Lawfare, McCarthyism, and the EHRC
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.
Following a series of scandals in recent years, the legitimacy of the Equality and Human Rights Commission (“EHRC”) lies in tatters — few people now have confidence in the statutory body to regulate equality law.
Credible evidence exists about the EHRC’s lack of independence from government; its multiple conflicts of interest; its selective approach to the enforcement of equality law; accusations of racist and ableist discrimination towards its own staff; alleged reprisals against two former commissioners for being ‘too loud and vocal’ about race; and even a recent parliamentary report finding that the EHRC ‘has been unable to adequately provide leadership and gain trust in tackling racial inequality’.
The Conservative government, moreover, is using the EHRC as a weapon in its attempts to reshape British culture. In recent years, the Conservatives have repeatedly stoked up ‘culture war’ controversies to sustain and expand their base by importing a US-style political discourse, with serious debates on policy being replaced by lurid sensationalism around Islam, Black Lives Matter, and an exclusionary idea of ‘British values’.
The EHRC’s role in this is not entirely new. Under New Labour, the EHRC helped to pave the way for this corrosion of public discourse. Trevor Phillips, the EHRC’s chairman, pushed hardline talking points about Muslim separatism during his time at the regulator. The New Labour darling also, in my view, served as a useful ally to those seeking to advance similar arguments directed at black communities. More recently, since his departure, Phillips has promoted Islamophobia denial on behalf of Policy Exchange, a pro-Israel think tank. As a result of making a string of Islamophobic comments spanning over a decade — even ‘boast[ing] about being labelled an “Islamophobe”’ — Phillips was suspended from the Labour Party earlier this year.
Under the Conservatives, the EHRC’s position in these culture wars has only grown in significance. As part of this cultural revolution, the Conservatives are placing their allies at the head of national institutions to promote a far-right worldview, and the EHRC has not been immune to this. The immigrant-bashing, Islamophobic journalist Douglas Murray, recently revealed that he had been approached to join the EHRC as a commissioner during the Cameron years.
Whilst Murray never actually joined the EHRC, the Conservatives have just appointed David Goodhart as one of its commissioners. Goodhart, as well as being a strident defender of the government’s ‘hostile environment’ immigration policy, is head of ‘demography, immigration and integration’ at Policy Exchange. Goodhart, like Murray, is also a frequent contributor to The Spectator magazine, which has published neo-Nazi apologia and several of whose writers tend either to dispute the existence of Islamophobia or argue there is ‘not nearly enough’ of it in the Conservative Party.
So, despite being a statutory body, there are ample reasons to be concerned about the EHRC — which is increasingly viewed as a politically motivated quango — and to not accept its findings or authority at face value.
The need for an alternative legal perspective
On 29 October 2020, the EHRC published its long-awaited Report about ‘antisemitism’ in the Labour Party. 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.
The McCarthyite political atmosphere surrounding the EHRC Report — exemplified in Jeremy Corbyn’s now-rescinded suspension and ongoing withdrawal of the Labour whip — has meant that there has been little in-depth scrutiny about the legal validity of the EHRC’s findings.
I submit that the Report suffers from a number of legal flaws, and it is therefore essential to explain their implications and what can be done about them.
There is an important distinction between the EHRC’s recommendations and its findings. Aside from the stipulation that the Party must implement an ‘independent’ complaint process, this article will not discuss the EHRC Report’s other recommendations in detail. Furthermore, this article will not seek to counter all of the EHRC’s findings. There are numerous legitimate examples of unfairness in the Party’s disciplinary procedures towards complainants (those who make complaints) and respondents (those who must answer complaints against them). There is a correct consensus that the Party’s processes are unjust, not fit for purpose, and in need of drastic change.
Instead, my submissions will centre on the EHRC’s legal flaws in general, and the findings of unlawful acts in particular — the central premise being that there was no basis in law on which to make any findings of unlawful indirect discrimination or harassment against the Party. I submit that the EHRC has erred in law through its: dismissal of vital evidence; conclusory legal analysis; politicised approach to defining Judeophobia; misuse of case law; and inability to meet the appropriate legal tests for its findings.
Officially, the EHRC’s legal analysis undoubtedly carries weight. The EHRC is a statutory regulator, advised by experts. However, despite its commanding appearance, the EHRC’s analysis is neither irrefutable nor legally binding. It is to be expected that regulators, like lawyers, will do their best to make convincing legal arguments in support of their desired outcomes. For that reason, there is no singular correct legal analysis; there are many analyses, and they can often be contradictory, especially in untested areas of law.
These analyses are only truly put to the test once they reach the Courts, at which point they have the potential to become law through written judgments. These create legally binding precedents (case law), the most authoritative of which are handed down in the Court of Appeal and Supreme Court. In other words, the EHRC’s legal analysis is not incontrovertible and it does not represent ‘the law’.
In fact, this very point was demonstrated when former Labour MP Chris Williamson publicly announced ahead of the Report’s publication that he was making legal submissions to the EHRC. According to Williamson, who was initially named in the confidential draft report, his submissions resulted in a potential finding of unlawful harassment against him being completely dropped. Furthermore, Williamson says that his submissions may have resulted in other changes to the Report, including several full pages being removed ahead of publication. This indicates that, in a battle of contradictory legal analyses, the EHRC must have determined that theirs fell short.
This also highlights that the Party itself likely did not seek to challenge the EHRC Report ahead of publication. Had the Party leadership done so, it could be argued that there would never have been any findings of unlawful acts. It will undoubtedly be of concern to many Party members that a rigorous defence was probably never made on the Party’s behalf due to political reasons, despite such a route being available.
Whilst the Maxwellisation process — allowing those named in the Report to respond to initial allegations — ended prior to publication, the Party still could have appealed the EHRC’s findings within six weeks following publication. However, quite predictably, Keir Starmer immediately ruled this out, despite the real possibility of overturning parts of the Report.
Even if an appeal by the Party would not have had that outcome, however, it would at least have resulted in a more considered Report, with more reliable findings. Yet, the Party leadership’s refusal to do so has given the EHRC free rein to overreach in its conclusions, safe in the knowledge that the Party would not subject the Report to rigorous legal testing. In effect, the Party’s new leadership has colluded in a legal process designed to produce findings that can be used for political ends against the previous leadership and its supporters.
So far, those who have been willing to engage in serious discussions about the EHRC Report have been few and far between. Yet, given the political context in which the Report has been released — and the implications that it has for the UK’s largest political party and for freedom of expression more widely — these issues must be properly debated.
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.
The Leaked Report also seemed to indicate that the Party’s former general secretary Iain McNicol — as well as former staff in the Governance and Legal Unit — may, until mid-2018, have purposely sat on Judeophobia allegations in order to damage Jeremy Corbyn’s reputation. Whilst much of the evidence contained in the Leaked Report was only presented in extracts, which were clearly editorialised by Party staff allied with McNicol’s successor Jennie Formby, it raised vital questions that should not be ignored. Moreover, there is also wider communications evidence underlying the Leaked Report, which remains unpublished.
Not all the complaints covered in the Leaked Report concern alleged Judeophobia. For example, Syed Siddiqi’s case demonstrates the Party’s politicised approach in handling Islamophobia complaints. Siddiqi, a Muslim on the left-wing of the Party, was suspended in 2017 after making a complaint about Islamophobia. Rather than thoroughly investigating his complaint, it was Siddiqi who was put in the firing line following interventions from right-wing Labour MPs, Wes Streeting and Mike Gapes, both of whom took high-profile roles in the political war on Corbyn and his allies. Siddiqi remains suspended three years later.
The Siddiqi case highlights an important problem that the EHRC has not considered, which is the suggestion from anti-racism activists that the Party’s response to Judeophobia allegations has created a hierarchy of racism inside the Party’s disciplinary procedures. In other words, Judeophobia allegations were treated more seriously than allegations of other forms of discrimination — especially Islamophobia.
The failure to consider the Leaked Report is an obvious example of the EHRC’s politicised approach to evidence gathering, which substantiates the argument that the EHRC had a predetermined, central narrative guiding its Report. I submit that the EHRC approached its investigation with a closed mind — simply turning a blind eye to whatever did not suit its narrative — whilst contorting any ‘evidence’ (however tenuous) towards it. This closely reflects both the Labour Party’s and the media’s approach to the ‘Labour antisemitism crisis’. Labour MPs, senior officials, and even many of those deemed to be on the left-wing of the Party, have for five years barely sought to resist even the most spurious allegations aimed at purging Corbyn allies from the Party.
