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Rory O’Kelly finds many holes in the EHRC investigation into antisemitism in the Labour Party and big problems with the reaction

Recent years have seen repeated allegations of extreme antisemitic behaviour within the Labour Party, including abuse and threats at meetings, use of offensive terminology, crude stereotyping and accusations of disloyalty. It has been suggested, for example, that Jewish Labour MPs have been threatened to the extent of needing to move house or to use bodyguards. Previous investigations (e.g. Chakrabarti 2016) have not found problems at this level but have themselves been denounced as whitewashes.

Party members reacted with a mixture of horror and incredulity. There has been a strong desire for an independent investigation to establish how much truth there is in the allegations, and some hope that the EHRC report might do this.

This has not happened. The publication prompted a media rehearsal of the most lurid accusations but it does not confirm any of them or, indeed, address them at all. So far as substantive antisemitism (as distinct from the investigation of complaints) is concerned, it restricts itself entirely to events on social media.

It is a depressing but undeniable fact that anyone well-known, politically or otherwise, can expect to be abused and threatened on social media. Frequently such abuse focuses on particular characteristics. Jews are targeted for being Jewish, Black people for being black, women for their gender, gays for their sexual orientation, Muslims for their religion and so on. The EHRC does not ask whether the abuse of Jewish Labour politicians differs from this normal pattern in volume or type. It also does not ask how much of it comes from other Party members, though there are indications that some does.

Despite therefore the rather extravagant claims made for it, this report is narrowly focused and technical. Anyone who comes to it with big questions such as “What is it like to be a Jewish Labour Party member?” will be disappointed. To understand it, it is best to look quite precisely at the three areas in which it finds the Party at fault.

In two cases, the Labour Party is found guilty of ‘harassment’, which essentially means “creating an intimidating, hostile, degrading, humiliating or offensive environment” for people in specified categories. One case was Ken Livingstone, who had posted comments about Israel which some Jewish people (including members of the Labour Party) had found offensive. The comments were historical and political in nature and are not alleged to have included threats, obscenities, abuse of individuals or derogatory remarks about Jews generally. They could potentially have been covered by Article 10 of the European Convention of Human Rights which protects freedom of speech, including ‘offensive’ speech, and which the EHRC accepts as binding.

The Commission’s reasons for rejecting this argument are set out at length in an annex but remain opaque. They focus mainly on the level of offence caused, which seems scarcely relevant. Justified criticism of a person or institution is likely to cause as much offence as unjustified criticism, and perhaps more. There is also a rather amorphous concept of ‘legitimate’ criticism, which is defined in a footnote as “criticism that is not antisemitic”. Effectively, ‘antisemitic’ criticism of Israel is defined as criticism that is not legitimate and ‘legitimate’ criticism as criticism that is not antisemitic. Sometimes one suspects that the authors are having a bit of a laugh.

The other case concerns someone called Pam Bromley who seems, uniquely, to have posted comments which most people probably would regard as antisemitic in the normal sense of the word. These were made on her own initiative and there is no suggestion that ‘the Labour Party’, as normally understood, had any knowledge of what she was doing or any power to stop her doing it. Nonetheless, she was an elected Labour councillor and the EHRC, on the basis of some rather strained analogies with cases in contract and employment law, decided that this made her an ‘agent’ of the Labour Party which was thus responsible for everything she did. The lawyers can argue about the validity of this. If it is correct, the finding that people elected to public office are the agents of the Party that nominated them has constitutional implications going far beyond this report.

The second adverse finding concerns interference by the leadership in the disciplinary system. In the light of subsequent events this now seems rather comical. This point does not, however, rely on hindsight. During the last leadership contest, all the candidates signed a set of pledges put to them by the Board of Deputies of British Jews, including a pledge (no. 4) that various named individuals would never be re-admitted to the Labour Party. One wonders why the EHRC did not take the opportunity to reprove Sir Keir and his colleagues for this. Perhaps it took the view that because they are all Labour MPs it is actually the Labour Party which is responsible for everything they do.

The final, critical, and perhaps the most cogent finding concerns the rather shambolic functioning of the Party’s complaints procedure in cases involving antisemitism.

There is evidence in a leaked report that staff may have disrupted the complaints process deliberately to undermine Jeremy Corbyn. The EHRC refers to this but does not examine it – rather surprisingly since it seems obviously relevant. Perhaps under its doctrine of ‘agency’, Corbyn would have been responsible for undermining himself.

The real problem with the complaints system is more fundamental. The EHRC draws an interesting comparison with investigation of complaints of sexual harassment, which it says worked much better than those involving antisemitism. In both cases there was an issue of expanded definitions, in that words and actions which had previously been accepted as normal came to be regarded as problematic at best.

In the case of sexual harassment, the shift was largely consensual. Not a lot of people would now defend the immemorial right of the boss to pinch his secretary’s bum.

The situation was different with antisemitism. The use of this accusation to prohibit not only arguments previously regarded as legitimate but also references to undisputed historical facts is widely perceived as restricting freedom of speech, and this causes real anger, both within and outside the Labour Party, which shows no sign of subsiding.

The proper function of a complaints system is to establish facts and then apply the rules to them. It is not a good way of working out what the rules should be. This was the responsibility of the Labour Party itself, which however has failed to discharge it.

The informal position of the Party – formalised more recently by its adoption of the International Holocaust Remembrance Alliance’s definition – seems to be to imply very strongly, without actually saying, that any criticism of Israel is inherently antisemitic. This studied ambiguity may have political advantages, though it is not immediately apparent what they are. As a basis for a complaints system it is obviously completely hopeless.

The EHRC report would have been useful if it had started by proposing a solid and coherent definition of antisemitism on which people could at least have agreed to disagree. It attempted no such exercise.

Perhaps it felt that this would have been a waste of time. Almost the only thing which the Commission said was definitely not antisemitism was for people to “express their opinions on internal Party matters, such as the scale of antisemitism within the Party, based on their own experience and within the law”. We can see how much notice the current leadership has taken of that.

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