On Thursday, The Equality and Human Rights Commission (EHRC) released its report after its lengthy investigation into alleged institutional antisemitism in the Labour Party. It states the findings of the EHRC’S lawyers, and whether they believe the Labour Party unlawfully discriminated against Jewish people, for either their race or religion, in the period between 11th March 2016 and 28th May 2019. To have unlawfully discriminated against Jewish people, the Labour Party must have contravened at least one section of the 2010 Equality Act, which was a law introduced by the Labour government under Gordon Brown, to curb systemic discrimination against minority groups. If you wish to read the report, in full, it can be found here.

To ascertain whether the Labour Party had broken the 2010 Equality Act, the EHRC collected evidence from a number of individuals and organisations. This included testimony from the Labour Party, the Jewish Labour Movement, Campaign Against Antisemitism, Jewish Voice for Labour and a number of individuals (whistleblowers). This evidence was compiled and summarised in 70 case studies that were viewed as representative of the disciplinary processes and political culture of the Labour Party during the time under investigation. If only a handful of offences were deemed to have been committed in these case studies, this does not mean that only a small number of offences occurred across the entire Labour Party during the period under investigation: it only indicates that a crime was committed in these specific case studies, out of the sample of 70 studied. The actual number of crimes committed across the broader Labour Party may be much greater.

The EHRC also notes in the report’s introduction the findings of the Chakrabarti Inquiry (2016) into antisemitism in the Labour Party, and the Royall Report (2016) into antisemitism at the Oxford University Labour Club, stating the EHRC’s aim to ascertain whether recommendations from them had been implemented effectively by the Labour Party during the period under investigation. The Labour Party’s disciplinary process for antisemitism complaints was also compared with Labour’s disciplinary processes for other types of infractions, such as sexual assault, to obtain an understanding of the broader disciplinary processes and culture within the Labour party. The EHRC hoped, in doing this, to reveal whether failure to take disciplinary measures occurred more frequently with regards to antisemitism than to other offences.

What Is Institutional Racism?

Institutional racism is the existence of processes, or a culture, in an organisation that lead to discrimination against a particular ethnic or religious group. The presence of individual racists within an organisation is not enough to indicate institutional racism: there must be evidence that the organisation’s structure and culture have unlawfully discriminated against a particular group. We have written a more detailed explainer on institutional racism and antisemitism here, which was published before the conclusion of the EHRC investigation.

Illegal discrimination can take many forms. The EHRC report distinguishes between direct and indirect discrimination: direct discrimination involves incidents that directly affect Jewish Labour members and are perpetrated by an individual. This includes incidents such as harassment. The Labour Party can only have been seen to have broken the 2010 Equality Act due to harassment if individuals in Labour who harassed Jewish members were reasonably understood to be acting on behalf of the Labour Party when they did so. In the report, individuals understood to be acting on behalf of the Labour Party are referred to as “party agents”, and can include anyone from the Leader of the Labour Party to elected Councillors and members of Labour’s National Executive Committee. Lay Labour Party members are not viewed as party agents, and so harassment of Jewish Labour members by grassroots party members isn’t included in any assessment of law breaking. This context will become relevant later in this article.

Indirect discrimination involves organisational policies that may appear to be fair or equal in writing, but are deemed to discriminate in practice against a specific minority group. An example of this could come in the form of biased complaints processes: if, for example, in an organisation, disciplinary guidelines exist for all types of discrimination, but the processes are not applied with equal effectiveness for different minority groups, this would be deemed to be an instance of indirect discrimination. Both direct and indirect discrimination have the potential to break the 2010 Equality Act.

What Did The EHRC Find In Their Investigation?

The EHRC found that the Labour Party was responsible for three breaches of the 2010 Equality Act.