Moreover, the EHRC asserts without further explanation that it ‘was not proportionate’ for it to require the Party to turn over the full communications evidence underlying the Leaked Report (thousands of internal Party emails, WhatsApp messages, complaint files, and so on) even though it was doubtlessly extensive and was compiled specifically for the EHRC. The Leaked Report made serious allegations against Party employees regarding their handling of Judeophobia complaints, the very subject matter of the EHRC’s investigation.
The EHRC seems to justify its decision to ignore evidence relating to the politicisation of complaint handling on the grounds that, regardless of who was in charge, the body dealing with these issues was still ‘the Labour Party’ and so it makes no legal difference. Yet, the EHRC Report included statements that placed responsibility on the ‘leadership’, finding it ‘hard not to conclude that antisemitism within the Labour Party could have been tackled more effectively if the leadership had chosen to do so’. From this lack of action, the EHRC infers that there was a ‘culture within the Party which […] at worst, could be seen to accept’ Judeophobia.
Moreover, Alasdair Henderson, the EHRC’s lead investigator for the Report, said on the day of the Report’s publication that, ‘Jeremy Corbyn is ultimately accountable and responsible for what happened at that time’. As to that question, the Leaked Report evidence is plainly material. In making a determination about which parts of the Party were responsible, the EHRC should have considered the evidence pertaining to that question.
According to English case law, a matter that is ‘so obviously material’ to a decision must be taken into account by the decision-maker. The test is one of Wednesbury unreasonableness: ‘if a matter is so obviously material that it would be irrational to ignore it’, then ignoring it is unlawful. For the reasons outlined, I submit that no reasonable decision-maker would have failed to take into account the underlying evidence behind the Leaked Report; the EHRC’s failure to do so was irrational and, hence, unlawful.
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.
In particular, the Chakrabarti Report concluded, among other things, that, ‘The Labour Party is not overrun by antisemitism, Islamophobia or other forms of racism’ and acknowledged that Judeophobia allegations could be used mischievously for political reasons. Similarly, Baroness Royall concluded that there was not ‘institutional antisemitism’ within Oxford University Labour Club. The Home Affairs Select Committee acknowledged that the extent of Judeophobia within the Party was a matter of significant debate, whilst also being critical of the Chakrabarti Report.
However, a reader of the EHRC Report would have no knowledge of this debate and the different approaches of the various reports. The consequence is that a reader would reasonably assume that all of the evidence received by the EHRC supported its consistent narrative about a supposed tolerance of Judeophobia in the Party (and within Corbyn’s Office in particular).
Yet, it is known that Jewish Voice for Labour (“JVL”) submitted extensive evidence in support of the alternative conclusion: that the failures demonstrated a politicised approach to complaint handling within the Party. This is reinforced by the Leaked Report, as addressed above.
Doubtlessly, in some cases, politicisation of the complaint system resulted in Judeophobia complaints not being investigated. JVL’s submissions also do not deny that there were genuine complaints of Judeophobia (although they make the point that ‘many antisemitism-related complaints […] were products of an organised effort to expose, solicit and submit such complaints’, which were ‘vexatious’ and ‘manifestly politically motivated’, ‘including by the Campaign Against Antisemitism’). However, in many cases, the investigatory process went beyond lawful bounds for political purposes. Despite citing JVL’s submission in its Report, this highly material evidence appears not to have been assessed at all by the EHRC.
Similarly, the literature cited by the EHRC is limited to that in support of its conclusions. No attempt seems to have been made to assess obviously material academic studies that take a contrary position. The EHRC cites and even summarises the work of Professor Alan Johnson, a senior fellow at the Britain Israel Communications and Research Centre (“BICOM”) lobbying group. As well as founding BICOM’s pro-Israel propaganda journal Fathom, Johnson has advised the British state on its Islamophobic ‘counter-extremism’ policy.
Meanwhile, the EHRC chose not to cite the work of other academics that would conflict with the narrative it adopted. The EHRC does not even mention the most authoritative book to date about the politicisation of the Party’s complaint system over the past five years: Bad News for Labour, by Professor Greg Philo, Dr Mike Berry, Dr Justin Schlosberg, Antony Lerman and Professor David Miller.
Therefore, the EHRC failed to even acknowledge the possibility of alternative explanations for the failings in the Party’s disciplinary processes, let alone objectively weigh the evidence in support of those alternative explanations. It is submitted, as above, that this political context is a matter that was ‘so obviously material’ to the EHRC’s investigation that its failure to take it into account was likely unlawful. I also submit that the EHRC’s failure to inform itself of relevant considerations would lead a right-thinking observer to conclude that the EHRC had approached its investigation with a closed mind.
‘Institutional antisemitism’, the IHRA, and determining what is ‘antisemitic’
It was not within the EHRC Report’s terms of reference, 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.
Of course, Judeophobic conduct may fall into one or more of these categories. However, it is patently not the role of a statutory regulator to publicly opine on what it considers ‘antisemitic’ according to its own definition, particularly when it has failed to even provide the definition of Judeophobia it used. The EHRC also does not explain how it reached its conclusions beyond vague assertions.
The issue of definitions is vital in questioning the EHRC Report’s legal weight, and the wider political motivations underlying its publication. In credible academic discourse on the subject, the word ‘Judeophobia’ is used to indicate hatred of Jews as Jews. The unhyphenated term ‘antisemitism’ — rooted in the propaganda terms ‘the new antisemitism’, ‘left-wing antisemitism’, and ‘anti-Zionist antisemitism’ — only came into common currency in the late-twentieth century. Its embryonic origins can be traced back to the aftermath of the 1967 Six-Day War and, in particular, the 1973 Ramadan War.
At the time, Israel’s Ministry of Foreign Affairs developed and promoted the concept of ‘the new antisemitism’ precisely for the purpose of fighting left-wing anti-Zionism, fearing that Israel was losing the public relations battle in Europe and the United States. Abba Eban, then Israel’s foreign minister, openly said that, ‘One of the chief tasks of any dialogue with the Gentile world is to prove that the distinction between anti-Semitism and anti-Zionism is not a distinction at all. Anti-Zionism is merely the new anti-Semitism’. The fact that the term originated from efforts (and continues to be used) to target left-wing anti-imperialists — through deliberately conflating anti-Zionism with Judeophobia — is a crucial fact underlying the accusations of Judeophobia levelled at Party members.
Moreover, ‘antisemitism’ is not a term contained anywhere in the Equality Act 2010 and has little legal significance; this is true also of ‘Islamophobia’ and other types of racism and prejudice. What is considered ‘racist’ is guided by a combination of subjective and objective considerations. This means that the process of defining such concepts is inherently, at least in part, a political act.
As such, the EHRC’s decision to reference the International Holocaust Remembrance Alliance (“IHRA”) ‘working definition of antisemitism’ and its accompanying examples must be explored, not least because the definition is a matter of significant controversy.
The IHRA definition has drawn harsh rebukes from many quarters, including legal experts, civil rights organisations, and scholars of both Jewish and Zionist history. Furthermore, many Palestinians have raised concerns that the definition attacks their right to fully articulate the nature of their oppression. Even Kenneth Stern, who was responsible for coming up with the definition’s initial draft, has repeatedly criticised the way in which it has been used. For similar reasons, the Home Affairs Report suggested amendments to two of the IHRA examples. Despite this, these concerns are barely acknowledged by the EHRC.
It looks as though the EHRC has reached its conclusions about harassment in a roundabout way. It states that it ‘may have regard to the [IHRA] working definition of antisemitism and associated examples’, but that its findings would have remained the same even ‘without reference’ to the definition. It appears that the EHRC is suggesting that its findings were objective, and not prejudiced by such considerations.
However, this suggestion is unconvincing, particularly when looking at some of the EHRC’s own determinations about what is apparently Judeophobic and what could constitute harassment. The influence of the IHRA on the EHRC’s conclusions is evident and is further substantiated by the fact that the EHRC does not properly consider the widespread opposition to the IHRA. It is unpersuasive for the EHRC to give the IHRA a place of primacy and, at the same time, to claim that it made no difference on their judgment either way. To fail to address and clarify questions of definition or to take such an extreme and partisan definition of Judeophobia at face value seriously undermines the Report’s credibility.
I would also suggest that the EHRC cannot draw broader conclusions about the extent of alleged Judeophobia within an organisation the size of the Labour Party based on the consideration of just 70 complaints, at least without proper statistical analysis. Moreover, many of these 70 complaints concerned especially high-profile cases, where irregularities were likely to be higher. Many of these cases were brought to the EHRC’s attention through the submissions of the Campaign Against Antisemitism and the Jewish Labour Movement, both of which had political motivations to present the most ‘damning’ cases of alleged failures.
