What to expect from the EHRC inquiry into Labour antisemitism

The Equalities and Human Rights Commission launched an investigation into antisemitism within the Labour Party in May 2019. The equalities watchdog is expected to conclude the probe imminently. Here is what we know about the inquiry…

What will it tell us?

In a briefing on the inquiry delivered by the party-affiliated Jewish Labour Movement last week, secretary Peter Mason said: “We are not going to get the answer to the question ‘is Labour institutionally antisemitic?’”. He said that was a political question. JLM has invited the EHRC to say that Labour is institutionally racist, however.

The EHRC investigation is specifically looking into “whether the Labour Party has unlawfully discriminated against, harassed or victimised people because they are Jewish”.

It is seeking to establish whether unlawful acts have been committed by Labour, and/or its employees, and/or its agents, and whether the party has responded to complaints of unlawful acts in a lawful, efficient and effective manner.

It will do so by considering submissions as well as Labour’s rulebook and the steps taken by the party following the Royall Report, the home affairs select committee report on antisemitism and the Chakrabarti Report.

What has the EHRC been sent?

The charity Campaign Against Antisemitism (CAA) made the initial referral to the EHRC. As the complainant, it has made regular submissions to the inquiry and is in ongoing contact with the body, LabourList understands.

JLM has made two main submissions. The closing document, leaked in its redacted form in December 2019, contained 70 testimonies from current and former party staffers and more than 100 testimonies from party members. It concluded that Labour’s “structures, processes, agents and employees have all contributed to creating an environment that is profoundly hostile to Jewish members”.

In between those submissions, campaign group Labour Against Antisemitism (LAAS) submitted evidence including a digital dossier that comprised over 15,000 screenshots of allegedly antisemitic online statements by members.

According to James Libson of law firm Mishcon de Reya who is representing JLM in the investigation, the commission has been presented with “voluminous evidence”. We know that this comes from party staff, ex-staff, MPs and members.

The EHRC will also be considering responses from the party itself, of course, as Labour will have been asked for evidence in relation to particular claims. The party’s main submission has been controversial as national executive committee officers reportedly turned down the opportunity to view it, despite the ruling body having legal responsibilities.

What about the leaked report?

The possibility that the 850-page leaked internal report on Labour’s handling of antisemitism complaints could be considered by the EHRC has been the subject of some discussion. The Jewish Chronicle reported that it could be incorporated into the EHRC inquiry.

But Libson told the JLM event that the Jewish affiliate had written to the EHRC “to ensure that they didn’t want to look at it”. He said: “They can’t take it into account, they won’t take it into account… It is purely a political thing in terms of why it was done, why it was leaked.”

Margaret Hodge MP agreed: “I don’t think it has anything to do with the EHRC inquiry at all, what it’s trying to do is distract from that. It’s the EHRC report that really matters.”

The leaked report was designed to be sent to the EHRC, but its submission was reportedly blocked by party lawyers. It is now itself subject to an independent investigation, which is due to report by mid-July.

Will the EHRC report mention individuals?

“It’s up to the EHRC,” Libson said, before adding that he thought the EHRC would be “a little reluctant” to call out individuals explicitly. The impression is that it will likely consider the institution as a whole. It is not considered beyond the bounds of possibility that individuals will be censured, though, either due to original actions or frustrating the investigation.

When will the report be published?

First, the EHRC’s draft report will be sent to the Labour Party for review for at least 28 days. Relevant extracts will also be sent to anybody who has charges levelled against them. During this period, the findings should be kept confidential – and it is possible that we may not know about it being sent. But as the party is prone to leaks, more information may emerge.

Before the report is settled, the party can make written representations to the Commission about the draft, and these will be considered. Only then will the report be finalised. As it is now mid-June, that means we are probably waiting until at least mid-July for official publication (unless this process has already been completed and there were no leaks).

There is the possibility that the report will not be published at all. Under Section 23 of the Equality Act 2006, the EHRC can choose to enter into an agreement with Labour if it concludes that an unlawful act has been committed but the party undertakes not to commit that act again and takes preventative action.

However, non-publication is thought unlikely. JLM has asked the party to allow the report to be published for transparency, and Keir Starmer is keen to rebuild that relationship. He has previously vowed to “throw open the books” to the EHRC, and it would be unexpected for the leadership to conduct the process privately. It is also seen as politically savvy to reveal the “warts and all” EHRC report in order to strengthen the new team’s mandate for change.

What are the immediate consequences?

If the EHRC concludes after the investigation that the party has committed an unlawful act, it can give Labour an ‘unlawful act notice’ under Section 21 of the Equality Act. This notice can require the party to prepare an action plan so that it avoids continuing or repeating the unlawful act, and the EHRC can make recommendations.

If Labour must make a plan, it will be given a date by which a first draft must be delivered, and this can be approved or another notice can be issued that would force the party to revise it. The EHRC has supervisory powers over the plan, and further enforcement action can be taken.

“The ability for JLM to do anything ends at the point where the EHRC has made its conclusions. There is not an avenue of appeal,” James Libson told the recent JLM event.

What are the long-term consequences?

JLM naturally hopes that in the long term the EHRC report will lead to substantial change within the party. Margaret Hodge told the JLM event that there are some “jolly simple steps” she hopes the leadership will take – from changing people at the top, which has already started, to a “zero tolerance” approach and an independent complaints system.

Hodge also said a strong education and training programme should be implemented, “which JLM is brilliantly placed to provide”. JLM suspended its antisemitism awareness training last year, and Peter Mason said it would not provide it again “until the EHRC has reported and we’ve started to see the type of actions that we need to see”.

Among JLM members, the test for internal reforms is often considered to be when the party will see the return of Louise Ellman, who quit in October 2019, did not defect to another party and said she hoped to rejoin in the future.