue. You can read about the novel here and order a copy here and here.

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The “oppressed” are expert at discrimination

The “oppressed” are expert at discrimination

In one sanctimonious leap, “safe spaces” are morphing into prejudice in reverse.

Such “oppressed” groups claim that they are discriminated against by being treated as somehow separate from mainstream society. So in response they are discriminating against and separating from mainstream society.

They way they are treated, they say, justifies their treating others in an identical fashion. Of course, it does nothing of the kind. Their behaviour negates instead their claim to be unjustly treated. Rather than helping promote a tolerant, inclusive society, they are creating ghettos and social division. Banning people because they are white, male or have other distinguishing characteristics is to legitimise social exclusion on grounds of identity.

To read my whole Times column (£), please click here.

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Time to leave? The question the Jews of Britain and Europe must ponder

These are alarming times for Jews in Britain and Europe.

The British Labour Party is convulsed over the realization that it is riddled with antisemitism. Jeremy Corbyn, its leader and a friend to Hamas, has been exposed as belonging to Facebook groups hosting claims that the Jews were behind ISIS and 9/11, that the Rothschilds controlled the world’s finances and other such paranoid theories. The backwash from the exposure of these groups revealed a tsunami of anti-Jewish insults, smears and libels by Labour supporters. Corbyn’s responses, often truculent and insulting to the Jewish community, have only deepened the crisis.

Last year, according to the Community Security Trust, saw the highest number of antisemitic incidents in Britain since the CST started recording such data in 1984. In the past, surges in these incidents had occurred in response to the reporting of Israeli military action. That’s disturbing enough. But what was more disturbing here was that this record surge had occurred in the absence of any such Israeli activity.

Worse is happening in mainland Europe. In Paris, an 85-year-old survivor of the Shoah, Mireille Knoll, was stabbed to death and her body burned by a young Muslim. Last year, a man shouting “Allahu akbar” beat up Jewish schoolteacher Sarah Halimi and threw her to her death out of her Paris apartment window. In January, a teenage girl in the Paris suburb of Sarcelles wearing the uniform of her Jewish school was slashed in the face with a knife. Later that month, an eight-year-old boy was beaten in the same area because he was wearing a kippah. In February, two Jewish men in Paris were attacked with a hacksaw amid a volley of Jew-hating abuse.

In Amsterdam, a kosher restaurant long targeted for attack had its windows smashed in March by a man holding a Palestinian flag and shouting “Allahu akbar.” Holland’s chief rabbi says that, on the street, curses or taunts of “dirty Jew” are now quite normal. At the beginning of Chanukah last year, two Syrians and a Palestinian firebombed a synagogue in Gothenburg, Sweden. A few days later, a Jewish cemetery in Malmö was attacked. In Germany, the Israeli flag has been burned and Jewish pupils bullied by Arab schoolmates. And so on and on.

In May 2017, the Pew Institute conducted a survey of 2,000 residents in each country in Eastern and Central Europe. Twenty percent of respondents said that they didn’t want Jews in their country, and 30 percent didn’t want them as neighbors. In Romania, 22 percent wanted to revoke rights of citizenship for Jews, and 18 percent of Poles said the same. Across Europe, nationalist parties, some with disturbing antisemitic echoes and histories, are rising.

And, so, many Jews are asking: Isn’t this 1933 all over again? Or the Weimar Republic, which enabled the rise to power of German Nazism? Isn’t history just repeating itself?

Well, yes, and no. Yes, we can all hear the unmistakable echoes. In particular, we can recognize the refusal once again to acknowledge the true nature and extent of a gathering threat, not least among Jews themselves.

But there are certain key differences. Nazi Germany involved a state policy of genocide. Today, European governments may be ineffectual in resisting Islamist extremism or defending their Jewish populations against the broader Jew-hatred coursing through their societies—but this time most of the people of Britain and Europe are passionately opposed to what they also see as a threat to their own way of life from Islamization and the erosion of national boundaries. They are passionately committed to upholding Western values, human rights and one law for all.

There are three different sources of antisemitism in Britain and Europe: on the left, on the right, and in the Muslim community. All these threats to the Jews are connected to one another. All are rooted in threats to Britain and Europe. All are creating a perfect anti-Jewish storm.