It is simply absurd to take the findings of a highly skewed, unrepresentative ‘sample’ and to extrapolate these to generalised assertions about the wider membership. Yet, this is precisely what the EHRC does when it refers to a so-called ‘tip of the iceberg’. The EHRC does not, in many respects, take an evidence-based approach, seeming to rely instead on deference to its own authority to fill the gaps.
Moreover, the EHRC’s significant findings of unfairness towards respondents are also inconsistent with the narrative of ‘institutional antisemitism’ in the Party (although the EHRC did not make such a finding, despite misinformation to the contrary). Had such an accusation been true, one would have expected to see respondents being regularly given favourable treatment. Instead, the EHRC’s findings of unfairness towards respondents are extensive — concerning 42 out of 70 sample cases — compared with its findings of unlawful harassment against just two individuals.
Erroneous findings of unlawful indirect discrimination
The EHRC makes two findings of unlawful indirect discrimination by the Party.
The first finding: political interference
The EHRC outlines several examples of the Party’s ‘political organs’ (the General Secretary’s Office, the Party Chair, and the Leader’s Office) involving themselves in ‘politically sensitive’ disciplinary proceedings. Within the EHRC’s sample of 70 cases, it found 23 examples of alleged political interference. This ‘interference’ was supposedly carried out through two separate practices. Firstly, between March 2016 and May 2019, the EHRC found that the Party ‘leadership was involved in ‘politically sensitive’ complaints’. Secondly, between March and April 2018, it found that there was a ‘specific and formal practice of referring all antisemitism complaints’ to Corbyn’s Office.
The EHRC states that it ‘received evidence that antisemitism complaints were, and remain, the most common type of complaint received by the Party’. Therefore, according to the EHRC, political interference disproportionately affected such complaints, resulting in Jewish people being particularly disadvantaged by the complaint system. The EHRC found this to be indirectly discriminatory because, in its view, these practices, ‘gave rise to a reasonable perception [amongst those who made Judeophobia complaints] of different and detrimental treatment, and a risk that their complaint would not be handled fairly’.
There are several problems with this finding, which stem principally from the EHRC’s failure to properly compare the treatment of Judeophobia complaints with other types of complaint. The EHRC does not even properly consider the question of a ‘comparator’, although it makes a passing comment comparing the treatment of Judeophobia cases with those of sexual harassment. It is unclear — because the EHRC has not provided an explanation — why it was deemed proper to compare these two types of complaint. This is not a trivial issue; the selection of a correct comparator is vital in any examination of discrimination.
As outlined in Lady Hale’s judgment in Rutherford v Secretary of State for Trade and Industry, this task ‘is not straightforward’ and ‘involves defining the right groups for comparison’. Judge Eady QC elaborates on this in Pendleton v Derbyshire County Council: ‘care must be taken to ensure that the pool of individuals upon whom the effect of the [practice] is evaluated is populated by persons whose circumstances are the same or not materially different (emphasis added)’.
In a later judgment, Lady Hale explained that ‘identifying the [practice] will also identify the pool for comparison’. The practice identified by the EHRC is one of general political interference in ‘politically sensitive’ cases between 2016 and 2019, and Judeophobia complaints specifically between two months in 2018. Therefore, I would suggest that the initial consideration should have been to compare ‘politically sensitive’ Judeophobia cases with every other type of ‘politically sensitive’ case.
This is problematic, however, because the term ‘politically sensitive’ — as the EHRC correctly observes — is ‘subjective’ and ‘not likely to be capable of consistent definition’. Given the difficulty of determining what is a ‘politically sensitive’ case, it would have been logical, instead, to compare Judeophobia complaints to other complaints related to race and religion (after all, Judeophobia relates to these protected characteristics). This would involve comparisons with complaints of Islamophobia, anti-black racism, antigypsyism, and so on, as these would be more similar and less likely to be ‘not materially different’.
Yet, it seems that the EHRC has confused this comparative process. The Party’s handling of sexual harassment complaints might well be the gold standard of how to deal independently and fairly with complaints (I make no endorsement of that proposition), but that does not mean it is the right comparator for Judeophobia complaints. I submit that sexual harassment complaints are materially different to those related to Judeophobia.
In political parties, workplaces, and other organisations, it is now commonplace to have specific procedures for handling sexual harassment complaints, and there are now extensive resources and standardised procedures for doing so. Of course, organisations will also be expected to have rules and procedures for dealing with complaints related to other protected characteristics in the Equality Act 2010 — such as race and religion. However, defining what can amount to such discriminatory conduct is often much less clear. What constitutes Judeophobia, for example, is a matter of wide-ranging scholarly and political debate (as discussed above).
In addition to using a materially different comparator, the EHRC’s finding is also problematic due to its assertions about Judeophobia complaints, relying on unpublished ‘evidence’ to claim that they ‘were, and remain, the most common type of complaint’. Yet, the only definitive way to have determined the proportion of Judeophobia complaints, and the way with which they were dealt, would have been to undertake statistical analysis of the wider complaint system, and to have expanded the sample beyond Judeophobia cases.
Moreover, whilst it is not a conclusive method, ‘it is commonplace for […] particular disadvantage, to be established on the basis of statistical evidence’. Surely, to determine whether Judeophobia cases were the most common, the EHRC should have looked at data relating to every other type of complaint: Islamophobia, anti-black racism, antigypsyism, misogyny, ableism, LGBT-phobia, and so on. Evidently, the EHRC did not do this, which brings into question the veracity of the ‘evidence’ on which it has sought to rely.
Perhaps the most interesting example used by the EHRC in order to illustrate its point is Chris Williamson’s case, which was interfered with in order to keep him suspended and to escalate his case to the Party’s National Constitutional Committee for a full disciplinary hearing. That intervention was not made for Williamson’s benefit, but to his detriment. It is difficult to understand how such a decision worked to the disadvantage of those who made complaints against Williamson, which may have included some Jewish people (although the identity of the complainants has never been publicised by the Party).
Following on from this, the EHRC also does not properly consider the alternative view, which is that this ‘interference’ could have given precedence to ‘politically sensitive’ Judeophobia complaints. The extraordinary decision to re-suspend Williamson was surely an example of comparative advantage. One can observe, for example, complaint handling related to other Labour MPs — such as Islamophobia complaints against Jess Phillips and Sarah Champion, or antigypsyism complaints against Toby Perkins — which have not even resulted in suspensions, let alone re-suspensions. That the Party was prepared to re-suspend Williamson (and even later apply a second concurrent suspension) highlights how a ‘politically sensitive’ Judeophobia complaint was handled in a more serious way than complaints related to other types of racism.
The EHRC pre-empts this argument by stating that, ‘the inappropriateness of political interference in antisemitism complaints is not necessarily about the particular outcomes […] but rather the contamination […] of the fairness of the process’. However, I submit that an argument based entirely on ‘perception’ and a supposed ‘lack of confidence’ is, in light of what I have outlined, unconvincing and not robust enough to make a finding of indirect discrimination. The civil standard of proof that the EHRC uses does have a low bar; a finding can be made ‘on the balance of probabilities’ (i.e. if something is ‘more likely than not’). However, I submit that the EHRC has not even satisfied this threshold, and was only able to do so on its own terms through its use of an erroneous comparator and flawed approach to ‘evidence’.
The second finding: lack of adequate training
The EHRC proclaims that, ‘the practice of allowing untrained individuals to make important decisions in […] antisemitism complaints puts Jewish members at a particular disadvantage, because they are more likely to experience antisemitism and complain about it’. No one would argue against the proposition that Jewish people are more likely to experience Judeophobia. However, the EHRC does not provide evidence for Jewish people being more likely to complain about the issue. In fact, there is evidence that non-Jews submit a significant number of such complaints and perhaps even the majority of them.
One example, among many, is Labour Against Antisemitism (“LAAS”), which has been responsible for submitting hundreds of complaints to the Party. The founder of LAAS (Denny Taylor); its spokesperson (Euan Philipps); and one of its most prominent activists (Emma Picken); are all non-Jews. It must be questioned, then, on what basis the EHRC has concluded that Jewish members are more likely to complain about Judeophobia.
As has already been stated, this would surely require a thorough analysis of hundreds of Judeophobia complaints in order to determine the origin of each complainant. Yet, this itself would be challenging; the EHRC acknowledges that the Party did not even always keep a record of complainants, whose identities were presumably lost in the ether. This means that the EHRC’s conclusion about who is likelier to make such complaints appears to rely on assumptions and conjecture. Even more importantly, given the overwhelming volume of vexatious complaints made by politically motivated lobby groups, the EHRC’s failure to consider the identities of complainants raises fundamental questions about the Report’s credibility.
The EHRC also stipulates that training on Judeophobia must be ‘acceptable to Jewish community stakeholders’. Such a demand blithely disregards the disparate political opinions on Judeophobia amongst British Jews and, in flattening these disagreements, seriously risks the EHRC itself being accused of Judeophobia.
