JVL: Third Submission to the EHRC

Introduction to our third submission to the EHRC, below

The EHRC have confirmed to us that they are actively monitoring the steps Labour takes in implementing its Action Plan and would welcome any further submissions from us in respect of the matters contained within the  Plan.

In response to this invitation the following text was submitted to the EHRC today, 2nd December 2021. You can download it as a PDF here.

In it we have raised again the exclusion of our and other critical Jewish voices in the development of the Action Plan and have provided striking evidence of an increasingly harsh treatment of certain Jewish members in the Party.

We believe that the evidence we have supplied and the arguments we have made will reinforce the realisation by the EHRC that these issues need to be taken into account in their monitoring of Labour’s actions.

Doing so would be an important step in breaking the mainstream media’s radio silence on the harassment of Jews in the Party which is taking place under the aegis of the current leadership.

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Update: Stories based on this submission have appeared on Skwawkbox and in the Canary.

Introduction

1)  These submissions (“the Third Submission”) are made by Jewish Voice for Labour (“JVL”), in response to the invitation by the Equality and Human Rights Commission (“EHRC”) to JVL’s instructing solicitors (“Bindmans”), on 4 November 2021, to make further submissions in respect of JVL’s concerns about the implementation of the Action Plan.

2)  This invitation followed on from JVL’s first and second submissions to the EHRC in August 2021:

a. ‘How Labour’s Claims of Countering Antisemitism Has Resulted in a Purge of Jews’ (“the First Submission”, sent on 5 August 2021); and

b. ‘Supplementary Submission by JVL to the EHRC and Forde Inquiry’ (“the Second Submission”, dated 27 August 2021).

3) In the Third Submission, JVL wishes to raise two broad issues:

c. the continued unfair targeting of Jewish members of the Party and in particular Jewish members with particular beliefs set out in further detail below, which appears to be entirely contrary to the findings of the EHRC Report and the purpose of the Action Plan; and

d. the unfair procedures the Party is continuing to follow in respect of disciplinary proceedings against individual members, in breach of principles of fairness, natural justice and recommendations made by both the EHRC, and by Baroness Shami Chakrabarti in her report published on 30 June 2016, following her inquiry into antisemitism in the Party (the “Chakrabarti Report”).

The Party’s failure to understand antisemitism

4)  As a preliminary point, JVL considers that the failure of the Party to introduce a fair process to tackle antisemitism has resulted from its failure to properly understand antisemitism.

5)  JVL draws attention to the publication it prepared with Free Speech on Israel, entitled ‘What is – and what is not – antisemitic misconduct’, which was submitted as a contribution to the Labour Party’s consultation on its Code of Conduct on Antisemitism in September 2018.

6)  The overview to the publication states:

“The understanding of antisemitism on which this analysis is based reaffirms the traditional meaning of the term. This is important in the light of attempts to extend its meaning to apply to criticisms often made of the state of Israel, or to non-violent campaigns such as BDS. A charge of antisemitism carries exceptional moral force because of the negative connotations rightly attaching to the term. It is illegitimate to make such claims to discredit or deter criticism, or to achieve sectional advantage. To do so is to devalue the term.

To be clear: conduct is antisemitic only if it manifests ‘prejudice, hostility or hatred against Jews as Jews”.

JVL also draws attention to the Jerusalem Declaration on Antisemitism. This declaration is far clearer on defining what constitutes antisemitism than is the IHRA document.

“Antisemitism is discrimination, prejudice, hostility or violence against Jews as Jews (or Jewish institutions as Jewish).”

Its guidelines expand this in ways that are not slanted towards a particular view of Israel; the examples, being both ones that should prima facia be regarded as antisemitic and those that should not, are more helpful in aiding all parties to identify what activity should be the subject of complaint and sanction.

7) The Party has ignored these publications. Instead, the Party currently has three guidance documents in publication in respect of antisemitism:

e. Appendix 9.2 of the Rule Book 2020;

f. the ‘NEC Code of Conduct: Antisemitism’ contained in the Labour Party Complaint Handling Handbook; and

g. the IHRA definition of antisemitism, also set out in the Complaint Handling Handbook.

