Labour and antisemitism, some thoughts

I have now read the EHRC Report, Investigation into antisemitism in the Labour Party, and this is what I think needs to be done. I have published some thoughts already and I believe that it is necessary that the Labour rectify its rules and culture to make it a place where discrimination is both absent and shunned, where perpetrators have the opportunity for contrition and that suspensions and expulsions are a last resort applied only after a fair trial. I am particularly incensed to find there has been no policy nor procedures to guide the investigation nor the determination of discrimination complaints because it’s so basic. However, before I look at the specific recommendations, I want to look at some context. The first is Human Rights law, and the second is that the failings are so basic that anyone of good faith will insist that any remedy is applied to all complaints and disciplinary processes and affairs because the failings are systemic, not specific to handling antisemitism complaints.

Human Rights

The report talks about the Article 10 of the European Convention on Human Rights and the rights of members of the Labour Party; Article 10 is the right to freedom of speech and information. The Report says less i.e. nothing about Article 6 which is the right to a fair trial and includes the presumption of innocence and nothing about Article 11 which is the right to a freedom of association which applies to trade unions and political parties. Parliament’s joint committee on human rights has recently published a report on the role of human rights law, the EHRC and racism; its public summary includes the following,

The Commission needs adequate resources. And its enforcement powers must be strengthened to enable it to undertake investigations where it is suspected that an organisation has breached the Human Rights Act 1998 and provide legal assistance to individuals in Human Rights Act cases.

Joint Committee on Human RIGHTS

I.e. their capability, is weak on human right concerns and thus, the underemphasis on the Labour Party’s human rights commitments is not unexpected. It is wrong that the discovered failures in documentation and process, failures which include the decisions to administratively suspend and to announce these decisions and their remedies are not placed in the context of the right to a fair trial. The leaking is also, obviously, a breach of data protection law and the right to privacy, which is protected by Article 8, the right to a private life and such behaviour was criticised in the Chakrabarti report.

Another aspect of the report is that they argue that complaints should be tested through the lens of the Equalities Act harassment laws rather than as a hate crime, which would, as far as I can tell involve prosecution under other legislation (sections 28-32 of the Crime and Disorder Act 1998 and sections 145 and 146 of the Criminal Justice Act 2003). Article 19, a campaigning organisation on free speech, produced a policy brief entitled, “Prohibiting incitement to discrimination, hostility & violence” in which they make recommendations on definitions and the desirable laws. Despite being a free speech campaigning body, they recognise that UN declaration and its derived international adoptions require states to prohibit the advocacy of violence, discrimination and hostility. This confusion as to which laws to seek to implement in our rules needs to be resolved as does the point at which the Labour Party forwards complaints to the Police as to fail to do so means that the Labour Party is covering up a crime and failing to meet its safeguarding responsibilities. Of course, one reason for emphasising Equalities law is that determining guilt prioritises the victim, as we can see with the current discussions around Priti Patel and the allegations of bullying in the Home Office, where Johnson has wrongly decided that intent is a factor. In the case of harassment and bullying, if the victim feels, their dignity violated or that they are the victim of intimidating, hostile, degrading, humiliating or offensive acts, then that is so. Human rights law and Article 10, the right to free speech, defends the right to offend.

I have thought for a long time that compliance with the ECHR should become part of Labour’s rules., thus guaranteeing rights to a fair trial together with freedom of speech and the right to be treated with dignity.

Justice for all

The EHRC restricted itself to reviewing Labour’s behaviour with respect to the handling of antisemitism complaints. There is no evidence that the Labour Party’s policies and procedures are any better for other types of complaints, other than complaints about sexual harassment, where the Report states,

… sexual harassment complaints, which includes a clear policy and procedure, guidance to complainants about what sexual harassment is, access to an independent specialist advice service and a dedicated portal[1] for making a complaint.

Investigation into antisemitism in the Labour Party

Since neither the EHRC nor it seems the Labour Party monitor such complaints, it is not possible to know if these reforms limited to sexual harassment have had the effect of meeting the Party’s performance goals, which I assume to be, of being a place of safety from sexual harassment. My informal enquiries lead me to conclude that while the policies are in place, the lack of monitoring makes them less effective than hoped.

The Labour Party in an attempt to improve the antisemitism complaints handling process has  changed its rules three times (Conference 2017, 2018 & 2019), the 2017 amendment removed the free speech defence, the 2018 amendment made breach of codes of conduct disciplinary offences and gave the GS powers to delegate their authority to people other than staff, and 2019 introduced ‘fast track’ process where the NEC and not the NCC heard cases related to discrimination without hearings. These developments show that the Labour Party took the problem seriously but focused on end stages i.e. the determinations of the process and in doing so, ignored the investigation and decision to prosecute which the EHRC has excoriated. The Party also in making these changes created a special class of complaint, that of discriminatory behaviour, which is treated differently to bullying, slander, thuggery and breaches of the rules for factional advantage. It is also treated differently to offences against the electoral unity rules where a more summary form of justice is exercised.