The difficulty of even attempting to fulfil the EHRC’s standards about the provision of Judeophobia training was demonstrated in the attempt by Corbyn’s Office to engage with the Pears Institute for the Study of Antisemitism. Despite initial talks, ‘at the end of July 2018 the Pears Institute pulled out, following criticisms […] from [Jewish] communal organisations’. The EHRC simply dismisses this episode, without exploring why such pressure was applied, by whom, and what the motivations were.
The differences of opinion amongst British Jews about what is ‘acceptable’ is likely to be irreconcilable, particularly since British Jews — who, like non-Jews, are not a monolith — belong to a range of communal organisations with distinct political and religious leanings (Zionist and anti-Zionist, right-wing and left-wing, practicing and non-practicing, and so on). This is important because ‘training’ is unlikely to be neutral on such matters and will inevitably impart ideological arguments.
There should, furthermore, be no compulsion on the Party or any other organisation to privilege Jewish opinions on the ‘acceptability’ of Judeophobia training. This reasoning appears to derive from misconceptions about the Macpherson principle, which combines subjective perceptions with objective reasoning and evidence. Clearly, considering a range of Jewish opinion is an indispensable starting point when designing Judeophobia training, but there is no requirement for a sign-off from ‘Jewish community stakeholders’.
Jamie Stern-Weiner, editor of Antisemitism and the Labour Party, has also pointed out that some of these communal groups ‘lack substantial democratic legitimacy’. The Jewish Leadership Council is ‘unelected’, whilst elections for the Board of Deputies of British Jews ‘are largely uncontested, and do not engage either ultra-Orthodox Haredi Jews or most Jews who do not attend synagogue’.
Additionally, the EHRC does not outline to which ‘community stakeholders’ it refers, which is an important question given that the ten pledges outlined by the Board of Deputies during this year’s Labour leadership campaign — signed by Keir Starmer — included a demand that Labour ‘must engage with the Jewish community via its main representative groups, and not through fringe organisations’. Attempts by certain Jewish communal organisations to delegitimise left-wing Jews only further highlights the problem of the EHRC’s unreasonably high standards.
Moreover, the EHRC again uses sexual harassment as the ‘comparator’ for its finding; the argument is that Judeophobia training was not ‘given the same priority’ as sexual harassment training. Yet, if a lack of training on Judeophobia results in indirect discrimination — based on this comparison — then the Party must also be discriminating on other protected characteristics where there is understood to be far less training than on Judeophobia (or none at all).
The EHRC has not explored the dearth of training related to Islamophobia, anti-black racism, antigypsyism, and other forms of racism and prejudice. It is, therefore, erroneous to determine that Jewish people were particularly disadvantaged. As with Judeophobia complaints, more attention appears to have been focussed on Judeophobia training than on any other form of prejudice, despite a lack of evidence about the supposed disproportionate prevalence of Judeophobia as compared with various types of racism in the Party.
For all these reasons, ‘on the balance of probabilities’, I submit that the EHRC’s arguments and examples about ‘political interference’ and a ‘lack of adequate training’ cannot properly substantiate its two findings of unlawful indirect discrimination.
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”).
Firstly, the meanings of both Livingstone’s and Bromley’s comments are disputed. In its ‘summary of facts’ of either case, the EHRC has described their remarks in the most unfavourable light and does not offer alternative views about what these comments could have meant or how they may have been interpreted. The EHRC provides Bromley a mere half-sentence explanation against the various accusations against her, whilst Livingstone is provided no explanation at all after he apparently ‘did not provide any relevant points’.
Be that as it may, even if one is to accept in full, and at face value, the meanings attributed by the EHRC to these comments, it is submitted that they are still protected under the Convention.
The significance of Article 10
Article 10 protects one of the cardinal rights in any democratic state: freedom of expression. Whilst there are exceptions to Article 10 — such as hate speech and incitement to violence — these must still be interpreted narrowly, and any necessity for interference against freedom of expression must be ‘convincingly established’. This affords Article 10 a particularly high level of protection and means that someone should only be deprived of that right in the most serious of cases. Additionally, as has been confirmed in English case law, elected politicians (and those commenting on politics, including the press) are afforded ‘enhanced protection’ under Article 10.
Therefore, the EHRC’s assertion that the Convention ‘does not protect racist speech that negates its fundamental values […] notably tolerance, social peace and non-discrimination’ is, as a matter of law, manifestly inaccurate. As is, moreover, the EHRC’s declaration that Article 10 ‘does not protect criticism of Israel that is antisemitic’. It is undoubtable that Article 17 of the Convention allows for exceptions to be made in order to prohibit abuse of Convention rights, but these exceptions are nowhere near as sweeping as presented by the EHRC and are even more restricted against politicians.
Interestingly, the interference in Article 10 justified by the EHRC’s erroneous legal analysis also contradicts its own 2015 freedom of expression guidance, which is referenced in the Report. The EHRC has stated explicitly that, even in the context of apparently intolerant statements, such issues will not be open-and-shut, but will instead involve a balancing process that requires consideration of the context. The EHRC’s guidance continues by stating that an intolerant statement, even if offensive to some, ‘is likely to be protected if it is expressed in a political speech or a public debate where different points of views are being exchanged and are open to challenge’. At least with respect to Livingstone’s comments — which, as the EHRC states, ‘were made on radio shows with large audiences’ — this guidance is plainly relevant.
Whilst the EHRC purports to conduct this balancing process (to determine whether Article 10 should apply), I submit that the EHRC did not do so correctly and that its approach was deeply flawed.
Article 10 case law
The EHRC’s 2015 guidance is clearly correct, and consistent with current English case law, which affords a high level of protection to speech that many people consider to be intolerant. Take, for example, the recent case of R (Miller) v College of Policing, in which Mr Justice Knowles found that a police probe into allegedly transphobic tweets was unlawful.
Despite the tweets being ‘opaque, profane, or unsophisticated’, the judgment clarifies that they were still protected by Article 10, because ‘they were expressions of opinion on a topic of current controversy, namely gender recognition’. Further, it says that ‘special protection is afforded to political speech and debate on questions of public interest’. The controversy around alleged Judeophobia, especially with respect to the Labour Party, would evidently match such a description. As such, even if the meanings attributed by the EHRC to Livingstone’s and Bromley’s comments were to be accepted, their comments should have nevertheless benefited from this protection.
In reaching that conclusion, Mr Justice Knowles also referred to the Ivanov v Russia admissibility decision in the European Court of Human Rights (ECtHR or the “European Court”), cited by the EHRC. That case cannot withstand the weight that the EHRC seeks to place on it. In fact, Livingstone’s and Bromley’s comments are not even remotely analogous to the speech considered in that case (or in the other two cases cited, which concern Holocaust denial).
In Ivanov, the protection of the Convention was ousted in circumstances where Pavel Ivanov had, among other things, ‘called for the exclusion of Jews from social life […] and portrayed the malignancy of the Jewish ethnic group’, as well as accusing an ‘entire ethnic group of plotting a conspiracy against the Russian people’. Against the background of those unquestionably abhorrent views, it is entirely unsurprising that the European Court concluded that the protection of the Convention was excluded by Article 17. However, even taking the EHRC’s case at its highest, neither Livingstone nor Bromley are accused of anything of the sort.
Even when looking at another case cited by the EHRC — M’Bala M’Bala v France — the facts are plainly not applicable to Livingstone and Bromley. M’Bala M’Bala concerned Robert Faurisson’s Holocaust denial (denying the existence of gas chambers and concentration camps). To compare Livingstone’s and Bromley’s comments to that case is preposterous.
Furthermore, none of the cases cited by the EHRC — Ivanov, M’Bala M’Bala, and Garaudy v France — concern politicians. Whilst acknowledging the enhanced protection afforded to elected politicians, the EHRC has not provided a proper basis for why such protection should not apply to Livingstone and Bromley. The cases on which the EHRC has sought to rely do not address this matter, either.
Misconstruing the facts
The EHRC has taken a revisionist approach to the Livingstone case, summarising the furore that engulfed him as arising from his comments about Naz Shah MP, which allegedly ‘sought to minimise [the] offensiveness’ of what Shah had said.
In reality, the controversy arose for the most part due to Livingstone’s remarks about the Ha’avara Agreement and specifically, in Livingstone’s words, how Hitler had been ‘supporting Zionism — this before he went mad and ended up killing six million Jews’. These comments led to the infamous episode of John Mann, then a Labour MP, screaming furiously at Livingstone that he was a ‘disgusting racist’ and a ‘Nazi apologist’, in widely broadcast footage.
