Lawfare, McCarthyism, and the EHRC

Unpicking the legally flawed ‘Labour antisemitism’ report

As the initial uproar about the EHRC report begins to fade, Ammar Kazmi takes a critical look at whether the Commission’s findings of unlawful acts against the Labour Party were correct, and explores what the report’s legal and political implications could be.

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The need for an alternative legal perspective

On 29 October 2020, the EHRC published its long-awaited Report about ‘antisemitism’ in the Labour Party.[16] It was accompanied by sensational headlines — the Party was found to have committed unlawful acts of ‘indirect discrimination’ and ‘harassment’ related to Jewish race and religion under Jeremy Corbyn’s leadership. Alongside these findings were a panoply of recommendations by the EHRC, which the Party had already committed to implementing in full.

Failure to consider the Leaked Report

In April this year, Keir Starmer was hit by his first major scandal as Labour leader: the leaking of an 850-page dossier about the Party’s Governance and Legal Unit (the “Leaked Report”). The fallout from the leak occupied multiple news cycles, whilst unredacted details about the Party’s complaint processes were made available for all to see. Most shockingly, numerous private WhatsApp messages exchanged between senior former Party staff were revealed to contain repeated examples of intense factionalism, obstruction, and potentially racism.[20]

Ignoring the political context

The EHRC Report acknowledges that three investigations were launched in 2016 concerning Judeophobia allegations in the Party. However, the EHRC fails to identify the different findings of those investigations or consider the resulting debate, even though this debate provides essential political context.

‘Institutional antisemitism’, the IHRA, and determining what is ‘antisemitic’

It was not within the EHRC Report’s terms of reference,[34] nor indeed within the EHRC’s statutory powers itself, to draw conclusions about what is and is not ‘antisemitic’. The EHRC’s powers were limited to determining: (1) whether there had been any unlawful acts; (2) whether steps had been taken to implement the recommendations in various (previously mentioned) reports; (3) whether the Party Rule Book and disciplinary processes had enabled the Party to properly deal with complaints and apply sanctions; and (4) whether the Party had responded to complaints in a lawful, efficient, and effective manner.

Erroneous findings of unlawful indirect discrimination

The EHRC makes two findings of unlawful indirect discrimination by the Party.

Undermining human rights

The EHRC found that the Party committed ‘unlawful harassment through the acts of its agents in two of the complaints’ it investigated, concerning Ken Livingstone (former London mayor and National Executive Committee member) and Pam Bromley (former Labour borough councillor). The EHRC asserts that neither Livingstone’s nor Bromley’s comments were protected under Article 10 of the European Convention on Human Rights (or ECHR which, to avoid confusion with the EHRC, I shall refer to as “the Convention”).

Unlawful findings of harassment

In the alternative — even if the EHRC was correct in determining that Livingstone’s and Bromley’s comments were not protected by Article 10 of the Convention — I submit that there still should have been no findings of unlawful harassment, because the test for reaching such a finding was not met.

The Report’s political implications

In many respects, it makes little difference what the Report says. Its very existence will have broad political implications in much the same way as the IHRA ‘working definition of antisemitism’ has had. It is easy to read such documents in the abstract and to expect that they will be applied in good faith (and with the assumption that people have even read them). However, to believe this is to believe that the world is devoid of power relations. In reality, the very existence and prominence of such documents serves a political purpose and will likely be employed to achieve aims that many people may never even anticipate.

What now?

As mentioned at the beginning, the Party did not appeal the EHRC’s findings, nor did it challenge the EHRC’s requirement to draft an action plan to implement the Report’s recommendations. The Party agreed its first draft plan on 7 December 2020, just days ahead of the mandated deadline. Once that plan has been agreed with the EHRC, it will become legally binding.[91]

Notes

[1] Haroon Siddique, ‘Politicising the EHRC? Five controversial appointments’ The Guardian (30 November 2020) <www.theguardian.com/society/2020/nov/30/politicising-ehrc-five-controversial-appointments> accessed 7 December 2020.

Written by

Anti-imperialist political activist. Graduate in Law with Spanish and Spanish Law at the University of Nottingham.

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