Truth Defence 24 November 2020

The EHRC Report is Neither Robust nor Reliable. It is Deeply Flawed

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The issue of antisemitism has been central to my personal and political life. My mother was a survivor of the holocaust, hidden in a cellar in Nazi-occupied Vienna for three and a half years. She lost 39 of her family members in the Shoah, primarily at Auschwitz and Theresienstadt. This family history has guided my values and concerns my entire life. As a South African Member of Parliament for Nelson Mandela’s anti-racist ANC, I was the first person to introduce a motion on the holocaust in the history of the South African Parliament. I have written and lectured on genocide prevention, including at Auschwitz for the Auschwitz Institute. Fighting racism and its devastating consequences, wherever it rears its head, in whatever form and whoever the perpetrators, has been, and continues to be my life’s work.


I have watched the Labour antisemitism ‘crisis’ unfold with a mixture of horror and outrage, as Jeremy Corbyn, a lifelong anti-racist, and the British left in general, have been accused of being antisemitic. As a Jewish member of the Labour Party I was expecting and hoping that a report by the EHRC would get to the truth of the matter, and that the organisation would be diligent and robust in its work. I had some initial concerns when it became public knowledge that some Commission staff and Board members have long-standing links to the Tory Party, and the Commission declined to investigate the Tories for Islamophobia on the absurd grounds that they should run their own investigation. But I have been shocked and disappointed by how outrageously flawed the report is – and how its findings have been ruthlessly and relentlessly misrepresented.


I introduced my first book ‘After the Party’ with a quote from the writer and activist Victor Serge who believed that “after all there is such a thing as truth.” It has guided my investigative work in the legally fraught world of the global arms trade, and it is essential to addressing the critical issue of racism and how to end it.


Sadly, the EHRC investigation is deeply flawed. Many of its findings of fact do not stand up to the most basic scrutiny and crucial evidence was ignored. That does not mean all its recommendations are faulty. But its conclusions nevertheless reinforced a dominant and demonstrably false narrative: that Labour under Corbyn was subsumed by a ‘culture’ that accommodated antisemitism and that this was principally a ‘failure of leadership’. The report whitewashed senior officials in the party who were factionally hostile to the leadership and who – for a period of three years until Jennie Formby took over as General Secretary – appear to have obstructed Corbyn’s efforts to introduce reforms, expedite the complaints process, and escalate sanctions for those facing substantive allegations of antisemitism.


The EHRC’s failure to get to grips with this essential truth is perhaps not surprising. In the week following the release of its report on antisemitism, the organisation was lambasted by the Joint Committee on Human Rights for failing to meaningfully protect the human rights of BAME people in the UK; the EHRC’s report into pay discrimination at the BBC was called a ‘whitewash’ by feminist groups and the complainants; and the Commission decided to appoint, as one of its commissioners, David Goodhart, who defended the government’s hugely controversial ‘hostile environment’ programme aimed at immigrants without indefinite leave to remain.


The EHRC’s Failure to Look at Crucial Evidence


In April 2020, an 850-page report into the handling of antisemitism complaints by the Labour Party was leaked to the media. The report painted a picture of vituperative factional infighting and a complaints system that, when run by the right-wing of the Party under General Secretary Ian McNicol, was profoundly dysfunctional.


The Labour Party staff who wrote the report undertook a huge and extensive investigation into the issue with the specific aim of answering the EHRC’s questions. The leaked report indicates that the Labour Party investigative team reviewed at least 100,000 emails on the Labour Party servers, sent between Labour Party officials on Labour Party computers using Labour Party email addresses. Of these, it identified 10,000 emails in 3,000 conversation chains, which it considered to be relevant to the EHRC’s questions. It also uncovered lengthy messages sent via work WhatsApp groups and via the Labour Party’s internal messaging service. Vitally, the investigations team not only extracted the 10,000 emails, but collated them into an ordered format, and attached it to support the findings of the leaked report.


The leaked report makes it abundantly clear that the emails were profoundly relevant to the EHRC’s investigation. However, for the most spurious reasons, the EHRC decided not to ask for them. In the final report, the EHRC says the following with regards to the leaked report and its underlying evidence:

After the Labour Party submitted its final evidence to us, an 850-page report titled ‘The work of the Labour Party’s Governance and Legal Unit in relation to antisemitism, 2014-2019’ was leaked to the press on 12 April 2020. We were not informed that this report was being prepared and it remains unpublished. It was not proportionate for us to require the Labour Party to provide the evidence underlying the report. We have considered the leaked report and taken it into account where appropriate. However, we have done so while bearing in mind that we have not seen all of the evidence on which the conclusions in the leaked report were based.

This is crucially important because it shows that whilst the EHRC made selective use of the report, it actively chose not to ask for the underlying evidence on which it was based. If an investigation by a statutory body turns a blind eye to evidence it knows exists, which is vitally relevant to its terms of reference, and which is already collated and organised into an easily accessible format, it simply cannot be considered a full, fair and meaningful investigation.