The likely reason why the EHRC has attempted to revise history in this way is because those comments by Livingstone are quite obviously protected under current Convention case law. Freedom of expression, according to the European Court in Chauvy and Others v France, is integral to seeking ‘historical truth’, a matter which is subject to ongoing debate. This would include Livingstone’s comments about the Ha’avara Agreement, regardless of whether or not they were historically accurate.
Additionally, the EHRC states that Livingstone ‘supported’ Shah’s comments, which is misleading to say the least. In fact, Livingstone said that Shah’s comments were ‘completely over the top and rude’ and that what she posted on social media in relation to relocating Israel to the United States ‘was wrong’. Livingstone had been disputing whether Shah was, personally, a Judeophobe — this is different to endorsing her comments. As has already been mentioned, Article 10 protects people who are ‘contributing to an ongoing debate that is complex and multi-faceted’; it is uncontroversial to say that this applies to debates on whether a sitting Member of Parliament is an ‘antisemite’.
As such, the legal basis on which the EHRC relies for its finding that Article 17 is engaged — and, therefore, that Livingstone’s and Bromley’s comments are not protected under Article 10 — is erroneous. On this basis alone, there should have been no findings of unlawful harassment by the Party, because Livingstone’s and Bromley’s comments should have been protected under the Convention.
One does not have to endorse the comments made by either Livingstone or Bromley to conclude that the EHRC’s approach to the Convention is simply not correct as a matter of law. Consequently, the EHRC’s findings will have a corrosive effect on freedom of expression more generally, which should be of concern to everyone.
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 definition of harassment in the Equality Act 2010 states that a person harasses another person when they engage ‘in unwanted conduct related to a relevant protected characteristic which has the purpose or effect’ of ‘violating […] dignity’ or ‘creating an intimidating, hostile, degrading, humiliating or offensive environment for [that other person]’. As observed by Lord Justice Elias in the case of Land Registry v Grant, these words are deliberately strong and set a high threshold; to ‘cheapen’ them is to bring ‘discrimination law into disrepute’. I submit that there are several flaws in the EHRC’s findings of harassment under this definition, which do not properly consider the impact of these words.
The EHRC’s summary of the statutory test for harassment also leaves out an important element, which is referenced in the Explanatory Notes to the Equality Act 2010 and is developed in the case of Fraser v University & College Union. Namely, that the conduct in question (creating an intimidating, hostile, degrading, humiliating or offensive environment) must (1) be related to Jewish ethnicity or religion (2) and have a sufficient nexus (or connection) to an individual who claims to have been harassed.
Of course, Livingstone’s and Bromley’s conduct need not have been aimed at a particular person. However, the more distant the connection, the more likely it is that someone will not have suffered an adverse effect from that conduct. Even if someone claims to have suffered an adverse effect, there is also an objective test about whether this was reasonable. The EHRC does not appear to have focussed on the second nexus part of the test, which led it into legal error in concluding that Livingstone’s and Bromley’s comments created such environments for Party members, and even prospective Party members, ‘particularly those who were Jewish’.
According to Fraser, even if Party members resigned, or did not join, as a result of Livingstone’s and Bromley’s comments (the EHRC states that such evidence exists regarding Livingstone), this would not be enough. The Fraser case directly discussed the resignation of Jewish members from the union, an argument that was said to be ‘obviously untenable’ and which ‘cannot amount to harassment’.
Furthermore, whilst specifying that Bromley allegedly ‘contributed to a hostile environment in the Labour Party’, it is telling that the EHRC has been unable to identify which of the options — intimidating, hostile, degrading, humiliating, or offensive — Livingstone allegedly created. These words each have individual meanings and are not synonyms. It is therefore improper, particularly without further explanation, to list these words as applying collectively and without being distinguished. The EHRC may believe that all of these words apply to the environment Livingstone allegedly created, although it is noteworthy that the EHRC uses the word ‘or’ rather than ‘and’.
It is also highly suspect that the EHRC has determined that it is possible to harass an entire ‘ethnic group’ (as identified in law) as opposed to an identified individual or group of individuals, particularly in circumstances where many members of that group did not consider themselves harassed. In doing so, the EHRC treats British Jews and ‘the Jewish community’ as a monolith, who are all of one mind. Doubtlessly, this is offensive to many Jewish people, and potentially an ‘antisemitic trope’ according to the EHRC’s own logic.
The case of Traveller Movement v JD Wetherspoon Plc directly considered the meaning of harassment under the Equality Act 2010. In that case, Judge Hand QC found that a pub had discriminated against individuals from the travelling community, and those associated with them, by excluding them from entry. The judge also acknowledged the clear upset and offence caused to those individuals.
However, despite this, he found that it was not reasonable to conclude that the conduct had the effect of violating dignity or creating an intimidating, hostile, degrading, humiliating, or offensive environment. As for Livingstone and Bromley, the EHRC has not even been able to find discrimination, let alone provide evidence of such an environment being created.
It is simply not properly sustainable that a set of media statements made over few days (Livingstone) and that seven Facebook posts made over a period of two years (Bromley) could have created such an environment within a political party of hundreds of thousands of members.
Moreover, as observed by Mr Justice Tugendhat in Trimingham v Associated Newspapers Ltd, ‘anti-discrimination legislation does not apply to statements published to the public at large in the press or online’. This obiter dictum (a less authoritative remark, made in passing) has since been directly considered and given further weight in subsequent English case law. Accordingly, given that the EHRC’s conclusions about Livingstone and Bromley rest entirely on public statements, I submit that there can be no lawful basis for the EHRC’s findings.
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.
Take, for example, the IHRA working definition, which almost totally replicates the discredited and politicised definition proposed in 2004 by the European Monitoring Centre on Racism and Xenophobia (“EUMC”). The EUMC definition, which had failed to gain currency, was revived through the International Holocaust Remembrance Alliance, which adopted it in May 2016. The news of its adoption ‘was celebrated at the time by a number of pro-Israel groups’. The once-discredited EUMC definition, with a few minor tweaks, had now gained international backing.
The political motivations behind the IHRA definition were clear: to expand the scope of the definition of Judeophobia to more broadly encompass criticism of Israel and anti-Zionism. Upon its adoption, the American Jewish Committee said that the definition offered ‘a clear and comprehensive description of antisemitism in its various forms [but] of particular note, antisemitism as it relates to Israel’. Additionally, an Israeli regime document from 2016 praised the ‘main innovation in the working definition’, which was to refer to ‘anti-Zionism in terms of negating the existence of the State of Israel or denying the right of the Jewish people to self-determination, as a form of Antisemitism’.
Despite these overt statements outlining the IHRA definition’s implications and political purpose, this has not prevented people from interpreting the document literally. Of course, the IHRA definition contains caveats and provisos, which has led many people to naïvely argue in good faith that it guarantees the freedom to criticise Israel and Zionism (even in the face of staunch opposition from pro-Palestinian groups). This failure to read between the lines and to understand the document’s broader implications even resulted in a decision by the Labour Party in 2018 — at the time led by a supposedly pro-Palestinian, left-wing leadership — to adopt all of the definition’s accompanying examples, albeit with significant protest.
As many predicted, the IHRA’s caveats have not stopped it from being deployed to silence ‘legitimate’ (on its own terms) speech related to Israel and Zionism. One can abide perfectly by the IHRA definition, and still be accused of ‘antisemitism’, which can result in being castigated through suspension or expulsion from one’s Party, losing one’s job, or being made a pariah in public life.
The irrelevance of the Report’s contents
The ability to weaponise these politicised documents was exemplified immediately upon the release of the EHRC Report. Jeremy Corbyn issued a statement saying that, ‘One antisemite is one too many, but the scale of the problem was also dramatically overstated for political reasons by our opponents’. The Report explicitly states that such speech about ‘the scale of antisemitism within the Party’ is protected under Article 10. That did not stop Corbyn from being suspended, and it is apparently of no assistance to him now.
In fact, in another direct violation of the EHRC Report — which decried political interference in the disciplinary process and included the General Secretary’s Office amongst the ‘political organs’ that should not be involved in such cases — it transpired that the Party’s general secretary David Evans had issued the suspension.
After nineteen days, immense pressure, and threats of a legal challenge, Corbyn was readmitted to the Party by a panel of its own National Executive Committee. Despite this ruling, Keir Starmer has taken the unprecedented and extraordinary step of refusing to readmit Corbyn to the Parliamentary Labour Party. Meanwhile, the chief whip, Nick Brown, has made Corbyn’s readmission contingent on him issuing an apology for his comments ‘unequivocally, unambiguously, and without reservation’. The attempt to extract an apology from Corbyn is, in reality, a demand to disavow the truth, which would only further limit the scope of acceptable public discourse.
