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Rule of the law and the EHRC report on antisemitism in the Labour Party

Posted on 06 November 2020

Katy Colton is the Head of the Politics and Law Group at Mishcon de Reya LLP, and acted for the Jewish Labour Movement in relation to the EHRC investigation into antisemitism in the Labour Party.

The Equalities and Human Rights Commission has published its long anticipated report into antisemitism in the Labour Party. The EHRC spent 2 years gathering and forensically examining evidence from various sources. The conclusion is stark and chilling: the Labour Party was not a safe place for Jewish members or for those in the Party that spoke out against antisemitism. On one level, it vindicates the hundreds of individuals who felt threatened by antisemitism within the Party (both Jewish and non-Jewish members) but who have been derided and accused of using antisemitism as an anti-Corbyn smear. Each complaint was met with the same trite response: the Party had a "zero-tolerance approach to racism". The denial of the issue only exacerbated the hurt and distress caused.  

Hope existed that the launch of the investigation by the EHRC into Labour (the only political party other than the far right BNP to have ever been investigated by the EHRC) would have caused an awakening in a party which pledges to tackle inequality in our society. Instead, in the wake of the publication of the Report we have witnessed from some quarters a resurgence in the vehement denials of the extent of the issue of antisemitism. These denials have also included attacks on the EHRC itself.

The EHRC was established by the Equality Act 2006 under a Labour Government. It operates independently and its statutory purposes include challenging discrimination, supporting the development of the protection of human rights and ensuring that each individual has an equal opportunity to participate in society.  The 2017 Labour Party Manifesto attacked the Conservative Government for cutting funding to the EHRC, stating that these "devastating cuts" revealed the "real attitude [of the Conservative Party], beyond the rhetoric, to issues of equality and discrimination". Yet, in June 2020 (and eighteen months after the EHRC opened its investigation into Labour), Jeremy Corbyn questioned the impartiality of the EHRC, accusing it of being "part of the government machine". Chris Williamson, the former Labour MP for Derby North and a named individual in the EHRC Report, has gone further.  He launched a crowd-funding campaign after he revealed he had been named in the draft report, stating that the EHRC had been "lobbied" by the "pro-Israel outfit" the Jewish Labour Movement or "JLM" (on whose behalf we acted as the main complainant to the EHRC); that the EHRC played "a leading role in derailing Jeremy Corbyn's leadership"; and has become a "right-wing attack dog".

On first take, it would not appear that there is much in common between Chris Williamson and the Home Secretary, Priti Patel MP.  However, the attack by Mr Williamson against the EHRC as "right-wing" and politicised is of a piece with the recent attacks by Priti Patel (and echoed by Prime Minister Boris Johnson) that the criminal justice system was being hamstrung by "lefty lawyers".  This narrative of "activist lawyers" also feeds in to the Terms of Reference of the Independent Review of Administrative Law Panel set up under the current Government to seek to ensure that judicial review "is not abused or used to conduct politics by another means". In all three examples, the work of independent bodies, whether the EHRC, immigration lawyers or the judiciary, is undermined by suggestions that they are acting with a political agenda. The political agenda  varies to suit the narrative being advanced: in the case of Mr Williamson, the EHRC is accused of being a right-wing body, while in the case of Ms Patel, lawyers asserting their clients' rights under the law are (in her view) necessarily left-wing.

Of course, Jewish members of the Labour Party are, unfortunately, likely to be familiar with this blue-print of attack. The EHRC Report found that acts of harassment by Labour Party members included Jewish members characterised as right wing, part of a wider conspiracy and controlled by Israel, drawing on classic anti-Semitic tropes. Attacks on the EHRC, lawyers and the judiciary are just as troubling.

The attitudes of both Mr Williamson and Ms Patel expose an increasing trend of delegitimising legal processes and the rule of law at all levels of public life. It is a trend apparent in the attacks on the judges in the Supreme Court at the time of the two Miller cases and is from the same playbook as President Trump's pre-emptive strikes on the voting processes in the US election. It profoundly diminishes the space for civilised discourse and is the legal parallel of the cancel culture movement. Its development undermines the processes designed to protect individuals from unlawful action in that it promotes a feeling of fear and threat about using them. 

In the case of the Labour Party, the JLM was forced to seek the intervention of the EHRC when the Labour Party's own processes for dealing with harassment and antisemitism not only failed, but perpetuated the problem. Put simply, there was no independent body which had the means – or, regrettably, the desire – to apply equality laws to its Jewish members and those members victimised for calling out antisemitism. The Party could not police itself. The regulator had to intervene. Analogously, the role of an independent judiciary is to scrutinise the use of executive power. The attacks on lawyers, the judiciary and regulators are all cut from the same cloth. They undermine a central facet of our constitution at the highest level and, below that, the checks and balances within our system of Rule of Law.

We hope that the publication of the EHRC report will be welcomed by the Labour Party and will establish a new era of disciplinary procedures within the Party founded on the rule of law. In this context, the response of the Labour Party will be critical, both in how it deals with implementing the recommendations and dealing with detractors. 

Katy Colton

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