This was precisely the basis on which my colleagues and I worked to overturn a whitewashing South African Commission of Inquiry into a deeply corrupt arms deal last year. Following the successful litigation, the report of the inquiry was set aside. Together with civil society in South Africa we are now attempting to have the judges who ignored vital evidence impeached and possibly even prosecuted.


The EHRC absurdly claims that it was not ‘proportionate’ to ask for this evidence, having done just that before it became aware of the leaked report’s existence.


Questions must also be asked of why Labour did not send the evidence as a matter of course. As we noted above, in 2019 the EHRC made a request for evidence. This was a request made under the powers of compulsion granted to the EHRC. The Labour Party thus had an obligation to hand over this evidence.


And yet it never did so. Meanwhile, some of those who – according to the leaked report – were responsible for gross failures in complaints handling received damages in libel settlements announced by the party earlier this year. The decision to settle – apparently taken by the party’s new leadership – ran contrary to its own legal advice which considered the cases brought by the former staff (and Panorama presenter John Ware) highly unlikely to succeed in court.


All this bears the hallmarks of an institutional cover up.


An Extraordinary Blindspot


Ignoring vital evidence was not just wrong per se, it fatally undermined the veracity of the EHRC’s conclusions. Chief among them was the notion of ‘political interference’ in complaints by the former leadership under Jeremy Corbyn.


It is undoubtedly true that the leader’s office did intervene in the handling of specific antisemitism complaints, and made appeals to the complaints body for swifter and tougher action. This much is perfectly consistent with the party’s rule book which assigns responsibility to the leader to “uphold and enforce” the party’s constitution.


But for the EHRC to label this as “political interference” required a spectacular lapse of reason. It ignores the reality of a dysfunctional and recalcitrant complaints bureaucracy under the control of factional staff who were bitterly opposed to the leadership on ideological grounds. This is the broad thrust of the leaked report and the underlying evidence on which it is based.


Such a finding also ignores that such ‘interference’ occurred at a time when controversy surrounding antisemitism within the party was at fever pitch, with demands by mainstream Jewish organisations being made in public – and directed explicitly at the leadership – to take action in ensuring that complaints were dealt with more swiftly and robustly. What, in the circumstances, could reasonably have been done, except to try and force a purposefully dysfunctional bureaucracy to do its job better? And the way this was done was not for the leader’s office to issue edicts and judgments as it saw fit, but rather to provide advice on specific cases, when it was asked to do so by the staff in the complaints department.


Indeed the EHRC partially acknowledges, but then gives no weight to the fact that where the leader’s office sought to expedite complaints investigations and encourage harsher disciplinary action against antisemitic members. Yet once again it somewhat absurdly claims that this was immaterial: any intervention by the ‘leadership’ could be considered prejudicial to complainants, even if it was explicitly aimed at a more rapid and substantial resolution in their favour.


A Party without Politics


As Peter Oborne and Richard Sanders have already compellingly illustrated, the EHRC’s report makes no attempt to acknowledge that the Labour Party is a political party, where different factions rise and fall, and where there is constant contestation over pretty much everything. This much is abundantly clear in the leaked report. In particular, a right-wing faction led by the former General Secretary Ian McNicol apparently mourned the fact that Corbyn’s Labour outperformed expectations in the 2017 election. This faction controlled the complaints mechanism between 2016 and 2018.


And it was during this period that the complaints system was a dysfunctional mess, according to both the EHRC and the leaked report. One email inbox that was used to receive complaints was simply not monitored. The leaked report suggests that as many as 170 complaints of antisemitism were simply ignored during this period. And when Corbyn’s team tried to find out why complaints were taking so long, or how many complaints there even were, they were given incorrect figures and statistics.


The EHRC made no mention of this, nor of a letter sent by Jeremy Corbyn to McNicol in February 2018 raising concerns that antisemitism complaints were not being acted on and that recommendations from the Chakrabarti report had not been implemented. According to the leaked report:

Jeremy Corbyn wrote to Iain McNicol in February 2018 saying “it is clear that the current processes are far too slow to meet the volume of disciplinary cases the party has to deal with”, yet “no procedural changes to the Party’s disciplinary processes have been brought forward by Party staff for consideration by the NEC”. Corbyn also expressed concerns that the Chakrabarti recommendations had not all been implemented and he relayed concerns raised with him and his office from the JLM, Luciana Berger MP, other MPs and Jewish members. Corbyn wrote “it is a cause for real concern that Jewish voices from across the political spectrum of the Labour Party still feel that we do not take antisemitism seriously enough”.

It was only when McNicol was replaced with the Corbyn ally Jenny Formby that things began to change. And they changed radically. In 2017, when the right-wing faction controlled the complaints mechanism, there was one expulsion for antisemitism from the Labour Party. In 2019, when the complaints mechanism was under the control of Formby, there were 45.