8)  Notably, despite containing two sets of guidance on antisemitism, the Complaint Handling Handbook does not contain any explanation for how both forms of guidance should be applied, nor address the inconsistencies between them. The Party’s approach in practice also seeks to treat the “examples” within the IHRA Definition as automatically constituting antisemitism, but even the Definition is clear that this is not the correct approach. Members are therefore left uncertain as to the actual definition being applied by the Labour Party.

9)  JVL considers that until the Party understands and properly communicates what does and does not constitute antisemitism, it will not be able to effectively tackle the issue of antisemitism in the Party and will continue to engage in the multiple failures set out in these submissions.

Annexes to the Submissions

10) The First Submission contained the following annexes:

Annex 1: Diana Neslen’s story – the harrying of an older Jewish woman;

Annex 2: Stephen Marks’s story – the singling out of a Jewish NCC member;

Annex 3: Naomi Wimborne-Idrissi’s story – how misrepresenting comments led to suspension;

Annex 4: Proscription in Starmer’s Labour Party;

Annex 5: The creation of an unrepresentative Advisory Board;

Annex 6: Complaints by JVL members that have been ignored;

Annex 7: The disproportionate targeting of left-wing Jewish Party members;

Annex 8: Our Jewish identities under attack;

Annex 9: The banning of JVL’s education programme; and

Annex 10: The impact of the General Secretary’s directives on left-wing Jews.

11) The Second Submission contained updates on annexes 4, 6 and 7 as well as a new Annex 10.

12) JVL now encloses, with the Third Submission, the following annexes:

Annex 11: Update on 27 November 2021 re disproportionate complaints against and investigations of left-wing Jewish members;

Annex 12: Letter from Bindmans to the Party dated 22 October 2021 in respect of Diana Neslen;

Annex 13: Confidentiality and inquisitorial processes of investigation;

Annex 14: Lack of progress on complaints by Jewish Labour Party members (this is an update to Annex 6 of the First Submission);

Annex 15: Appeal of Mike Howard March 2021;

Annex 16: Proscriptions in Starmer’s Labour Party;

Annex 17: Papers by Robert Cohen and Leon Rosselson relating to their work being cited in a charge of antisemitism.

Unfair targeting of Jews

13) The Party continues to unfairly target Jews who have anti-Zionist and anti-nationalist beliefs and who have objections to how the State of Israel is treating Palestinian people (referred to hereafter as “anti-Zionist Jews” for ease of reference). There is also an overlap with the targeting of Jews who have been uncomfortable with the way the Party has interpreted antisemitism and how it has conducted its investigations. JVL has identified four ways in which the Party does this:

a. by carrying out a disproportionate number of disciplinary actions against anti-Zionist Jewish members in comparison to other Jewish members, in respect of alleged antisemitism;

b. by failing to recognise anti-Zionism as a protected philosophical belief under the Equality Act 2010;

c. by failing to represent anti-Zionist Jews in the Advisory board process (combined with a wider lack of representation); and

d. by bringing charges of ‘Undermining the Party’s ability to campaign against racism/ against the many Jews who have questioned the Party’s policy and methods”. See Paragraphs 33 and 34.

14) Such potential discrimination, arising after the EHRC investigation and Report, is indicative of the Party’s increased hostility towards certain Jewish Party members, which is directly contrary to the intended outcome of the Report and the Action Plan.

Disproportionate disciplinary action against anti-Zionist Jews

15) JVL refers the EHRC to Annex 11, which contains statistics on the number of investigations by the Party brought against Jewish members and in particular, anti-Zionist Jewish members. Annex 11 sets out that, as a population share, over five times more Jewish than non-Jewish Party members have been investigated in relation to allegations of antisemitism. As far as JVL is aware, of the 41 Jewish members who have been investigated for antisemitism, 38 of those are members of JVL the vast majority of whom would consider themselves anti-Zionist Jews and all of whom see a strong distinction between anti- Zionism and antisemitism. As set out in Annex 11, JVL is concerned that this constitutes a systematic targeting of anti-Zionist Jews and in particular JVL members.