THE THREAT FROM THE ISLAMIC WORLD

The threats to Britain and Europe are coming both from within and without. From without, they are coming from Islamism and Islamization. From within, they are coming from an anti-Western view of the world that also refuses to correctly identify the Islamist threat from without and combat it.

The nature of the Islamist threat takes several forms. There are the constant eruptions of terrorist violence. The vast majority of terror attacks in Britain and Europe is the work of Islamic extremists. Intelligence officials say that 23,000 jihadists who pose some degree of terrorism risk are living in Britain, with 3,000—only!—under investigation or active monitoring.

There’s sexual violence. Britain has lived through grooming and pimping gangs, overwhelmingly composed of men of Pakistani Muslim heritage targeting young white girls as “trash.” Germany and Sweden have seen a huge rise in rape and sexual violence associated with Muslim migrants.

Then there’s the cultural attack, as in the “Trojan Horse” infiltration of schools in Birmingham by Muslim extremists aimed to force them to confirm to Islamic precepts. Similar infiltration of Labour Party constituencies, as attested by one or two brave Labour MPs, aims to force the party to conform to Muslim demands.

Despite all this, the officials governing Britain and Europe refuse to acknowledge that the Islamist threat is based on religious fanaticism—on an interpretation of Islam that although not supported by many Muslims is nevertheless dominant within the Islamic world. Instead, identifying these threats as rooted in Islam is damned as Islamophobic.

Since any criticism of Islam is deemed Islamophobic, there’s a refusal to acknowledge the enormous problem of Muslim antisemitism. Yet this is one of the principal drivers of the Islamist threat to the West. Islamist ideologues and jihadists believe that modernity is a threat to Islam that must be eradicated and that the Jews are the demonic creators of modernity.

Paranoid conspiracy theories and other deranged falsehoods about Jews pour out of the Islamic world in an unstoppable torrent. Opinion polls consistently show that hatred of Jews is far more prevalent among Muslims than in the wider community. The Muslim British journalist Mehdi Hasan wrote in 2013: “Antisemitism isn’t just tolerated in some sections of the British Muslim community; it’s routine and commonplace…. It’s our dirty little secret.”

CST figures suggest that a disproportionate number of Muslims are involved in anti-Jewish attacks. Out of 420 antisemitic offenders in 2017 of whom an ethnic description was obtained, 238 were described as white Europeans, 77 as black, 75 as Asian, and 30 as Arab or north African. Muslims are officially estimated to constitute just over 4 percent of Britain’s population. Although it’s not possible to be exact, the proportion of Muslim offenders in the CST figures would seem to be several times more than 4 percent.

It’s apparently Islamophobic to draw attention to these things.

We have to be very careful not to promote true prejudice against Muslims, just as we would be regarding any other group. Many Muslims are opposed to Islamist extremism, and Muslims are most of its victims.

But there is enormous pressure not to acknowledge the threats to life and liberty that are widespread within the Muslim world, including antisemitism. Anyone who calls out these threats is denounced as a bigot. But those who issue such denunciations themselves help perpetuate Muslim Jew-hatred.

The reason no one is allowed to talk about Muslim antisemitism is the cultural prism through which left-wing progressive circles view the world. And this represents the threat from within.

ANTI-WEST LEFT-THINK

This left-wing prism is responsible for eroding Western values, undermining the defense of Britain and Europe against jihad, and exposing Jews to attack. These are all connected. You cannot understand the resurgence of paranoid, unhinged antisemitism unless you understand that the West has been tearing up the very idea of reason itself along with the moral codes at the heart of Western civilization.

Leftists view the West as the historic and current oppressor of the entire developing world. This Western cultural self-hatred has a complex history, at the root of which lies the erosion of biblical morality by the tides of secularism. But in my view, the key political driver of this cultural demoralization was the Holocaust.

It simply smashed to smithereens Europe’s belief in itself as the exemplar of superior cultural values. The Holocaust was conceived and directed, after all, in the heartlands of high European culture, the supposed crucible of enlightenment and rationality. It wasn’t just the Jews who died in the extermination camps: It was also the West’s (or Europe’s) concept of itself as moral and rational.

