Lawfare, McCarthyism, and the EHRC

A stylistic point – its a pity the article wasn’t paginated – its very difficult to review or reference such a long article which is presented as one continuous message. And I fear, because it is so long, many people might abandon it and not return – because there is no way of knowing where they should return to!

Which would be a great pity. Because it’s interesting, and a very useful piece of work, and I hope my comments below will be taken in the spirit in which they are given.

I would have liked it to have been more ‘legal’ and less ‘political’. Had Labour chosen to do so, it could have gone to court and dismantled the EHRC Report line by line, for its myriad legal deficiencies, its evidential shortcomings, and its flagrant bias. Because it is some sort of a ‘legal document’ (and I call it ‘some sort of’ deliberately) it carries with it an immediate – but spurious – status. Criticising the Report politically is not that difficult – it really is that weak a product. But the EHRC also gave Labour an open goal to take it down on its own terms – legally – which Labour’s leadership deliberately chose not to do. With a bit less unfocused commentary, Ammar could have spent his time producing the definitive legal demolition job.

So it is odd that he doesnt cover these two crucial points.

First, he doesn’t pick up on the significance of the use of agency law – and Labour’s craven acceptance of the EHRC’s insane list of people who count as agents (which is why it is cracking down on every branch officer it can lay its hands on who even contemplates allowing some free speech at a Branch meeting). In so doing – both Labour and the EHRC – have constructed an extraordinary mechanism for destroying freedom of political speech, and Ammar’s silence on the erroneous reliance on agency law is surprising.

Second, as far as I can remember – and I read the piece yesterday and cannot face trawling back to be sure my criticism is justified (that pagination problem!) – he doesn’t give anywhere near the attention that it merited to the Employment Tribunal case of Fraser v UCU, alongside whose careful evidential review, and discussion of harassment law and the misuse and abuse of equality law, the EHRC Report is exposed as very thin gruel indeed. In particular, the Tribunal’s discussion of the INEVITABLY political and contentious nature of debate within a trade union should have been an object lesson for the EHRC in making its own half baked judgments when it came to a political party. (If I am wrong on this second point and he did cover it, apologies).

Like Naomi Wayne I would have liked to see even more attention to the glaring legal flaws in the EHRC report. But the legal flaws are inextricably tied into commission’s position in the political sphere. She is quite right to call the abuse of the use of the concept of agency by the EHRC as having created an extraordinary mechanism for destroying freedom of political speech. That said, despite his silence on agency, Ammar Kazmi deserves the highest praise for his sustained exposure of the EHRC and its report.

Thanks for an excellent analysis that fleshes out many of my concerns about the EHRC report.
Good too to see someone else question the requirement for an “independent” complaints procedure. Leaving aside the desirability or legality of outsourcing disciplinary matters, with the problem of giving access to confidential information to people outside the party, who could possibly be regarded as truly independent? It sounds superficially appealing but, as I have widely argued, what are the chances of finding anyone sufficiently qualified to carry out such a procedure who has never held a political opinion?