16) Please see Annex 17, which relates to Jewish writers finding out by chance that their work is cited as evidence of antisemitism. No attempt has been made by the Party to discuss the work with the respective authors; instead the Party proceeds on a misrepresentation that its interpretation is based on firm, legal evidence.

17) The Party’s disproportionate action against anti-Zionist Jews is exemplified in the case of Ms Diana Neslen. Ms Neslen is an over-80 year old Jewish woman who has herself experienced physical and verbal antisemitism and who has lived through and opposed apartheid in South Africa, yet who has been accused by the Party of antisemitism three times in less than three years. JVL refers the EHRC to Annex 1 to the First Submission, which sets out the background to her case.

18) Since the date of those submissions, Ms Neslen has been forced to instruct Bindmans LLP to defend herself against unfounded charges brought against her by the Party, which she considers amount to harassment and discrimination contrary to the Equality Act 2010. Bindmans’ correspondence is enclosed with these submissions at Annex 12. The Party has failed even to acknowledge such concerns, raised by a vulnerable Jewish woman, let alone respond to them. JVL instructed Bindmans to alert the EHRC about these concerns on 10 November 2021.

Failure to recognise anti-Zionism as a protected philosophical belief

19) Ms Neslen’s anti-Zionist beliefs are shared by many Jewish members of the Party, who have likewise faced disciplinary action for sharing those beliefs. However, such philosophical beliefs fall squarely within the definition of protected characteristics in the Equality Act 2010 (the “EA 2010”).

20) In Grainger plc v Nicholson [2010] ICR 360, Burton J provided guidance on the meaning and ambit of “philosophical belief” for the purposes of the EA 2010. The effect of that guidance is that a belief can qualify for protection if it (i) is genuinely held, (ii) is not simply an opinion or viewpoint based on the present state of information available, (iii) concerns a weighty and substantial aspect of human life and behaviour, (iv) attains a certain level of cogency, seriousness, cohesion and importance, and (v) is worthy of respect in a democratic society, is not incompatible with human dignity and is not in conflict with the fundamental rights of others.

21) In Forstater v CGD Europe[2021]IRLR706,ChoudhuryPheldthatArticle17oftheEuropean Convention on Human Rights (the “ECHR”) provides the appropriate standard against which the fifth limb of Grainger is to be assessed. Accordingly, “only if the belief involves a very grave violation of the rights of others, tantamount to the destruction of those rights, would it be one that was not worthy of respect in a democratic society” (at §62).

22) Many Jews targeted by the Party believe that political Zionism, the ideology that developed in the late 19th century and which propagated the creation, and continues to propagate the maintenance and expansion, of the State of Israel, as implemented in that State to privilege Jewish citizens over other citizens within the historic British Mandate of Palestine (which was and remains a multi-ethnic territory that is home to millions of non-Jews), is a racist endeavour. Such views are an integral part of a wider belief in the moral imperative of opposing racism in all its forms. Such a belief qualifies for protection under s.10 of the EA 2010.

23) Taking each part of the Grainger test above in turn

h. Their belief is genuinely held.

i. It is not an opinion or viewpoint based on the present state of information, but rather a belief concerning the fundamental nature of political Zionism (as defined above) as an ideology.

j. It concerns a weighty and substantial aspect of human life and behaviour. Zionism is the founding ideology of, and continues to shape and influence the conduct of, the State of Israel and its relationship with Palestine and Palestinians. It is significant and influential for the millions of people who live under Israel’s jurisdiction or control, as well as for (i) the millions of Palestinian refugees whose ability to return to their homes in what is now the State of Israel depends upon laws propagated by that State; and (ii) the Jewish diaspora on whose behalf the State of Israel claims to speak. The belief that political Zionism is inherently racist is often based on a view of the constitutional structure of the State of Israel (as well as the manner of its occupation of the West Bank and Gaza) as well as any personal experience of being a Jew.

k. It is clearly cogent, cohesive, serious and of importance to many Jews.