Lethally demoralized, Western cultural elites took an axe to the building blocks of their civilization: an axe to education as the transmission of that civilization, an axe to the traditional family as the best way to generate emotionally resilient inheritors of that civilization, and an axe to national identity as the political expression of that civilization.

Policies and laws passed by national governments now had to take second place to transnational institutions, such as the UN and EU, and legal frameworks, such as international human-rights law. With no Western nation or values thought worthy of defending to the death, wars to establish justice and freedom were deemed inferior to conflict resolution, negotiation and peace processes. Between God and the devil, Western liberals would split the difference and broker a triumphant compromise.

National identity was replaced by factional interest groups. Morality was replaced by a view of the world based on competing power blocs. Biblical morality was replaced by man-made, universalizing ideologies such as moral and cultural relativism or multiculturalism.

Every one of these ideologies was anti-Judaism or anti-Israel. Jews, after all, are always in the way of any universalizing ideology. We are the people of one book alone and of one land alone. We are ha’ivrim, the people from the other side—the people who have always dwelled alone. This is something many diaspora Jews try to deny. It is something our postmodern culture will not accept. And it is something that has helped fuel the madness over Israel.

ISRAEL OBSESSION

It’s a commonplace that the hatred of Israel on the left was caused by the Israeli David supposedly turning into Goliath. That, though, doesn’t begin to explain it.

Anti-Israelism has exactly the same characteristics that make traditional antisemitism a unique derangement. Both are based entirely on falsehoods and malicious distortions; both single out Israel and the Jews for double standards and treatment afforded to no other nation, people or cause; both accuse Israel or the Jews of crimes of which they are not only innocent but are in fact the victims; both dehumanize Israel or the Jewish people; both impute to Israel or the Jewish people demonic global conspiratorial power; both are utterly beyond reason.

Yet on the left, this connection is vehemently denied. The treatment of Israel is described as mere “criticism” of its behavior. But it isn’t criticism at all. Criticism is rational. This is irrational and malicious demonization and delegitimization of Israel and of Zionism. Zionism is merely the right of the Jewish people to self-determination. This anti-Zionism singles out the Jews alone for the destruction of their nationhood.

The distinction between anti-Zionism and antisemitism is fake. As Ruth Wisse has observed: “Antisemitism and anti-Zionism combined into the modern phenomena of ‘antisemitism / Zionism’can best be described as the organization of politics against the Jews.”

WHY LEFT-WING ANTISEMITISM?

This is the new antisemitism. Trying to understand it, however, is like peeling a rotten onion: Beneath every rancid layer lies a yet more rancid layer.

The outer, most visible layer is fairly obvious. The left in general now subscribes to beliefs once considered extreme. It has absorbed the Marxist concept that everything has to be understood in terms of political power. The world is divided into the powerful and the powerless. Those with power can never be good; those without power can never be bad. Those who make money have power over those who don’t make money. Those who make money are bad; those without money are good. Jews make money. Therefore Jews are powerful and bad.

The 19th-century German antisemite Wilhelm Marr, who is credited with inventing the term, ascribed to the Jews the attribute of global power. Israel — which isn’t really Western at all — is seen as menacingly powerful. That is its crime, and that is also why anti-Israelism is umbilically connected to antisemitism. Even though Jews are now equipped with military power solely to defend themselves against annihilation, this breathes life into the paranoid delusion that the Jews are so powerful that they pose a threat to everyone else.

The next layer of the onion is even more rank. This is that — as the black joke that isn’t a joke at all would have it — the West will never forgive the Jews for the Holocaust. This isn’t just because of the terrible legacy of guilt carried by the West. It is because of jealousy.

What on earth about the Holocaust can provoke such jealousy? It gives the Jews what many in the West perceive as the trump card of victimhood.

I have often heard the Jews accused of sucking up all the victimhood in the world and leaving no room for anyone else to be a victim. What does this nonsensical claim mean? It can only mean that the enormity of the crime against the Jews was so vast that people think any victim status claimed by anyone else is rendered minor by comparison and thus devalued.

But why do these people want to be considered victims in the first place?

It’s because victimization gives them a moral free pass. The belief is that if you are a victim, you can’t be held responsible for your own misdeeds. You can never be a victimizer; you can never be a racist; you can never be a genocidal psychopath.