First, it found that the Labour Party had been responsible for harassment of Jewish Labour members in two instances, which contravenes section 10(4)(a) of the 2010 Equality Act. This occurred in the case of antisemitic comments made on national radio by former Mayor of London, Ken Livingstone. As he made these comments ostensibly in support of Labour MP Naz Shah (who apologised for her own antisemitic comments at the time), and on behalf of the Labour Party because he was then a member of Labour’s National Executive Committee, his comments were deemed to have been made in his capacity as a Labour Party agent.

Secondly, the 2010 Equality Act was breached in the case of antisemitic comments made on social media by Councillor Pam Bromley, who disseminated conspiracy theories stating that the Israeli lobby was responsible for Labour’s antisemitism crisis.

As stated earlier, these two cases are only two examples of direct discrimination out of 70 sample cases reviewed by the EHRC, and so do not constitute all the cases of harassment that might have occurred in the Labour Party during the period under investigation. The report also states that a further 18 cases of potential harassment reviewed by the EHRC were “borderline”, meaning there was not enough proof to demonstrate the law had been breached, or that the Labour Party was directly responsible. These cases included endorsements of Holocaust denial and Hitler.

In several of the cases investigated, the EHRC indicated that harassment had occurred, but it wasn’t certain whether the individuals in these cases had been acting on behalf of the Labour Party when they harassed Jewish members. As the EHRC was only investigating the Labour Party and not specific individual Labour Party members, these cases couldn’t be counted as a Labour Party breach of the Equality Act. For this reason, the argument that “the EHRC only found two cases of harassment over several years”, which has been promulgated on social media, is somewhat misleading. The report states regarding these cases that:

Their conduct included suggesting that complaints of antisemitism were fake or smears, which undermines the Labour Party’s commitment to zero tolerance of antisemitism and ignores legitimate and genuine complaints of antisemitism within the Party.

The EHRC also found that the Labour Party broke the law in its indirect discrimination against Jewish people, perpetrated by its political interference in its own disciplinary processes, which contravenes section 101(2)(1) of the 2010 Equality Act. The EHRC uncovered two unlawful instances of political interference in Labour’s disciplinary processes. The then-Leader of the Opposition, Jeremy Corbyn, and his office were involved in the processing of politically sensitive complaints between March 2016 and May 2019, and between March and April 2018, the Labour Party implemented a practice of referring all antisemitism complaints to the Leader of the Opposition’s office. Both of these actions are illegal. The report notes 23 instances out of the 70 examined in which the Leader of the Opposition’s office directly interfered with the complaints process, including one instance where it had interfered in a disciplinary case relating to Jeremy Corbyn himself. In this case, Jeremy Corbyn’s office had recommended a complaint against Jeremy Corbyn not be investigated.

The EHRC also found that the Labour Party breached section 101(2)(a) of the Equality Act when it indirectly discriminated against Jewish Labour members by failing to provide adequate training for those handling antisemitism complaints. The report notes in particular that the Labour Party provides high-quality, externally-sourced training for those processing sexual harassment complaints, but that a similar standard was not applied to antisemitism complaints despite this being a recommendation in the 2016 Chakrabarti Inquiry. Some antisemitism training was implemented in September 2019, but the report notes that this training was provided by Birkbeck University, and was more an academic course than useful training for those encountering real-life examples of antisemitism.

The report also notes many failures of the Labour Party’s antisemitism disciplinary process, which were not deemed illegal, but must be rectified. These included a policy that Labour Party members’ posting of third-party antisemitic content on social media was not sufficient to warrant investigation or sanction. Failures in record keeping and a failure to provide a consistent, codified disciplinary process were also noted. Victims routinely were not notified of decisions that had been made in relation to complaints they had lodged, and nor were those accused of antisemitism informed when a decision had been made. Many overt and clear cases of antisemitism received no sanction or investigation.