24) A large number of states, international organisations, jurists, politicians and human rights organisations share this view. For example, the leading Israeli human rights organisation B’Tselem concluded that Israel oversees a regime of racial supremacy from the Jordan River to the Mediterranean Sea, comprising “laws, practices and state violence designed to cement the supremacy of one group over another”. Similarly, a recent report by Human Rights Watch concluded that the Israeli authorities “have dispossessed, confined, forcibly separated, and subjugated Palestinians by virtue of their identity to varying degrees of intensity”, such conduct amounting to the crimes against humanity of apartheid and persecution.

25) In Annex 12, Bindmans raised a formal complaint against the Party for discrimination and / or harassment of Ms Neslen. This complaint could be levelled at the Party in respect of the majority of other Party members who have been subject to disciplinary action for their philosophical beliefs on Zionism.

26) JVL calls on the EHRC to confirm to the Party that anti-Zionism as a protected characteristic and to investigate the Party for its continuing discrimination in respect of this characteristic.

27) The Party’s disproportionate targeting of anti-Zionist Jews is brought into stark relief when compared with its failure to follow up on complaints made by mainly left-wing Jewish members. Please see Annex 14 for a list of the complaints that have not yet received any response. This is a matter that has been chased on numerous occasions, see for example the email sent by Bindmans to the EHRC on 26 October 2021, confirming that no response had been received from either the EHRC or the Party to JVL’s emails of 8 September 2021, requesting that the EHRC liaise with the Party to ensure it would investigate the complaints set out in Annex 6 of the First Submission.

Lack of representation on the Advisory Board

28) JVL refers the EHRC to Annex 5 of the First Submission, which related to the potential discrimination experienced by Jews who were not represented on the Party’s Advisory Board.

29) JVL had previously written publicly about the matter in February 2021, in an article entitled ‘Labour’s “Action Plan for Driving Out Antisemitism” will do no such thing’. In that article, JVL emphasised the risks and limitations of a narrow, unrepresentative, consultation among ‘Jewish stakeholders’ including the unhelpful precedent for other communities of interest and the narrow framing of what should constitute education through partisan ‘training’ from one source, the JLM (which has close links to Israel). JVL refers back to Annex 9 in this regard.

30) JVL had also instructed Bindmans LLP to write a letter to the Labour Party to raise concerns that appointments to the Advisory Board did not include non-Jewish Palestinians in light of the Party’s interpretation of antisemitism and its reliance on the heavily contested IHRA definition of antisemitism. (Please see the advice note prepared on 8 March 2017 by Hugh Tomlinson QC, which discusses why the IHRA definition of antisemitism is highly contested.) The arguments in that letter are set out at Annex 5 of the First Submission.

As set out in Annex 5 to the First Submission, JVL remains concerned that the Party has adopted an unfair and opaque process for appointing the Advisory Board, which has resulted in the exclusion of anti-Zionist Jews and those concerned about the Labour Party’s actions. They are also concerned that a similar process will be followed in respect of the “independent boards” to be involved in the disciplinary process in light of the Action Plan. The Party’s amended rules give complete discretion to the General Secretary in the appointment of those boards and there is a real risk they will end up as unrepresentative as the Advisory Board if there is no open and transparent process for their appointment.

Unfair procedures

31) JVL also wishes to draw the EHRC’s attention to the unfair procedures the Party is engaging in when instituting disciplinary proceedings. These include but are not limited to:

a. bringing deliberately vague charges against individual members on the basis of scant evidence and which preclude the individual’s ability to adequately defend themselves;

b. failing to explain the connection between the charges brought and the “items” of evidence relied on;

c. refusing to grant adequate extensions of time for written evidence;

d. lengthy delays in determining investigations and appeals;

e. failing to provide clear or fair guidance on confidentiality of information shared by those subject to disciplinary proceedings;

f. refusing to provide information regarding the identity of the complainant; and

g. unfairly subjecting Jews to disciplinary proceedings as a result of proscriptions of organisations of which they are “supportive”.