And so no one in the developing world can ever be a victimizer, a racist, or a genocidal psychopath. They can only ever be the victims of such people. The Palestinian Arabs can only ever be their victims. And as such, the Palestinian Arabs and the rest of the developing world obtain a get-out-of-jail-free card for everything—including genocidal mass murder.

So now every group that doesn’t conform to the left-wing definition of power—deemed to be pale, male, heterosexual, Western—claims victim status and that get-out-of-jail-free card. That’s our victim culture. It now drives all before it. But Jews can’t be victims because, as everyone knows, they emerged from the Holocaust to run the financial world, the media, the law, the arts, American foreign policy. So the Jews are all-powerful, aren’t they?

Yet Jews are in fact the most persecuted people on earth, who even now have to sacrifice their children in Israel to defend themselves year in, year out against genocidal fanatics bent on their extermination. So how can this not be recognized?

And here’s where we peel down to the most sickening layer of the onion. For the real reason for the burning resentment against the Jews over their status as supreme victims is that it’s thought the Holocaust enabled them to get away with it.

Get away with what, exactly? Why, all the stuff that antisemites think about the Jews, that they are rapacious and disloyal and grasping and are out to control the world. In other words, such people think these antisemitic libels are actually true; but the Jews’ status as ultimate victims has silenced people who can no longer utter them. And that’s resented as unfair.

It is this reaction by antisemites to the Holocaust, no less, that has helped create our invidious victim culture. People thought that if the Jews had got a free pass for their misdeeds, then so too could any group that claimed to be victims. The difference, though, is that, while victim groups thus claim impunity for acts of irresponsibility, abuses of power or other bad behavior, the Jews are by contrast wholly innocent of the crimes that antisemites so falsely lay at their door.

Thus, victim culture is innately anti-Jew. But victim culture lies at the very heart of progressive left-wing thinking.

Moreover, support for Palestinianism is also innately anti-Jew. So-called Palestinian identity is a fiction invented to exterminate the uniquely historically and legally valid Jewish claim to the land of Israel. Mahmoud Abbas, viewed by the Western left as a moderate entitled to a state, has a doctorate in Holocaust denial, explicitly venerates the wartime Palestinian Nazi-ally Haj Amin al-Husseini, and uses his media outlets to transmit Nazi-style demonization of the Jews.

In the week of Holocaust Memorial Day, PA TV misrepresented a photograph of concentration-camp victims as Arabs and wrote that Jews burned Arabs in Nazi ovens. Every single person who supports the Palestinian cause connives at promoting this murderous anti-Jewish filth.

So why should Labour Party members who support the Palestinian agenda of Holocaust denial, attacks on Judaism, and unhinged conspiracy theories about Jewish power now be so shocked that other Labour Party members are coming out themselves with Holocaust denial, attacks on Judaism and unhinged conspiracy theories about Jewish power?

THE LEFT CAN’T ADMIT ITS ANTISEMITISM

The fact is that the new antisemitism is a seamless robe of Israel-hatred and Jew-hatred. People deny this because they think of antisemitism as only against Jews as people. They can’t recognize it when it’s against the collective Jew in the State of Israel.

Those on the left also believe that they embody virtue so they can’t possibly be antisemitic. Only the right can be anti-Jew. This is historically and philosophically illiterate. Both left and right have the same parent in the counter-Enlightenment and German romanticism. This spawned in due course both Communism and Fascism. Karl Marx wrote: “What is the worldly religion of the Jew? Huckstering. What is his worldly God? Money.”

Left-wingers, however, are constitutionally unable to accept that they can be racist or antisemitic because such an admission would undermine their self-image of unimpeachable moral purity and go right to the root of their entire political and moral personality. So they shelter behind the fiction that hating Israel is decent and moral while hating Jews is beyond the pale. We can hear this self-serving solecism from some who claim to have seen the light about Labour Party antisemitism, and who say they now realize they were wrong to blame all Jews for the crimes of Israel.

Anti-Israelism is inescapably anti-Jew. Yet anti-Israelism is the default position in progressive circles. So even if Jeremy Corbyn were deposed tomorrow, antisemitism on the British left would not disappear. The symbiosis between hatred of Israel and hatred of Jews is now part of the DNA of the progressive world.

