Background: The EHRC’s full statutory investigation into antisemitism in the Labour Party, in which CAA is the complainant

Campaign Against Antisemitism first approached the EHRC at the time of the Labour Party Conference in Brighton in 2017. The conference was so rife with antisemitism that Brighton and Hove City Council’s then Labour leader, Warren Morgan, told his own Party that he would not permit use of Council premises for the conference again. Mr Morgan later resigned from the Labour Party over its failure to address antisemitism. Following Campaign Against Antisemitism’s contact with the EHRC, the Chief Executive of the EHRC issued a statement demanding that the Labour Party prove “that it is not a racist party”.Campaign Against Antisemitism made a number of disciplinary complaints to the Labour Party between 2016 and 2018 about Jeremy Corbyn, including about his defence of the antisemitic Tower Hamlets mural in 2012, his Holocaust Memorial Day event in 2010, and his Press TV interview in 2012 (Press TV is an Iranian state broadcaster which Ofcom banned from broadcasting in Britain).

The Labour Party repeatedly refused to open an investigation into our complaints against Mr Corbyn, and consequently on 31st July 2018, Campaign Against Antisemitism formally referred the Labour Party to the EHRC over its institutional antisemitism.

Subsequently, the Jewish Labour Movement and Labour Against Antisemitism Ltd made further submissions, which supported our referral.

At the EHRC’s request, Campaign Against Antisemitism submitted detailed legal arguments in November 2018. We continued to provide additional legal arguments to the EHRC in relation to subsequent developments, resulting in the EHRC’s announcement on 7th March 2019 that it was starting pre-enforcement proceedings against the Labour Party.

Pre-enforcement Proceedings

Prior to the EHRC opening a statutory investigation, it entered into a pre-enforcement period of engagement with the Labour Party, allowing it to propose a plan of action and make representations to the EHRC giving reasons why enforcement should not commence, and offering to take action voluntarily, under the EHRC’s supervision.

During the pre-enforcement period, the Labour Party had an opportunity to make representations to the EHRC seeking to agree a plan of action that would remove the need for a statutory investigation by offering to implement certain measures against antisemitism, with the EHRC able to monitor compliance.

The Labour Party failed to satisfy the EHRC that it could be trusted to address the antisemitism issue itself.

Investigation (enforcement) process

Campaign Against Antisemitism asked the EHRC to open a statutory investigation under section 20 of the Equality Act 2006 into antisemitic discrimination and victimisation in the Labour Party.

On 28th May 2019 the EHRC announced a full statutory investigation, which enabled it to use its enforcement powers.

A summary of the terms of reference of the investigation can be found here.

Most significantly, the EHRC suspected that the Labour Party “may have itself, and/or through its employees and/or agents, committed unlawful acts in relation to its members and/or applicants for membership and/or associates.” Therefore “the investigation will consider whether the Party carried out such unlawful acts.”

The purpose of the EHRC’s investigation has been to consider whether the Labour Party carried out unlawful acts.

Once the statutory investigation was launched, the EHRC was able to use its powers to compel the Labour Party to reveal details of its handling of antisemitism in recent years, including internal communications such as text messages and e-mails. It is also within the EHRC’s power to seek court injunctions against the Labour Party to prevent further antisemitic discrimination and victimisation, and it can impose an action plan on the Party and enforce compliance with the plan.

The only previous statutory investigation ever conducted by the EHRC was an investigation into unlawful harassment, discrimination and victimisation within the Metropolitan Police Service.

The only other political party to have been subject to action by the EHRC was the British National Party, but that was not a statutory investigation.

The launch of a full statutory investigation by the EHRC into the Labour Party was an unprecedented development, resulting from the EHRC’s acknowledgement that the legal arguments made by Campaign Against Antisemitism were sufficiently compelling to merit investigating whether the Labour Party committed unlawful acts.

Content of our legal submissions

Campaign Against Antisemitism submitted hundreds of pages of legal submissions to the EHRC between 2018 and 2020 with the assistance of specialist human rights counsel Adam Wagner of Doughty Street Chambers and Derek Spitz of One Essex Court Chambers.

The hundreds of pages of Campaign Against Antisemitism’s submissions provided substantial details of incidents for investigation, including incidents directly involving Mr Corbyn.

In summary, Campaign Against Antisemitism made legal arguments that:

An unacceptable number of antisemitic incidents of unlawful discrimination, harassment and victimisation had occurred in Labour in recent years, at all levels of the Party.
Under Mr Corbyn’s leadership, Labour’s disciplinary mechanisms for dealing with antisemitism were significantly weakened, and the machinery of the Party was used to victimise those who stand up against antisemitism.
A culture of denial and victimisation developed in some sections of Labour in relation to antisemitism. For example, antisemitism allegations have often been described as “smears”.
The result of the toxic culture which surrounds the issue of antisemitism in Labour was that people who suffer discrimination were subjected to victimisation when they raised complaints or that they were reluctant to bring complaints in the first place.
Antisemitism in Labour should be judged according to the International Definition of Antisemitism, which Labour itself adopted in 2018 (under pressure) after its adoption by the Government and other major political parties.
Labour failed to put in place a fair and effective complaints and disciplinary process to deal with antisemitism.
There was substantial evidence that the problem of antisemitism in Labour became institutional.
Labour appeared incapable of resolving this issue of antisemitism itself.
There was sufficient evidence to warrant a section 20 statutory investigation by the EHRC into whether systemic unlawful acts occurred in the handling of complaints of antisemitism in relation to Labour officials, members and other representatives.