Footnote:

Vague charges

33) In the majority of investigations into alleged antisemitism, the Party asserts that the member is guilty of conduct that “undermines the Party’s ability to campaign against antisemitism”. This is a vague accusation that does not provide the member with sufficient information to understand, or defend themselves against, the charge. It also gives the Party an effective carte-blanche to investigate members in relation to complaints that have no basis and to stifle any questioning of the Party by its members.

34) For example, the Party has brought disciplinary proceedings against Ms Manson for simply questioning the public perception of the scale of complaints of antisemitism against Party members: see the Newsnight interview on 17 November 2020 which formed the basis of the investigation. The comment identified by the Party in that interview falls squarely within the permitted speech specifically identified by the EHRC in its Report, which was accepted in full by the Party leadership.

35) In particular,the EHRC said “Article 10 will protect Labour Party members who, for example, make legitimate criticisms of the Israeli government, or 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.”

36) Even though the Human Rights Act 2010 may not apply directly to the Party, the Party has voluntarily (and rightly) accepted that the principles underpinning Article 10 should apply to it, including in respect of issues of alleged antisemitism: see the NEC Code of Conduct on Antisemitism in the Complaints Handling Handbook. Rule 2.I.9 of the Rule Book further provides:

“The NEC and NCC shall not have regard to the mere holding or expression of beliefs and opinions except in any instance inconsistent with the Party’s aims and values, agreed codes of conduct, or involving prejudice towards any protected characteristic.”

37) In consideration of the above, the Party’s use of vague language to institute disciplinary proceedings is unfair and potentially in breach of recognised principles of free speech.

Lack of connection between the charges brought and ‘evidence’ relied upon

38) In the majority of cases, the Party does not set out in clear terms – or at all – the connection between the complaint of antisemitism and the items of ‘evidence’ relied on to support the complaint. This leaves the accused open to self-incrimination. JVL draws attention to Annex 13, a letter to the Governance Legal Unit (“GLU”) expressing his serious concern at the Party’s failure to clearly set out the allegations against him (withheld for reasons of confidentiality from the public version).

Refusals of extensions of time

39) JVL has noted an increasing trend in the Party refusing to grant those subject to investigation a reasonable extension of time (JVL considers this to be around four weeks) and instead proposing an extension of, for example, two weeks. This refusal often arises in the context of the Party itself taking action on complaints regarding incidents that have taken place many years previously and confirming that the reason for the delay is due to the Party working through a backlog of complaints. In circumstances where the Party has delayed acting on a complaint for a number of years, it is unacceptable for the Party to refuse to grant an individual the extension of time requested for their written evidence, particularly as there is no prejudice to the Party in doing so. Many accused face weeks of extreme shock and distress after the initial letter. Such refusal amounts to an unfair process.

Lengthy delays in determining investigations and appeals

40) In addition to delays in acting on complaints, the Party has also delayed significantly in processing investigations. In many cases, the Party has left the members subject to investigation in limbo for months on end, failing to respond even to requests for updates on their investigations.

41) JVL draws attention in particular to the case of the late Mike Howard, whose appeal against his unjust punitive suspension is set out in Annex 15. Prior to investigation, Mr Howard had an unblemished record as a Jewish Labour, trade union and anti-racist activist. He was therefore incredibly angered and distressed to find himself subject to investigation. His appeal was filed in March 2021, with further submissions made on 13 April 2021. Following that date, Mr Howard received neither any update on progress nor any substantive response from the Party. Tragically, Mr Howard died in November 2021, without even an acknowledgement of his appeal by the Party.

42) The Party’s delay in responding to individuals is totally unacceptable and merits investigation by the EHRC.