The EHRC report acknowledges this improvement on multiple occasions, referring vaguely to the periods between 2016 and 2018 as particularly bad, and that it improved thereafter. But nowhere does it make clear the implications of this change: that the complaints process was a shambles under a right wing faction that disingenuously blamed Corbyn for delaying how antisemitism complaints were handled, and when Formby, a Corbyn ally, took over the Labour Party machinery, the process rapidly improved. Instead, the EHRC makes broad findings about some nebulous ‘failure of leadership’ under Corbyn, putting at his door the apparent incompetence and/or cynicism of a faction that loathed him and refused to listen to him – but then not giving Corbyn’s team any credit for acknowledged improvements in the system.


Having read the leaked report, the EHRC report appears surreal: There is no mention of this factionalism. The staff members who served between 2016 and 2018 are not named. But the names of the team that took control in 2018 – Corbyn’s team – are mentioned throughout the report. Ian McNicol’s name is not mentioned once in the report; Formby is discussed 13 times.


The Politics of Presentation


In politics, presentation is everything. What is particularly disturbing is how the EHRC decided to introduce and explain the report to the wider public. On the second page of the Executive Summary, the EHRC finds that ‘our analysis points to a culture within the party that, at best, did not do enough to prevent antisemitism and, at worst, could be seen to accept it.’


But the EHRC was in no position to make this finding. Setting aside the Commission’s refusal to acknowledge factionalism, nowhere does the EHRC identify what this culture consisted of. Instead, the report implicitly conflates this ‘culture’ with its alleged ‘failures of leadership’:

We have identified serious failings in leadership during the period the investigation looked at, and an inadequate process for handling antisemitism complaints across the Labour Party. While there have been some improvements in how the Labour Party deals with antisemitism complaints, our analysis points to a culture within the Party which, at best, did not do enough to prevent antisemitism and, at worst, could be seen to accept it.

Yet this conclusion does not even follow from the highly selective evidence on which the EHRC relied, including a ‘sample’ of examples in complaints handling, none of which involved the leadership acting to protect those facing substantive allegations of antisemitism.


We might have thought that to draw such broad conclusions about an apparently pervasive ‘culture’ in the party, the EHRC might have surveyed the attitudes and beliefs among members, or representatives of Labour’s governing body.


But it gets worse. In all but one of the cases of substantive allegations of antisemitism which the EHRC did examine, the individuals in question were either suspended, expelled or resigned once disciplinary proceedings were imminent. This should arguably have happened quicker and in a more transparent manner. But having a dysfunctional and factionally-ridden complaints system (that the report acknowledges improved substantially once Formby took over), is not the same as having a system that sought to protect, defend and exonerate antisemitic conduct; or, in the words of the EHRC, to ‘accept it.’


Indeed, as the final report notes, the Labour Party, in response to legitimate concerns about the handling of complaints, acted swiftly to clarify its rules regarding anti-Semitic conduct in its Rulebook and, under the leadership of General Secretary Jenny Formby, sought to correct and rectify the many deficiencies in the handling of all complaints, with a specific focus on antisemitism. This led to a dramatic increase in the number and speed of disciplinary actions.


The EHRC report is also strikingly vague about what constituted ‘the leadership.’ In fact, ‘the leadership’ is not defined. At times, it is just LOTO; at other times, it is the General Secretary. However, as soon as the report was published, EHRC staff made clear exactly who they had in mind. Commissioner Alasdair Henderson, who led the investigation on behalf of the EHRC, told the media that the ‘ultimate responsibility’ lay with Corbyn as he was leader. This amounted to editorializing the report’s findings, stating things that the report itself did not say. If the EHRC believed that, it should have said so in the report – and allowed Corbyn’s team to respond to that explicit claim prior to publication.


What followed the EHRC’s report was an even more extraordinary injustice: the suspension of Corbyn from the party of which he had been a member for 54 years. Starmer – his successor as party leader – almost laughingly claimed that he played no part in this decision, as would be consistent with the EHRC recommendations that he had endorsed. Yet no sooner than he made such a claim, he made clear in a radio interview that “I am not afraid to take difficult decisions and we took a difficult decision” in regard to Corbyn’s suspension.


The basis of his suspension was Corbyn’s statement in response to the EHRC report. This acknowledged that no one should deny or diminish the seriousness of antisemitism within the party, but also pointed out the salient fact that the scale of the problem had been ‘overstated’ by political opponents. This much is obvious even judging by the very limited evidence contained within the EHRC’s report. That evidence doesn’t even remotely suggest that Labour under Corbyn’s leadership was ‘engulfed’ with antisemitism or that Corbyn himself is antisemitic – both of which have constituted a dominant narrative for much of the past three years. Even Angela Rayner – Starmer’s deputy – acknowledged that this statement “may well be true” whilst at the same time describing it as “completely unacceptable”.


The outrage this triggered prompted an unusually hasty panel hearing following which Corbyn’s membership was reinstated, only for Starmer to then withdraw the whip, effectively ending Corbyn’s extraordinary 37-year hold as Labour MP for Islington North; an MP with an unparalleled record as an anti-racist campaigner and supporter of Jewish causes both in and out of Parliament.


This travesty of justice will not go away.

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