The Labour Party reported to the EHRC that it was too onerous and disproportionate a task for them to hand over data concerning use of informal communications related to the Labour Party disciplinary process. These would include details of WhatsApp messages relayed between staff members. However, a few months prior to the publication of the EHRC report, a dossier alleging that Blairite staffers had created Labour’s antisemitism crisis to damage Jeremy Corbyn’s reputation in the polls, was leaked into the public domain. This dossier comprised messages obtained by filtering over 400,000 WhatsApp messages between staffers. The report acknowledges there seems to be a discrepancy between what the Party’s leadership claimed could reasonably be relayed to the EHRC and what it was able to obtain when creating its own dossier. It says:

In fact, it appears that there were many instances of informal communications outside of the complaints process. The scope and scale of this informal handling of antisemitism complaints is unknown, but the leaked report referred to ‘thousands of messages exchanged on … an internal Party messaging service’ and 465,000 words in three WhatsApp groups.

The Labour Party did not volunteer these messages (such as WhatsApp messages and personal emails) when we requested relevant personal communications regarding antisemitism complaints. The Labour Party informed us that it would be disproportionate and too onerous to provide this material to us. However, as indicated above, it appears that a vast amount of this material was collated for the preparation of the Labour Party’s own leaked report. If the scale of informal handling of complaints portrayed in the leaked report is accurate, it fundamentally undermines confidence in the fairness of the antisemitism complaint handling process.

Finally, the report noted that political events seemed to alter the Party’s processing of antisemitism complaints, with high-profile cases being processed unfairly when compared with those of lay Labour Party members. In the example of former Labour MP Chris Williamson, the report noted that he was referred to an NCC disciplinary panel (which is reserved for the most egregious offences) but only after a public outcry, which had followed what some felt was an unduly lenient sanction after he had been shown to be responsible for sharing allegedly antisemitic comments. Prior to his referral to the NCC, he had been sanctioned only by receiving a written warning from the NEC. Williamson successfully challenged the decision to reopen the complaint against him, in the High Court.

What Happens Next?

The EHRC has issued the Labour Party an Unlawful Act Notice, indicating that it has breached the 2010 Equality Act and is therefore required legally to implement recommendations made by the EHRC. The Labour Party is thus required to create an action plan to prevent continued discrimination against Jewish people, which it must provide to the EHRC by 5pm on Thursday 10th December.

The Labour Party is given the option to appeal this verdict, and the EHRC’s findings, within six weeks of the report’s publication. The Leader of the Opposition, Sir Keir Starmer, has not indicated that he plans to do this. In his speech following the report’s publication on Thursday, he states he plans to implement all recommendations provided by the EHRC in full.

The EHRC’s recommendations cover a number of different areas, but include:

  • Living Up To A Zero-Tolerance Commitment: the EHRC makes recommendations regarding political leadership, an improvement to political culture and complaints, and a commitment to future liaison with Jewish community groups to engender trust;
  • Rebuilding Trust And Confidence In Antisemitism Complaint Handling: the EHRC recommends creating an independent complaints process that is transparent, has robust decision-making criteria, takes firm action on social media violations and is well-resourced;
  • Education And Training: the EHRC recommends the introduction of practical antisemitism training for all individuals involved in the antisemitism complaints process.  This training must be endorsed by and developed with Jewish community stakeholders;
  • Monitoring And Evaluating Improvements To The Process To Ensure Lasting Change: the EHRC recommends auditing, collation and quarterly publishing of data regarding the antisemitism complaints process, to monitor performance.

The recommendations are lengthy, but if you wish to read them in full they appear between pages 12 and 15 – click here.

The publication of the EHRC report findings is an important event in the history of the Labour Party. It is so far the second political party to meet the threshold for investigation – the first being the far-right fascist party the BNP. The last high-profile institutional racism case examined by the EHRC concerned the Metropolitan Police, and led to no issue of Unlawful Act Notices. The EHRC retains legal powers as part of its statutory functions, and so its findings are not akin to the publication of an average inquiry: its recommendations must be implemented or the Labour Party will face legal action. Now that the EHRC report has found that the Labour Party was responsible for the unlawful harassment of Jewish people, this may also pave the way for future legal action on the part of those victimised during the last few years of Labour antisemitism. What this means for the future financial viability of, and political support given to, the Labour Party, remains to be seen.

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