Confidentiality

43) Clause 9(b) of the Party’s ‘Code of Conduct: Confidentiality and Privacy’ states that members must keep information relating to disciplinary cases private except where it is necessary for a member subject to the proceedings to make disclosure for the purpose of obtaining, inter alia, “social support” or “support from close family members”. These terms are not defined and it is therefore unclear in what circumstances a member can share information for support.

44) There is also a distinct lack of parity in the Party’s confidentiality obligations in respect of disciplinary action, compared with that of the member as “the NEC or any national officer acting under the NEC’s or the General Secretary’s delegated powers may disclose the fact of a disciplinary investigation to third parties if it is necessary to do so in the Labour Party’s interests” (Clause 9(c) of the ‘Code of Conduct: Confidentiality and Privacy’). No such right is given to a respondent when disclosure may be necessary or appropriate in their interests. Members can therefore not rebut misleading reports made about their investigations, which is sadly common. JVL is unaware of any steps the Party has taken to investigate or prevent such leaks, which often occur within hours of an investigation being launched or a decision being made.

45) The lack of clarity in the guidance in respect of who the member can disclose information to, combined with the lack of parity described above, places the Party at an unfair advantage in an already unfair process. JVL is concerned that the confidentiality provisions are intended to effectively avoid public scrutiny of the Party’s disciplinary processes, despite the substantial flaws identified in the EHRC Report.

46) See Annex 13, which contains a letter sent by Jacob Eccelstone to David Evans on 19 November 2021 on the issue of “confidentiality” and (also noted above) a response to a GLU Notice of Investigation dated 5 November 2021 (withheld) as well as an excerpt from a member’s response to a Notice of Investigation, outlining the member’s distress over the lack of clarity of the confidentiality clauses contained therein

47) It is widely recognised that, if a member requests the identity of the complainant in their investigation, the Party should provide such information. Indeed this was confirmed in the Chakrabarti Report, which recommended that it was important to identify the complainant because:

“it would also create an important distinction between such a complainant and a hostile journalist or political rival conducting a trawling exercise or fishing expedition in relation to a particular person or group of people within the Labour Party. I am not going so far to say that a politically motivated complaint should always be disregarded, just that motivation may have relevance, as will context.“

48) Despite the above and in breach of the principle of natural justice, JVL is aware of many instances in which the Party has refused to provide details of the identity of the complainant. Such refusal would appear to be the default position, as opposed to the exception. Indeed JVL is not aware of any cases where the complainant is identified.

Proscriptions

49) In Annex 4 of the First Submission, JVL had provided the EHRC with details of the Party’s proscription of four organisations in July 2021, meaning that their members and supporters would be auto-excluded from the Party. Whilst not formally endorsed, this action is being applied on a retrospective basis (see here),in some cases several years after the alleged offence.

50) As set out in Annex 16 to the Third Submission, “support” for these organisations could include participation in events they have organised. As a result, many Jews could fall within this definition. Those Jews would effectively be punished for actions that could not have been foreseen to be subject to sanction at the time they were taken. This constitutes a form of a retrospective punishment that is fundamentally unfair and is exemplified in the case of Leah Levane (details set out in Annex 16) and other members who wish to remain anonymous.

Late Legal Addition

51) There have been two significant legal decisions since JVL’s second submission. Both relate to Labour Against the Witch Hunt (LAW) and so are relevant to the section on proscriptions (Annex 16). They are relevant to the Labour Party’s misunderstanding of antisemitism. The first is reinstatement of Stan Keable to his employment, following his unjust dismissal on charges of antisemitism and the second, well known to the EHRC, is the granting of permission to Ken Livingstone to go to judicial review.

Conclusion

52) JVL is grateful to the EHRC for requesting further submissions and hopes that the above will assist the EHRC in its ongoing monitoring of the Party.

53) JVL would welcome the opportunity to discuss any of the above points in more detail with the EHRC or to answer any questions arising out of these submissions.

The Annexes can be downloaded here as part of the complete submission.