The failings identified of not having written policies, standards and sanctions and not measuring the system’s performance against these policies and procedures is basic and all complaints need to be treated under a rigorous, fair and proportionate system conforming to the principles of natural justice meeting the human right’s need for a fair trial.

Day of shame

While it’s a day of shame, much of the shame is just how basic some of the recommendations are and for how long these issues have been inadequately dealt with, despite the two inquires by the Labour Party, the House of Commons Home Affairs sub committee inquiry into antisemitism and three rule changes.

A fair process, offering certainty

In the executive summary on pages 7-10, the EHRC report lists a series of failings which I summarise as a failure to have a policy on complaints handling, investigations, sanctions and administrative suspension, a failure to have a policy on information sharing, breach of good practice[2] on information sharing, no policy on record keeping and significant failures to keep adequate records related to the investigation and determination stages, together with poor records of decisions on sanctions & acquittals. They also identify a failure to adequately advise members of the NEC and NCC with independent legal advice, where such advice was only made available to the NCC in cases with a high reputational risk to the Labour Party. It notes that the complaints and investigations staff were not adequately trained, a failing left over from the Chakrabarti Inquiry.

The purpose of instigating effective processes must be to ensure a fair trial that embeds a presumption of innocence and to allow the Party to prove that this is the case. I repeat that a fair process is required for all complaints, not just those involving antisemitism.

On the question of education and training, the JVL have posted an article, “Saving Education from the EHRC report”, in which they argue that, the aim of education in antisemitism is to reduce it, not to be seen to be taking a tough line to enhance one’s image or to garner votes, and that the Labour Party must develop an approach that is about education and prevention rather than detection and punishment. It is crucial that Labour’s complaints investigation and determination processes are staffed by trained, skilled and knowledgeable people, and education must not become a sanction. The Chakrabarti report identifies, “nervousness that one strand or another in the Party’s thinking should be given a privileged position in relation to describing and disseminating the boundaries of acceptable attitudes and behaviour” and also that complaint handling staff should be appropriately trained. The EHRC report chapter on Training recommends that the Party commission & deliver education and training for all involved in antisemitism complaints handling, that training be undertaken by all those found guilty of antisemitic behaviour, and latterly of all staff, officials and members with positions of responsibility. The EHRC argues in its recommendations that these education and training programmes[3] are developed in conjunction with Jewish stake holders; provided that Chakrabarti’s fears are taken into account, there can be no problem with this. However, if we are to mandate training on antisemitism, we must also do so for all racism, sexism, homophobia, transphobia, other religious discrimination and disability discrimination.  

Independence

In terms of rebuilding confidence in our complaint handling process, the EHRC recommend in their executive summary on page 13,

In line with its commitment, and as soon as rule changes allow, commission an independent process to handle and determine antisemitism complaints. This should last until trust and confidence in the process is fully restored and should ensure that independent oversight and auditing are permanently embedded in the new process.

Acknowledge, through its leadership, the effect that political interference has had on the handling of antisemitism complaints, and implement clear rules and guidance that prohibit and sanction political interference in the complaints process.

Investigation into antisemitism in the Labour Party

They make further recommendations related to policy and procedure which I have covered above and believe to be basic.

The issue of independence recommended by the the EHRC engages Labour’s members human rights under Article 11, the freedom of assembly and association, which says,

This right has been reinforced by courts around the world. Human Rights are universal and designed to protect people against the actions of the State. Political Parties are an expression of this right and their abolition or malicious regulation is the second things that dictatorships do on their road to tyranny. Freedom of association can only be defined collectively by the members of that association and the final sanctions of expulsion must be taken by the association i.e. by Labour’s members. Any other organisational relationship means the Party ceases to be a free association as that association’s boundaries are regulated by someone else.

The NCC or something like it must be retained[4] and keep its powers, or have them restored, as the sole decision maker on expulsions. They should receive independent legal advice, independent of the leadership, and the complaints department.

The rights to freedom of association means that the Labour Party can and should define the advice from both the House of Commons Home Affairs committee and the Board of Deputies as external to our association and thus ignore the advice should we choose as further infringements on the membership’s freedom to associate. Human Rights protect people against the State and there is no doubt that House of Commons is an arm of the State. I recognise that the EHRC must consider the law if not Govt. policy as its guiding principles but as a free association we have the right to choose to reject advice not backed by legislation.

To handle and determine antisemitism complaints

Throughout the report they talk of the NCC, yet nothing in the report suggests that EHRC think the NCC itself should be abolished or handed over to an independent body; a fair process embedding the principles of a fair trial and a presumption of innocence can be determined by the NCC. We might want to consider if the ‘fast track’ meets this test[5] since there is no right to a hearing i.e. the defence case is not seen to be put by the accused. But basically, I argue that Party members’ rights to organise and associate mean that final determination of all cases of expulsion must be taken by a Labour Party entity, which under today’s rules means the NCC & NEC. The EHRC report has identified that the NCC only rarely receives independent legal advice. It is axiomatic that the NCC should receive independent legal advice, independent of both the Leadership, the GS & NEC and the presumably new investigatory unit[6]. I note that Article 6 guarantees the accused a choice of representative and that the state should pay for it if the accused cannot afford it; Labour’s current rules do not meet these rights.