This ongoing episode illustrates that what is said in the EHRC Report is immaterial; it can be ignored, contradicted, and manipulated to suit the political goals of those in positions of power. To focus on the letter of the Report is a fruitless distraction if not also accompanied by an analysis of the Report’s political impact.
That conclusion has only been further reinforced by recent comments made by the Party’s deputy leader, Angela Rayner. At the Jewish Labour Movement conference on 30 November 2020, Rayner said, ‘If I have to suspend thousands and thousands of members, we will do that’. What Rayner has outlined directly contravenes the EHRC Report and would constitute political interference in the Party’s disciplinary procedures, flying in the face of the Party’s stated commitment to an ‘independent’ process.
This anti-socialist purge, however, is extending well beyond the Party; it is being accompanied by an intensive campaign targeted at the social media giants to suspend the accounts of prominent left-wing journalists and activists. This has been led by the ‘Center for Countering Digital Hate’ — an organisation closely tied both to right-wing Labour MPs and the Israel lobby — which has attempted to shut down the left-wing news and commentary site The Canary by lobbying its advertisers.
In the past fortnight alone, several left-wing commentators and activists — including The Canary’s founding editor Kerry-Anne Mendoza — have had their social media accounts suspended. What this demonstrates is that the Party’s internal battles are hardly ‘internal’. On the contrary, the Party is a testing ground — a laboratory — to proliferate Israeli diplomatic objectives: normalising Zionism and crushing socialist anti-imperialism across the UK.
The battle in the Party over whether to adopt the IHRA in full, for example, was fought and won in 2018, which led to the normalisation of Zionism and the proscription of pro-Palestinian speech in the Party. Once the Party folded — and mainstream political resistance had been neutered — it was open season to push the IHRA definition across the entire country, to local authorities, universities, and beyond. In much the same way, the EHRC Report and the weaponisation of Judeophobia allegations in the Labour Party are merely a means to an end. The aim is to criminalise anti-Zionism and to constrain opposition to what is now 140 years of Zionist colonisation of Palestine.
The ‘Livingstone Formulation’
Pro-Israel writer and activist David Hirsh proclaimed after the Report’s publication that, ‘The EHRC has crystallised a new legal precedent that the ‘Livingstone Formulation’ is antisemitic’. Hirsh has suggested that the ‘Livingstone Formulation’ is ‘the phenomenon of responding to an accusation of antisemitism with a counter-accusation of Zionist bad faith’. In my view, the purpose of a so-called ‘Livingstone Formulation’ is to legitimise bad faith accusations of alleged Judeophobia by making it impossible to ever label them as such, and to silence any objection against such dishonesty.
In elaborating on what this supposed new legal precedent means, Hirsh says, ‘Whenever an MP, an academic or a [trade union] official says that allegations of antisemitism are invented or exaggerated to smear the left or to silence criticism of Israel they risk opening their institution to litigation’. However, the EHRC has no authority to establish such a legal precedent, and so this pseudo-legal advice, which could be interpreted as a threat, is baseless. Hirsh’s concept of a ‘Livingstone Formulation’ is plainly a distortion of equality law.
Yet, that did not stop Adam Wagner, a prominent anti-Corbyn barrister, affirming Hirsh’s views. On The Jewish News Podcast, he said that ‘the most important [legal principle] that [the EHRC] concluded was that suggesting that complaints of antisemitism are fake or smears was not just unlawful, it was harassment’.
It should not be readily assumed that Hirsh and Wagner are merely neutral observers. With respect to Hirsh, his work can be understood to delegitimise socialists, anti-Zionists, and those involved in Palestine solidarity efforts. As for Wagner, he acted for the Campaign Against Antisemitism (“CAA”), the original complainant to the EHRC against the Party, and ‘made detailed submissions’ on its behalf.
The CAA is a Zionist and pro-Israel organisation. It originated as part of efforts to defend Israel’s reputation during the apartheid state’s devastating shock and awe offensive on Gaza in 2014. At the time, the current CAA chairman Gideon Falter condemned ‘the insistence on holding Israel to exceptional, impossible standards’ and said that ‘Israel’s case was deliberately stifled’, which motivated him to join ‘a Facebook group called Campaign Against Antisemitism’.
The CAA Facebook group had been co-founded by Joseph Cohen of the Israel Advocacy Movement (a group which last year hosted a debate with far-right activist Mark Collett on the subject, ‘Should Zionists support a white ethnostate?’). The CAA’s first major action in 2014 was to campaign against a London theatre because it refused Israeli regime funding for a Jewish film festival whilst Israel was engaged in aerial bombardment of Gaza.
The CAA’s activities since that time have similarly left no ambiguity about its political stances and motivations. In 2018, the Charity Commission opened a regulatory compliance case after the CAA launched a petition calling Corbyn an ‘antisemite’ who ‘must go’. Moreover, the CAA’s Head of Political and Government Investigations released a disturbing video following the 2019 general election, celebrating Corbyn having been ‘slaughtered’. The CAA also uses offensive language to attack those with which it disagrees. In particular, in its press releases, it repeatedly describes JVL — a group created and run by Jewish individuals — as an ‘antisemitism-denial group and sham Jewish representative organisation’.
Given its history and ongoing lobbying efforts, it is eminently reasonable, and necessary, to question the biases of the CAA and those who have acted on its behalf.
Moreover, the EHRC’s terms of reference were specific, its powers are limited, and its findings are not legally binding, something that Wagner acknowledges. Nevertheless, he has speculated that the EHRC’s entirely disputable legal analysis would likely be considered ‘persuasive’ by a court or tribunal, ‘particularly in relation to the definition of antisemitism’.
Until this is litigated, statements like those of Wagner’s will likely be used to further chill freedom of expression related to Israel and Zionism. The reality is that many organisations — as a result of such legal speculations — will feel compelled to take disproportionate pre-emptive action against what might well be perfectly lawful conduct, for fear (genuine or insincere) of committing indirect discrimination or harassment. Such instances could become widespread, without ever being reported in the media or reaching a courtroom.
In fact, this has already begun to happen inside the Party itself. David Evans recently sent an email to senior Party office holders, outlining his rationale for censoring discussions about the EHRC Report and the withdrawal of the Labour whip from Corbyn. Evans said, ‘our responsibility to double down on anything that may cause members to continue to feel unwelcome and unsafe must take precedence over our rights at this time (emphasis added)’.
The email is a barefaced example of ‘saying the quiet part out loud’. It is unclear to what ‘rights’ Evans is referring, but he appears to be — in a bizarre contradiction — ordering the curtailment of lawful freedom of expression under the cover of legal necessity. Moreover, ‘feeling unwelcome and unsafe’ is an arbitrary concept that is likely to be subject to, and fuelled by, external lobbying pressures.
The case of Williamson MP v Formby illustrated the power of these external groups — such as right-wing Labour MPs and the media — on the Party’s internal decisions and their ability to instigate a public ‘outcry’. Such outcries, originating from internal goings-on in the Party, create self-fulfilling prophecies that further engender feelings and perceptions about a lack of ‘safety’. It is unworkable to limit the scope of internal Party debate based on such intangible and pliable concepts, which are often driven by external manipulation.
In my view, for the reasons outlined, this is all far from casual. These misstatements of the law highlight how the EHRC Report can be viewed as part of a wider lawfare strategy against socialists, anti-Zionists, as well as those who make even the most anodyne criticisms of Israel.
In any event, litigation in this area should be embraced. I submit that, given the extent of the Report’s flaws, the Courts would likely contradict the EHRC and establish real, binding legal precedents protecting people’s freedom of expression under the European Convention on Human Rights. Legal action also has the potential to further clarify the law on harassment under the Equality Act 2010 and to do away with the EHRC’s inaccurate analysis.
An ‘independent’ complaint process
Throughout the Report, the EHRC proceeds from the position that the adoption of an independent complaint process for Judeophobia complaints is inherently desirable, without explaining what this ‘independence’ would look like or what its threshold would be. It merely states that this process ‘should last until trust and confidence in the process is fully restored’, after which the Party will simply need to guarantee ‘independent oversight and auditing’. The EHRC does not explain what trust, confidence, oversight, and auditing mean.
In order to push this particular recommendation, it seems that the EHRC — with notable sleight — retroactively amended its 2019 terms of reference by stating in the Report that the Party must ensure ‘antisemitism complaints are handled independently, lawfully, efficiently and effectively (emphasis added)’. The terms of reference, of course, only used the words ‘lawful, efficient and effective’.
Crucially, the problem is not the notion of an independent process. If creating such a process were possible, then the arguments for it would certainly be strong. The problem lies with the idea that ‘independence’ can be achieved in an innately political environment. In my view, this is fanciful and dishonest. To achieve such a process would be impossible. As such, the replacement of the current discredited process could simply lead to another one that is just as flawed, if not worse.