Labour’s reaction to the investigation

The announcement of the investigation following the referral by Campaign Against Antisemitism was, to date, the single most significant development in the fight against antisemitism in the Labour Party, a point acknowledged by both supporters and opponents of the investigation.

Campaign Against Antisemitism continued to receive strong backing from the mainstream Jewish community and was vilified by far-left factions within and without the Labour Party.

Some senior figures in the Labour Party, such as then-Shadow Foreign Secretary Emily Thornberry, then-Deputy Leader Tom Watson and Lord Falconer, welcomed the EHRC’s investigation (while admitting that it was shameful for the Labour Party to find itself subjected to such a probe). During the Labour leadership contest, the candidates, including Sir Keir Starmer, pledged to implement the EHRC’s recommendations.

However, some elements within the Labour Party tried to undermine the EHRC’s standing, and cast doubt on its independence and thus on its eventual findings, including the Labour leadership under Mr Corbyn and his allies within the Party, who saw the investigation as a threat.

During the 2019 General Election, Labour’s Race and Faith Manifesto pledged to “Enhance the powers and functions of the Equality and Human Rights Commission, making it truly independent, to ensure it can support people to effectively challenge any discrimination they may face.” The implication was that the EHRC was not an independent body but rather an arm of the Conservative Government and therefore that its investigation and subsequent report could not be trusted. At the time, Campaign Against Antisemitism called Labour’s pledge to reform the independent body conducting an investigation into the Party “sinister in the extreme”.

Similarly, in his first interview (given to a fringe blog) since stepping down as Leader of the Labour Party, Mr Corbyn said that the EHRC was made “part of the government machine” by the Conservative Party.

Other far-left Labour activists have claimed that the EHRC itself is racist, specifically against BAME people, or at least that it has prioritised addressing antisemitism over other forms of racism, and that this prioritisation is racist.

With the removal of Mr Corbyn as Leader, his allies turned their ire on the Labour Party as well, accusing it of institutional racism against BAME people rather than Jews. As proof, they cited a leaked internal report titled ‘The work of the Labour Party’s Governance and Legal Unit in relation to antisemitism, 2014 – 2019’, which conceded the scale of the antisemitism problem in Labour but purported to show that some staffers – particularly those allegedly antagonistic to Mr Corbyn’s leadership – had deliberately frustrated the Party’s efforts to address the antisemitism crisis and had made racist or misogynistic remarks toward BAME and women MPs. At the time, Campaign Against Antisemitism described the report as a “desperate last-ditch attempt to deflect and discredit allegations of antisemitism” and a “disgrace”.

The report is subject to an investigation by the Labour Party and its leak has reportedly led to libel and data protection complaints, not to mention threatsagainst Jewish complainants mentioned in the report. It was apparently intended that the report would be submitted to the EHRC, but it is understood that the Labour Party under Sir Keir’s leadership declined to do so.

Some far-left figures within Labour have tried to make the claim that the Party is indeed institutionally racist, but against BAME people rather than Jews.

When the first signs of this argument arose, Campaign Against Antisemitism said: “It is offensive to Jews and BAME people to suggest that tackling prejudice against either community is somehow at the cost of discrimination against the other, and it is an appalling sign of the lengths to which this far-left faction will go to try to exonerate itself from its own central role in Labour’s antisemitism scandal.”

Not just Jeremy Corbyn

Although Campaign Against Antisemitism’s referral of Labour to the EHRC was triggered by the Party’s failure to address our complaints regarding Mr Corbyn, those failures were cultural and institutional.

A culture of denial that antisemitism could exist on the ‘anti-racist’ far-left of the Party was institutionally cemented by the whitewash 2016 Chakrabarti Report. The Chakrabarti Report effectively served to protect the reputation of the Party, and therefore, in an affront to natural justice, recommended that Labour’s disciplinary procedures be kept secret. The result was a process that was not independent, transparent, fair, efficient or accountable.

Consequently, Campaign Against Antisemitism has not submitted further complaints to the Labour Party about MPs, councillors, officeholders and other members because the disciplinary process is not fit for purpose, a deficiency exacerbated by the former Shadow Attorney General’s Report. Sir Keir has since promised to introduce an independent disciplinary process but has not yet done so, and has ignored our calls for him to set out a timeline. Once the Labour Party introduces an independent disciplinary process, as Sir Keir has promised, Labour will have a backlog of complaints to address.