We should note that throughout the EHRC report,  that the key criminal failings are identified as ‘political interference’. They are referring to political interference by the Leadership and their determination does not take motive into account. Any new process must insulate itself from the Leadership and the General Secretary and this should have started from day one.

Factionalism

The Labour Party needs a disciplinary process that is complete, fair and conforms to the rules of natural justice covering all complaints including those of discrimination but also bullying, slander, thuggery and breaches of the rules for factional advantage.

The Party’s bureaucracy and membership is riven with factionalism and the leaked, proposed evidence to the EHRC shows there is a case to answer that improper behaviour including the destruction of records has been commonplace.

I believe that the Nolan Principles need to be written into the rules, although this is not enough, those guilty of improper behaviour need to be investigated, and if there is a case to answer, given the chance to defend themselves and if guilty disciplined and sanctioned. It would be better to have a leadership that wanted to do the right thing because it was right, but if we can’t have that they should fear the consequences of improper behaviour; it’s clear they don’t.

Dave Levy

It may be that the Labour Party needs a truth and reconciliation commission to investigate the issues of factionalism and improper behaviour and if there are any guilty sanction them, which would include referring suspected malefactors to the police. The Labour Party is fortunate that as it is not incorporated and thus it cannot be prosecuted for covering up corruption. (This would seem to be a massive loop hole, politicians failing to make a crime of things they might be guilty of themselves.)

Institutional racism

Institutional racism is that which, covertly or overtly, resides in the policies, procedures, operations and culture of public or private institutions – reinforcing individual prejudices and being reinforced by them in turn.

Institute of race relations

Well! Just because the EHRC didn’t say so, doesn’t mean it isn’t true. What they said is that we have no policies and procedures and that what we did was criminal and permitted acts of harassment against Jews.

Getting better

It is clear from the report that things improved when Jenny Formby became GS, but the EHRC looked back to 2011. The EHRC states several times that the failure to act on the Royall & Chakrabarti Inquiries is a failing and evidence of Labour’s complicity in the inadequacy of its processes. Much of the failure needs to be placed at the door of the then incumbent General Secretary, Iain McNicol and the NEC members that allowed him to act with impunity. It should be noted that over 10,000 complaints were lodged over the summer of 2015, leading to over 5,000 investigations, all of them conducted with no policy.

Understanding the Party

The EHRC Report clearly does not understand how the Party works. It’s persistent quoting of leader’s statements as policy or management goals reflects this. Conference has never committed to ‘zero tolerance’ despite the EHRC referencing speeches by Watson, Corbyn and Starmer, and now we will find some quoting back the goal of zero-tolerance as approved by the EHRC; it is not. It is caveated by statements including the word ‘if’ or the “new leadership’s” goals. There are numerous quotes ascribed to the new leader, which they admire but they are not Labour’s policy, we are unclear if they are new policies, and some of his goals will require rule changes which is in the sole power of Conference.

They repeat the misunderstanding that the NCC can only hear ‘fast track’ appeals on procedural grounds. They can hear an appeal on the grounds that the evidence doesn’t justify the sanction or that a decision without examining witnesses would be unfair.

ooOOOoo

The CLP route (C6.II) to discipline needs to be abolished, it is not possible to insulate it from factionalism or give the accused the necessary privacy that innocent until proven guilty warrants.

The document style and format is hard to use. The same evidence, often presented with slightly different words is used to justify multiple recommendations, there is no omnibus recommendation list, paragraphs are not numbered and Chapter 10, entitled “A failure of leadership” reads like an afterthought and is certainly mistitled. It relies on the commitment to zero tolerance which is not policy and fails to identify that the failure to have a policy is that of all the NEC collectively.

Harassment is Unwanted conduct [related to a relevant protected characteristic], which has the purpose or effect of violating an individual’s dignity or creating an intimidating, hostile, degrading, humiliating or offensive environment for that individual.

Probably from the Equalities Act but these words have been taken from the EHRC report.

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[1] This is not good enough, the IT failings in complaint handling are more pervasive than not having a portal. Record Keeping is poor and work flow not automated. See the EHRC report on missing/lost documentation. See On Deletion & Doing Record Management well by me, on my linkedin blog.

[2] This refers to the use of email other messaging technology, with and without message logs.

[3] If we are to mandate training on antisemitism, we must also do so for other racisms, sexism, homophobia, transphobia, other religious discrimination and disability. 

[4] It should  be noted that the EHRC only recommends independence for antisemitism cases and so the NCC would remain in position for all other disciplinary cases, which is a nonsense.

[5] It does not meet the minimal standards of Article 6, there is no right of representation, no right to call witnesses, no right to challenge the evidence of others. (It’s a disgrace!)

[6] It should also be considered if the NEC, responsible for running the party and managing reputation risk should be excluded from the disciplinary process; it was until 2019 when the fast track was introduced.