At the moment, it is uncertain what form this process will take, or who will be lined up to assume command. The new process could end up involving people with naked political biases, but who exist outside the Party and are therefore classified as ‘independent’. However, the idea of a completely external process might even be expecting too much as the threshold for what is ‘independent’ could be set much lower.
The new process could end up including political oversight by the Party’s National Executive Committee, the involvement of internal Party lawyers and the use of guidelines drafted through the Party’s internal bodies. Most people would probably not consider this to be ‘independent’ — and it would be a far cry from what many people are expecting — but it could nevertheless satisfy the EHRC.
It is, of course, demonstrable that the Party’s procedures for complaint handling are not fit for purpose and have resulted in injustices towards both complainants and respondents. However, this does not mean that a new process will be a silver bullet. On the contrary, the EHRC’s failure to define precisely what form a new ‘independent’ process should take — or to properly consider alternative options — could result in ‘independence’ being used as a smokescreen to pursue widespread, politically motivated disciplinary actions against thousands of Party members.
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.
However, it is still possible that an application for judicial review could be made by those named in the Report or others who have sufficient locus standi (legal standing). It would be worth looking out for whether this happens within the next two months (given that there is a time limit). Several legal flaws mentioned in this article could form the basis for such a challenge, and could result in certain findings in the Report being reconsidered or overturned.
Whatever happens, it should be remembered that the EHRC has not created new legal precedents. Anyone who seeks to instrumentalise the Report for their own political ends should understand this well. Future legal cases related to the incorrect usage of the Report could see definitive, judge-made precedents established in direct contradiction to the EHRC’s legal analysis. Given the abundance of errors of omission and commission in the Report, that would be a welcome development, both for the protection of freedom of expression and for challenging the political basis of the so-called ‘antisemitism crisis’ in the Labour Party.
I would like to acknowledge and thank everyone who contributed to this article through proof-reading and critical feedback. I am particularly grateful to the several legal professionals who provided vital guidance and legal research.
Please note that this article is not legal advice.
Ammar Kazmi is an anti-imperialist political activist and a graduate in Law with Spanish and Spanish Law at the University of Nottingham.
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 Aaron Bastani, ‘‘It’s going to be a long night’ — How Members of Labour’s Senior Management Team Campaigned to Lose’ Novara Media (12 April 2020) <https://novaramedia.com/2020/04/12/its-going-to-be-a-long-night-how-members-of-labours-senior-management-campaigned-to-lose/> accessed 19 November 2020; Ash Sarkar, ‘The Labour Party’s Culture War Over Racism Has Pitted Marginalised Communities Against One Another’ Novara Media (14 April 2020) <https://novaramedia.com/2020/04/14/the-labour-partys-culture-war-over-racism-has-pitted-marginalised-communities-against-one-another/> accessed 19 November 2020.
 The Labour Party, ‘The work of the Labour Party’s Governance and Legal Unit in relation to antisemitism, 2014–2019’ Unpublished (2020), pp. 164–169.
 Steve Walker, ‘Labour Islamophobia: VICTIM of this recorded anti-Muslim abuse revealed by leaked report has been suspended for 3 years this week while perpetrator protected’ The Skwawkbox (10 December 2020) <https://skwawkbox.org/2020/12/10/labour-islamophobia-victim-of-this-recorded-anti-muslim-abuse-revealed-by-leaked-report-has-been-suspended-for-3-years-this-week-while-perpetrator-protected/> accessed 10 December 2020.
 The Labour Party, ‘The work of the Labour Party’s Governance and Legal Unit in relation to antisemitism, 2014–2019’ Unpublished (2020), p. 11.
 Peter Walker & Jessica Elgot, ‘Labour responsible for harassment and discrimination, EHRC antisemitism inquiry finds’ The Guardian (29 October 2020) <www.theguardian.com/politics/2020/oct/29/labour-accused-of-harassment-and-discrimination-in-antisemitism-inquiry> accessed 7 December 2020.
 Re Findlay  AC 318.
 R (DSD) v Parole Board  EWHC 694 (Admin).
 Shami Chakrabarti, ‘The Shami Chakrabarti Inquiry’ (30 June 2016) <https://labour.org.uk/wp-content/uploads/2017/10/Chakrabarti-Inquiry-Report-30June16.pdf> accessed 19 November 2020, p. 1.
 Jan Royall, ‘Allegations of anti-Semitism Oxford University Labour Club’ (3 August 2016) <https://antisemitism.org/wp-content/uploads/2016/08/Royall-Report.pdf> accessed 19 November 2020, p. 10.
 Home Affairs Select Committee, Antisemitism in the UK (HC 2016–17, 136–10).
 Jewish Voice for Labour, ‘EHRC investigation into the Labour Party — evidence of Jewish Voice for Labour’ (2 August 2019) <www.jewishvoiceforlabour.org.uk/statement/ehrc-investigation-into-the-labour-party-evidence-of-jewish-voice-for-labour/> accessed 19 November 2020.
 BICOM, ‘Newsnight: Alan Johnson’ (4 May 2016) <www.bicom.org.uk/video/professor-alan-johnson-newsnight/> accessed 19 November 2020.
 BICOM, ‘Prof. Alan Johnson’ (21 August 2019) <www.bicom.org.uk/staff/professor-alan-johnson/> accessed 19 November 2020.
 Greg Philo, Mike Berry, Justin Schlosberg, Antony Lerman & David Miller, Bad News for Labour: Antisemitism, the Party and Public Belief (Pluto Press 2019).
 Clare Collier, ‘Investigation into the Labour Party’ EHRC (28 May 2019) <www.equalityhumanrights.com/sites/default/files/terms-of-reference-investigation-into-labour-party-28-may-2019.pdf> accessed 19 November 2020.
 Rob Ferguson, Antisemitism: The Far Right, Zionism and the Left (Bookmarks Publications 2018).
 Abba Eban, ‘Our place in the human scheme’ (1973) 40(6) Congress Bi-Weekly, pp. 5–9.
 Corey Balsam, ‘Who’s against adopting the IHRA antisemitism definition?’ The Times of Israel (9 December 2020) <https://blogs.timesofisrael.com/whos-against-adopting-the-ihra-antisemitism-definition/> accessed 9 December 2020.
 Palestinian Human Rights Organizations Council, ‘PHROC Concerns on Special Rapporteur’s Adoption of IHRA Definition of Anti-Semitism’ (13 October 2019) <www.ohchr.org/Documents/Issues/Religion/Submissions/PHROC_ResponsetoReport.pdf> accessed 6 December 2020; The Guardian, ‘Letter: Palestinian rights and the IHRA definition of antisemitism’ (29 November 2020) <www.theguardian.com/news/2020/nov/29/palestinian-rights-and-the-ihra-definition-of-antisemitism> accessed 6 December 2020.
 Kenneth Stern, ‘I drafted the definition of antisemitism. Rightwing Jews are weaponizing it’ The Guardian (13 December 2019) <www.theguardian.com/commentisfree/2019/dec/13/antisemitism-executive-order-trump-chilling-effect> accessed 6 December 2020; Kenneth Stern, ‘Steering the Biden administration wrong on anti-Semitism’ The Times of Israel (10 December 2020) <https://blogs.timesofisrael.com/steering-the-biden-administration-wrong-on-anti-semitism/> accessed 10 December 2020.
 Home Affairs Select Committee, Antisemitism in the UK (HC 2016–17, 136–10), p. 12.
 Rutherford v Secretary of State for Trade and Industry  UKHL 19.
 Pendleton v Derbyshire County Council  UKEAT/0238/15/LA.
 Naeem v Secretary of State for Justice  UKSC 27.
 The Labour Party, ‘The work of the Labour Party’s Governance and Legal Unit in relation to antisemitism, 2014–2019’ Unpublished (2020), pp. 404–405.
 Ibid., p. 598.
 Jamie Stern-Weiner, ‘We Need to Learn Lessons From Labour’s “Antisemitism Crisis”’ Jacobin (21 February 2020) <www.jacobinmag.com/2020/02/labours-party-antisemitism-crisis-corbyn-sanders> accessed 7 December 2020.
 Board of Deputies of British Jews, ‘Ten pledges to end the antisemitism crisis’ (12 January 2020) <www.bod.org.uk/wp-content/uploads/2020/01/Labour-l0-pledges.pdf> accessed 7 December 2020.
 Observer and Guardian v United Kingdom App no 13585/88 (ECtHR, 26 November 1991).
 David Harris, Michael O’Boyle, Ed Bates & Carla Buckley, Harris, O’Boyle, and Warbrick: Law of the European Convention on Human Rights (4th edn, OUP 2019), p. 592.