ISLAMIZATION AND NATIONALISM

Because those progressives believe that antisemitism is to be found only on the nationalist right, the very same left-wingers who obsessively anathematize Israel, support its Arab would-be destroyers and are struck dumb about Muslim antisemitism in Europe strike a pose of pious concern about antisemitism among European nationalists. Yet although some of those nationalists do have troubling antisemitic or fascist overtones, Jews have much more to fear from those they are trying to stop.

A German government study published in January found that male migrants may be responsible for more than 90 percent of a recent increase in violent crime. In Sweden, a leaked report last year revealed that there were now 61 Islamic “no-go zones” where Islamist extremists have taken over. Sweden’s National Police Commissioner, Dan Eliasson, pleaded, “Help us, help us!”— warning that the police could no longer uphold the law.

Across Europe, the entire political establishment has for years connived at or turned a blind eye to the mass immigration of mainly Muslim migrants and the steady march of Islamization — the evidence for which is demonstrated not least by the attempt to criminalize as “Islamophobic” any criticism of the migrants or concern about the resulting erosion of Western culture.

As a result of this political and cultural disenfranchisement, the people of Europe are now turning to parties outside the political establishment that promise an end to uncontrolled mass immigration. For this, such voters are dismissed as bigots and xenophobes. The aggressive or antisemitic behavior by many migrants is ignored or denied.

Instead, those who want to stop this influx are themselves demonized as racists and antisemites. The president of the European Jewish Congress, Moshe Kantor, says: “Right-wing populist parties are resorting to both antisemitic and anti-immigrant discourse to gather political support.”

Now, there’s no doubt that there is an enduring strand of virulent, indigenous antisemitism in Eastern Europe. Research suggests that almost one in five Hungarians openly demands the emigration of the Jews. In Poland, the government is intent upon denying its antisemitic past. A new law criminalizes anyone who accuses Poland of having been complicit in the Holocaust. (As it happens, I have written a novel, The Legacy, which has just been published and which deals with this very issue — and which even features a walk-on role for the Simon Wiesenthal Foundation.)

Those who deny their antisemitism are doomed to repeat it. So it is in Poland. Antisemitic outbursts in the Polish media and among politicians have significantly increased since the law’s passage last February, with wild claims of Jewish conspiracies and comparisons of Jews to animals.

So traditional, old-style Jew-hatred is unfortunately still very prevalent in countries with a terrible history of persecuting the Jews. Some of the new ultra-nationalist parties coming to the fore in Europe, such as the Austrian Freedom Party, Golden Dawn in Greece or Jobbik in Hungary, are openly antisemitic or have Nazi pasts. Others, though, merely want to restore and defend national identity, democratic national sovereignty and Western cultural norms and practices against creeping Islamization. Yet all parties committed to the defense of Western cultural norms and national identity in Europe are being equally damned as racist, antisemitic and Islamophobic.

BRITISH JEWS

In Britain, the government’s failure to identify correctly and tackle Islamist extremism is turning the Jewish community into collateral damage. The refusal to acknowledge that the problem of Islamist extremism is particular to Muslim culture — although many Muslims are opposed to such extremism — has meant that the government strategy for dealing with it involves imposing equal restrictions on all religious practices it believes lie outside the liberal consensus, such as the refusal to teach sexuality in ultra-orthodox Jewish schools.Throughout Europe there are growing pressures to ban circumcision and ritual slaughter. This liberal secular intolerance poses a real threat to religious Jewish life.

British Jews themselves, however, are also reluctant to call out Muslim extremism. Recently the chief rabbi, Efraim Mirvis, broke cover to complain that Muslim leaders were silent in the fight against rising antisemitism. “The threat to Judaism and Jews from the world of Islam is one which can only be cured from within the world of Islam,” he said. Quite right. But Jewish leaders themselves urged the British government under Prime Minister David Cameron (to his astonishment and irritation) to admit many more Muslim migrants; and they appear more anxious to make common cause against Islamophobia and xenophobia than to bring the full extent and nature of Muslim antisemitism into the open.

More dangerous still, Jews on the left who promote multiculturalism and campaign loudly against Islamophobia are themselves helping to stoke antisemitism. People who are angry and resentful at the way mass immigration is destroying their national identity bitterly resent being told by Diaspora Jews who have their own potential refuge in Israel that it’s racist to oppose multiculturalism. Not only is it dangerous for Jews to oppose Europeans’ pursuit of their own national identity. It’s morally wrong. We Jews have ours. Why can’t they have theirs?

