EHRC avoids response to QC’s submission that Labour investigation breaches Equality Act

Written submission supported by veteran human rights lawyer details areas of investigations ‘Terms of Reference’ it says contravene statute

A fourteen-page submission to the Equality and Human Rights Commission (EHRC) by the group Jewish Voice for Labour points out areas in which it claims the EHRC’s investigation exceeds its statutory powers, as well as providing the group’s own evidence on the subject of antisemitism in the Labour Party.

The document is endorsed by veteran human rights lawyer Sir Geoffrey Bindman QC, chair of the British Institute of Human Rights and recipient of the Law Society’s Centenary Award for Human Rights, as well as of a knighthood for services in the field.

The EHRC has avoided directly commenting on the JVL assertions.

“We submit that the TOR of this investigation manifestly fail to do this and is, therefore, defective and in breach of the statutory requirements imposed on the Commission.”

The JVL submission notes that:

We draw the Commission’s attention to section 3(a) of Schedule 2 to the Equality Act 2006. This requires the Commission in preparing its Terms of Reference to specify not only the person or persons to be investigated but also the nature of the unlawful act (or acts), which the Commission suspects. We submit that the TOR of this investigation manifestly fail to do this and is, therefore, defective and in breach of the statutory requirements imposed on the Commission. In order to comply we submit that the Commission must without delay repair these defects and publish the nature of the unlawful act or acts which the Commission suspects. Without that information, all respondents are denied the ability to complete our representations.

In addition, the TOR reveals a number of limitations in the scope of the investigation to which we now draw attention…

The investigation is carried out under the authority of section 20 and Schedule 2 of the Equality Act 2006. Section 20 empowers the Commission to investigate whether a person has committed an unlawful act (or acts) but only acts which are in contravention of the Equality Act (see s.34). The definition in paragraph 7v of the TOR acknowledges this and limits the subject matter to race or religious discrimination, i.e. on the ground of Jewish ethnicity or Judaism. (see paras.7p and q). The only such acts which could be relevant to this investigation are acts of discrimination on those grounds. Paragraph 1 of the TOR adds a further limitation: to acts in relation to Labour Party members and/or applicants for membership and /or associates.

There is a further crucial limitation on the Commission‘s investigatory powers and the scope of this investigation. It cannot be directed at antisemitism in general. This is highlighted by the fact that the TOR properly make no reference whatsoever to antisemitism (except in para 8 in references to the IHRA definition). The importance of this point is that the Commission must take care to limit its investigation to acts which are not only antisemitic but are acts in breach of the Equality Act. The Labour Party may choose to treat some conduct as antisemitic and in breach of party rules which the Equality Act does not prohibit. For example, many comments on social media may be abusive and insulting to Jews or some Jews but are not unlawful. Or they may raise issues about Zionism…

The Commission suspects that unlawful acts may have been committed but gives no indication whatsoever of what such acts may be. Pending further clarification, we can only surmise, on the basis of our experience and knowledge of such allegations as have been reported in the media and elsewhere, that they might, at worst, suggest that there have been inadequate, partial or inordinately delayed investigations by the Labour Party, or its employees or agents, into complaints of antisemitism made to the Party against other members…The Commission must consider carefully whether, on this basis, the complaints of unlawful discrimination by the Party, against its members, fall within the scope of the Equality Act at all…

Without evidence of discrimination we are at a loss to see how any unlawful act by the party within the scope of the investigation could be established.

Paragraph 3 of the TOR lists four examples of issues which may be looked at. The first of these is whether unlawful acts have been committed. Again, we point out that the only unlawful acts that fall within the permitted scope of the investigation are the acts in breach of the Equality Act, mentioned earlier. We also repeat that these are the only matters which the Commission has power to investigate. There is no legal basis for extending the investigation into other areas, except to the extent that they provide evidence of unlawful acts. It is incumbent on the Commission at least to state, in the TOR, the nature of any unlawful acts which it suspects may arise from the matters described in these sub-paragraphs. It is in breach of section 3(a) of Schedule 2 of the Equality Act 2006 by failing to do so.

The submission also notes that neither the IHRA ‘working definition’, nor Labour’s Royall or Chakrabarti reports have legal force – and indeed that the working definition explicitly describes itself as not legally binding.

The rest of the submission, which is can be downloaded below, details the experience of JVL’s own Jewish members – and points out that many of the worst aspects took place under the tenure of former general secretary Iain McNicol, while significant improvements have been made under his successor Jennie Formby. It also states that media reporting of the situation in the Labour Party has far exceeded the reality – and that departing staff loyal to McNicol destroyed records to make the party’s job harder after their depature, as first exclusively reported by the SKWAWKBOX and since ignored by the corporate media estate.

The list of supporting signatories to the document contains prominent names alongside Bindman’s and those of JVL’s officers:

• Sir Geoffrey Bindman QC
• Professor Tony Booth
• Miriam David, Professor Emerita, Sociology of Education, UCL Institute of Education
• Alison Harris
• Adam Hurst
• Antony Lerman
• Diana Neslen
• Dorothy Macedo
• Stephen Marks
• Jane Miller, Professor Emeritus (Education)UCL
• Avi Shlaim, Emeritus Professor of International Relations at Oxford
• Jamie Stern-Weiner, ( PhD candidate at the University of Oxford)
• Ellie Palmer, Professor Emeritus, School of Law/Human Rights Centre, University of Essex
• Naomi Wayne

Invited to comment on the claims that it was in breach of the Equality Act and had gone beyond its own terms of reference, the EHRC did not respond directly to JVL’s points raised but merely stated via a spokesperson:

We are carrying out our investigation in accordance with the terms of reference set out on our website. We will review all the evidence we have received

JVL co-chair Jenny Manson said:

As [the EHRC] haven’t explained exactly what they are investigating and shown, as they are required to do, the complaints that they are investigating, how can we as people involved in the investigation be certain that the outcome will be appropriate?

The full submission can be downloaded here.

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