 Heesom v Public Services Ombudsman for Wales  EWHC 1504 (Admin).
 EHRC, ‘Freedom of expression’ (4 February 2015) <www.equalityhumanrights.com/sites/default/files/20150318_foe_legal_framework_guidance_revised_final.pdf> accessed 19 November 2020, p. 8.
 Ibid., p. 9.
 R (Miller) v College of Policing  EWHC 225 (Admin).
 Ivanov v Russia App no 35333/04 (ECtHR, 27 August 2004).
 M’Bala M’Bala v France App no 25239/13 (ECtHR, 20 October 2015).
 Garaudy v France App no 65831/01 (ECtHR, 7 July 2003).
 BBC News, ‘Ken Livingstone stands by Hitler comments’ (30 April 2016) <www.bbc.co.uk/news/uk-politics-36177333> accessed 19 November 2020.
 The Guardian, ‘John Mann calls Ken Livingstone a ‘Nazi apologist’ — video’ (28 April 2016) <www.theguardian.com/politics/video/2016/apr/28/john-mann-calls-ken-livingstone-a-nazi-apologist-video> accessed 19 November 2020.
 Chauvy and Others v France App no 64915/01 (ECtHR, 29 September 2004).
 Ken Livingstone, BBC Daily Politics — Interview with Andrew Neil (28 April 2016).
 R (Miller) v College of Policing  EWHC 225 (Admin).
 Land Registry v Grant  ICR 1390 CA.
 Fraser v University & College Union  UKEAT/0266/14/DM.
 Traveller Movement v JD Wetherspoon Plc  WLUK 440.
 Trimingham v Associated Newspapers Ltd  EWHC 1296 (QB).
 Sube v News Group Newspapers Ltd  EWHC 1234 (QB).
 Ben White, Cracks in the Wall: Beyond Apartheid in Palestine/Israel (Pluto Press 2018), pp. 108–109.
 Ibid., p. 109.
 Israel Ministry of Diaspora Affairs, ‘Report on: Antisemitism in 2016 — Overview, Trends and Events’ (2016) <https://web.archive.org/web/20181221210605/http://www.mda.gov.il/EngSite/Lists/HomePageBanner3Icons/Attachments/1/reportENG.pdf> accessed 19 November 2020, p. 52.
 Haim Bresheeth, ‘The Israel Lobby, Islamophobia and Judeophobia’ (2018) 17(2) Journal of Holy Land and Palestine Studies (2018) <www.researchgate.net/publication/328821636_The_Israel_Lobby_Islamophobia_and_Judeophobia_in_Contemporary_Europe_and_Beyond_Myths_and_Realities> accessed 7 December 2020, pp. 218–219.
 Jeremy Corbyn, ‘My statement following the publication of the EHRC report’ (29 October 2020) <www.facebook.com/JeremyCorbynMP/posts/10158939532253872> accessed 19 November 2020.
 Jessica Elgot, ‘How did Labour resolve Jeremy Corbyn’s suspension case?’ The Guardian (17 November 2020) <www.theguardian.com/politics/2020/nov/17/who-will-decide-what-action-labour-will-take-against-jeremy-corbyn> accessed 25 November 2020.
 Rachel Wearmouth, ‘Jeremy Corbyn Told To Apologise ‘Without Reservation’ By Labour Chief Whip’ HuffPost (23 November 2020) <www.huffingtonpost.co.uk/entry/jeremy-corbyn-told-to-apologise-without-reservation-by-labour-chief-whip_uk_5fbbfb18c5b63d1b7705b032> accessed 25 November 2020.
 Sienna Rodgers, ‘Rayner says “thousands” of Labour members may be suspended from party’ LabourList (29 November 2020) <https://labourlist.org/2020/11/rayner-says-thousands-of-labour-members-may-be-suspended-from-party/> accessed 30 November 2020.
 John McEvoy, ‘Exclusive: Labour right linked to campaign to shut down The Canary’ The Canary (1 December 2020) <www.thecanary.co/investigation/2020/12/01/exclusive-labour-right-linked-to-campaign-to-shut-down-the-canary/> accessed 7 December 2020; Branko Marcetic, ‘They’ll Come for Us Next’ Jacobin (22 June 2020) <www.jacobinmag.com/2020/06/anti-corbyn-blair-censorship-google-labour-uk> accessed 1 December 2020.
 David Hirsh, ‘The ‘Livingstone formula’ is dead’ The Jewish Chronicle (30 October 2020) <www.thejc.com/comment/opinion/the-livingstone-formula-is-dead-1.508075> accessed 19 November 2020.
 David Hirsh, Contemporary Left Antisemitism (Routledge 2018), p. 19.
 David Hirsh, ‘Whenever an MP, an academic or a TU official says that allegations of antisemitism are invented or exaggerated to smear the left or to silence criticism of Israel they risk opening their institution to litigation: because making that claim constitutes unlawful harassment of Jews.’ (31 October 2020) <https://twitter.com/DavidHirsh/status/1322640346250121216> accessed 19 November 2020.
 David Hirsh, ‘Adam Wagner @AdamWagner1: “I think the most important thing that they concluded was that suggesting that complaints of antisemitism are fake or smears was not just unlawful it was harassment.” That’s “the most important legal principle” in the report.’ (31 October 2020) <https://twitter.com/DavidHirsh/status/1322538012266344448> accessed 19 November 2020.
 Doughty Street Chambers, ‘Adam Wagner acts in Equality and Human Rights Commission investigation into the Labour Party’ (3 November 2020) <www.doughtystreet.co.uk/news/adam-wagner-acts-equality-and-human-rights-commission-investigation-labour-party> accessed 19 November 2020.
 Gideon Falter, ‘OPINION: Let’s turn fear of anti-Semitism into fight’ Jewish News (3 September 2014) <https://jewishnews.timesofisrael.com/opinion-lets-turn-fear-anti-semitism/> accessed 19 November 2020.
 Rosa Doherty, ‘Israel Advocacy Movement insists it held debate with neo-Nazi ‘to show how evil’ far-right is’ The Jewish Chronicle (19 June 2019) <www.thejc.com/news/uk/israel-advocacy-movement-insists-it-held-debate-with-neo-nazi-to-show-how-evil-far-right-is-1.485571> accessed 7 December 2020.
 Daniel Sugarman, ‘You can call Corbyn an antisemite but you can’t call for him to resign, Charity Commission tells CAA’ The Jewish Chronicle (30 October 2018) <www.thejc.com/news/uk/campaign-against-antisemitism-changes-petition-name-after-charity-commission-intervention-1.471771> accessed 19 November 2020.
 Asa Winstanley, ‘We “slaughtered” Jeremy Corbyn, says Israel lobbyist’ The Electronic Intifada (10 January 2020) <https://electronicintifada.net/blogs/asa-winstanley/we-slaughtered-jeremy-corbyn-says-israel-lobbyist> accessed 19 November 2020.
 Campaign Against Antisemitism, ‘JVL produces guide to deceive voters that Labour “has done nothing wrong”’ (23 November 2019) <https://antisemitism.org/jvl-produces-guide-to-deceive-voters-that-labour-has-done-nothing-wrong/> accessed 19 November 2020; Campaign Against Antisemitism, ‘CAA applauds Hastings Borough Council for adopting International Definition of Antisemitism’ (26 October 2020) <https://antisemitism.org/caa-applauds-hastings-borough-council-for-adopting-international-definition-of-antisemitism/> accessed 19 November 2020.
 Adam Wagner, ‘Antisemitism in the Labour Party: the EHRC’s report and its impact’ Counsel (6 November 2020) <www.counselmagazine.co.uk/articles/antisemitism-in-the-labour-party-the-ehrc's-report-and-its-impact> accessed 7 December 2020.
 Sienna Rodgers, ‘Exclusive: Labour thanks local party officers enforcing ban on motions’ LabourList (8 December 2020) <https://labourlist.org/2020/12/exclusive-labour-thanks-local-party-officers-enforcing-ban-on-motions/> accessed 9 December 2020.
 Williamson MP v Formby  EWHC 2639 (QB).
 Clare Collier, ‘Investigation into the Labour Party’ EHRC (28 May 2019) <www.equalityhumanrights.com/sites/default/files/terms-of-reference-investigation-into-labour-party-28-may-2019.pdf> accessed 19 November 2020, p. 2.
 Sienna Rodgers, ‘Labour’s ruling body agrees EHRC draft action plan on antisemitism’ LabourList (7 December 2020) <https://labourlist.org/2020/12/labours-ruling-body-agrees-ehrc-draft-action-plan-on-antisemitism/> accessed 8 December 2020.