In Britain, most Jews voted against Brexit. They are frightened by assertions of national identity. They think it leads to nationalism, and that means antisemitism. They think Europe protects against antisemitism and that Brexit is motivated by nationalism. Haven’t they noticed that the rise of the ethno-nationalist groups in Europe that frighten them so much has taken place under rule by, and precisely because of, the EU?

Jews are protected only when a culture feels confident and strong. Which is why, in fact, Brexit offers a sliver of hope.The revival of British national identity may, over time, see off group rights and identity politics. Greater cultural and national confidence should mean more tolerance of Jews, not less.

THE LOST SOUL OF EUROPE

Why is antisemitism on the rise in the West? Broadly because the West is in trouble. And a society in trouble always turns on the Jews. So much general hatred and irrationality now course through the West. Antisemitism, though, is not just a prejudice or a species of bigotry or hatred. It’s much more than that. It represents a kind of moral and spiritual death.

Europe lost its soul in the Shoah: the soul that was created by Jewish Biblical precepts. Turning against itself, Europe has turned on the Jews.

Without its Christian base, the West is nothing. But Christianity in Britain and Europe lost its way a long time ago. Losing their faith, many Christian churches turned instead to social and political activism, liberation theology, and the radical Marxist analysis of the World Council of Churches. Those progressive churches have denied their Jewish parent. Embracing instead their Islamist assassin in the misguided hope of saving their flock, they are in the forefront of the charge against Israel. In the process, they are destroying themselves. But a society without a religious core rests on sand.

Many Jews, especially those on the left, see no problem with mass Muslim immigration except for Islamophobia. Such Jews are either indifferent to Israel or they believe many of the lies told about it. Indeed, tragically, many of the leaders of the new antisemitism are themselves Jews.

For all these members of the tribe, the idea that it may be time for the Jews to leave Britain is no more than paranoid hysteria. For other British Jews, though, the current situation is deeply, profoundly upsetting and lowering. The antisemitism is bad enough. But it’s not just the antisemitism that’s so devastating. It’s the reaction to those who call it out for what it is.

The same people who claim to see antisemitism in European populism or the political base of Donald Trump regularly accuse Jews of claiming antisemitism just to “sanitize the crimes of Israel” or “bring down Jeremy Corbyn.”

This reaction is worse, far worse, than the antisemitism itself. It’s worse even than indifference. For it imputes to the Jews malicious intent in claiming that Jewish people are being maliciously targeted. It says they are lying. It blames the Jews for their own victimization.

This reaction is the inescapable evidence that the Jews are being abandoned. Those of us who have loved Britain for its gentleness, its tolerance, its decency, its stoicism, its reasonableness and the dampness of both its weather and national temperament feel as if we have been orphaned. But maybe we were living all along in a fool’s paradise.

Some people think Europe is over, that the demographics are against it and that it will become a majority-Muslim culture in a few decades. My guess is that Europe won’t go down without a fight. If that happens, the Jews are likely to get it in the neck from all sides. Whichever way it goes, it’s not a pleasant prospect.

So is it time to leave? It’s very personal, and I wouldn’t presume to advise anyone what to do. I can only speak for myself and say that for some years now, I’ve been spending a great deal of my time in Israel. Because even with 150,000 Hezbollah rockets pointing at us from Lebanon, even with Hamas trying every day to murder us and even with Iran working toward its genocide bomb to wipe us out, Israel is where I feel so much safer and the air is so much sweeter, and it’s where Jews are not on their knees and where no one will ever make me feel I am not entitled to live and don’t properly belong.

Israel is where we have astonishingly renewed ourselves as a nation out of the ashes of the Shoah. Israel is where all those who want us gone meet their nemesis in the political realization of the eternal people. Israel is the ultimate, and ultimately the only, definitive and triumphant repudiation of antisemitism and the true vindication of the millions of us who perished in the unspeakable events that we memorialize on Holocaust Memorial Day.

Commentary*

*This article is based on the Simon Wiesenthal memorial lecture which I delivered in London on Holocaust Memorial Day.

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