There is a story in the Talmud, a book of rabbinical law, which ends with God exclaiming that his ‘children have defeated him’. The moral of the story is that human reason is the primary source of wisdom, even more important than the judgment of a deity. But that final sentiment also describes how the Labour Party must have felt when last week the Equality and Human Rights Commission, a regulator it birthed in 2006, served the party with an unlawful act notice, its most severe sanction, for failing to protect Jewish people from discrimination and harassment.
The enforcement action was the culmination of a 17-month investigation into antisemitism, prompted by a complaint by Campaign Against Antisemitism, a charity which I acted for, and supported by evidence from the Jewish Labour Movement and Labour Against Antisemitism. The report described a ‘culture’ which was ‘at odds with the Labour Party’s commitment to zero tolerance of antisemitism’ and identified three unlawful acts.
First, it found there were ‘serious failings in leadership’ and that it was ‘hard not to conclude that antisemitism within the Labour Party could have been tackled more effectively if the leadership had chosen to do so’. Of the sample of 70 cases which the Commission chose to investigate, it found the Leader’s office had interfered with 23, including one about Jeremy Corbyn himself. This interference was indirect discrimination against Jewish people.
Second, that there was an ‘inadequate process for handling antisemitism complaints across the Labour Party’, and ‘multiple failures in the systems it uses to resolve them’. A significant number of antisemitism complaints were ‘not investigated at all’ and where they were the guidance on sanctions was unclear and inconsistent. The failure to put in place adequate training was indirect discrimination against Jewish people.
Third, it concluded that the Labour Party was responsible for unlawful acts of harassment against Jewish people. There were two such cases (involving a former mayor and former councillor) among the 70 investigated. These acts included using antisemitic tropes and suggesting that complaints of antisemitism were fake or smears. The report made clear that this represented the ‘tip of the iceberg’. In 18 other cases it found a person had committed conduct that could amount to harassment, and held a position of responsibility in the Labour Party, however there was not enough evidence to determine whether the Labour Party was legally responsible. It found that in ‘many more files’ there was evidence of antisemitic conduct by ‘ordinary’ Labour members.
The Commission made a number of recommendations, including commissioning an independent process for antisemitism complaints and, overall, to make sure it had a ‘system and culture that encourages members to challenge inappropriate behaviour and report antisemitism complaints’.
What legal impact will this report have? The most obvious effect will be on the Labour Party itself, which has been served with an unlawful act notice under s 21 of the Equality Act 2006 and required to prepare an ‘action plan’ by 10 December. Once an action plan is agreed with the Commission it can apply to a court within five years of the plan to force the Labour Party to carry it out.
The findings are not directly binding on courts. However, a court or tribunal, faced with a case about antisemitism, would likely consider a detailed report by the equalities regulator persuasive, particularly in relation to the definition of antisemitism. It is important in this regard that the Commission was clear that antisemitism can include a wide range of behaviour, including ‘suggesting that complaints of antisemitism were fake or smears’. A key aspect of the crisis within Labour was that Jewish people who experienced antisemitism were often told that they were manufacturing or exaggerating complaints. As an outcome of this report, such behaviour, including when it becomes systematic, will often be unlawful harassment.
Other institutions would do well to digest this report and consider whether discriminatory behaviour exists within the culture, systems and leadership of their organisations. As Sir William Macpherson concluded in relation to the Metropolitan Police when he investigated Stephen Lawrence’s death, institutional racism persists because of the failure of an organisation ‘openly and adequately to recognise and address its existence and causes by policy, example and leadership’. The clear implication of this report, in my view, is that these were also the failings in the Labour Party.
The report also shows that the Equality and Human Rights Commission is unafraid of taking on controversial issues and is capable of carrying out politically sensitive, but important, investigations. Other organisations, and particularly other political parties, should take careful note.
A final word on my personal experience of litigating this case for over two years. As a member of the human rights Bar, I never expected to be spending so much time on a case which would directly impact my own, Jewish, community. That was a great privilege and something I am proud of. However, one aspect I would prefer to have avoided is the personal intimidation which came along with my involvement, which included more than one complaint against me to the Bar Standards Board (all swiftly dismissed), antisemitic abuse online, threats of violence which resulted in me having to make a police report and even a member of my chambers resigning after he was exposed as being involved in an anonymous ‘troll’ account which was abusive towards me. No lawyer should have to endure that kind of conduct - no matter how controversial a case they are acting in. No lawyers should be abused for doing their job.
When I look back on this period, I believe that many of the difficulties were caused by a fundamental breakdown in basic civility and empathy, the ‘tolerance, decency and kindliness’ which David Maxwell Fyfe, a father of the human rights movement, considered were at the heart of human rights. It is a credit to the Equality and Human Rights Commission that it has, we may hope, played a role in restoring some of that decency to public life and to the Labour Party, which it has, in truth, not ‘defeated’ but made stronger.
Pictured above: Enough is Enough rally - the March 2018 protest in Parliament Square against antisemitism in the Labour Party.
Article published on 6 November 2020.