What, asks Liz Fekete, does the EHRC’s methodology in its report into antisemitism in the Labour Party, warn us about the way equalities are moving?

A meeting ‘How the EHRC got it so wrong: antisemitism and the Labour Party’ on 13 May 2021 discussed the new report by Jewish Voice for Labour (JVL) in which legal experts and others provided a comprehensive critique of the Equality and Human Rights’ 2020 Investigation into the Labour Party. This is an extended version of a contribution to that meeting by IRR director Liz Fekete in which she addressed the core issues of concern for the anti-racist movement as a whole.

Introduction 

The Institute of Race Relations, as an educational charity, and therefore not party-aligned, comes to this discussion from a different angle from that of JVL. Note, though, the IRR gave evidence to the Chakrabarti inquiry, as to the dangers in reducing racism to personal attitude, in equating the idea with the act, and unlawful discrimination with the causing of offence, and conflating the acting out of antisemitism with a position on Israel. But now, the EHRC, through this deeply flawed and misleading report, has not only failed to rise above these contradictions, but has failed, too, to clarify the law so that people and organisations have a clear understanding of their rights and their duties.

This is why JVL’s comprehensive critique is so important. It not only outlines the various legal flaws of the EHRC report, but sets out the case calmly and clearly – and in a way that can educate how antiracism as a concept relates to fairness, equality and justice. Such effective education depends on the political culture we create being open and tolerant — neither seeking to offend gratuitously nor cancel others out.

The role of the EHRC

But why did the EHRC get it so wrong? The first thing is to realise that though the fight for strong anti-discrimination laws might have been part of the anti-racist fight, the EHRC is not an anti-racist organisation. It is merely the statutory regulator of alleged breaches of the Equality Act. It has actually not even a mandate to investigate antisemitism or any other form of racist conduct, which is why so much of its report on the Investigation into Labour Party antisemitism is ultra vires. (Beyond one’s legal power or authority).

But although the EHRC is not an anti-racist organisation, we would expect it to apply the law impartially, and to be critical of those in power when they use stigmatising discourses that impact on communities protected by the Equality Act. To do this it needs not just to be independent from government in the technical sense, but independent of the ideology of the government as well as that of the zeitgeist. This might be difficult for the EHRC, since it is answerable to the Cabinet Office.

EHRC’s recent line of travel

In April 2021, the chair of the EHRC, three days after Conservative MPs had attacked the director of the Runnymede Trust, published a letter critical of the thinktank. A week later, members of the Common Sense Group of Conservative MPs wrote a letter to the Charity Commission demanding an inquiry into the Trust. The context was the Trust’s coordination of opposition to the government’s Commission for Race and Ethnic Disparities (CRED) report, which had been condemned by every ‘race’ organisation of significance in the UK, for its stigmatisation of Black Caribbean communities, and its depiction of Britain as a meritocracy and a global leader for ‘majority white’ countries on diversity. Note, the only organisation with equality or human rights in its name to welcome the CRED report was the EHRC. The report recommended increasing its funding.

But there is another recent EHRC action that we need to take note of – its a formal intervention at the employment appeal tribunal in a discrimination case taken by a woman whose contract was not renewed because colleagues were upset by the climate created at the workplace by her anti-trans views. The EHRC states that a ‘gender critical’ belief that ‘trans women are men and trans men are women’ is a philosophical belief protected under the Equality Act. It says the employment tribunal judge, who held that such a belief is ‘not worthy of respect in a democratic society … [as] it is incompatible with the human rights of others’, conflated the belief, which must be protected, and the way it was expressed.

Coming close to the government’s line

Equalities law holds that beliefs can only be protected if they are compatible with human dignity and not in conflict with fundamental rights. But in this intervention, the EHRC could open the door for ‘philosophical belief’ to be elevated over the protection of the rights and dignity of minority groups (although it does accept that ‘extreme’ beliefs such as racial superiority would not deserve protection). It’s important to study the progress of this intervention, as it has the potential to set a new norm in relation to the dilution of legal protection not just for trans people, but for other minorities – this is something that is very much in line with the government’s approach. Women and Equalities minister Liz Truss, who oversees the EHRC, has made no secret of her hostility to the very concept of ‘protected characteristics’ – equalities should be geared towards providing more choice and opportunities for individuals, and promoting ‘diversity of ideas’, rather than protecting minority communities, she and other ministers seem to believe. We know that this government is committed to a neoliberal approach to regulation, based on deregulation of health and safety, employment standards etc – and now it seems that its vision for its equalities regulator is cut from the same cloth. It seems to say, ditch or dilute regulation which aims to protect the human dignity of marginalised vulnerable groups, and set up an equalities market, where diverse groups and interests compete with each other. For protecting the rights of minorities disadvantages others, and fails to provide a level playing field.

How do Commissioners see rights?

If the Equality Act is to be used by the EHRC to defend the rights of individuals to deny rights and human dignity to others, what might we expect to come next? Alasdair Henderson, the EHRC Commissioner who led the investigation into the Labour Party, a barrister specialising in public law and human rights, has in the past acted for the government supporting a discriminatory residence test for refugees’ disability benefits, defending restrictions on legal aid for domestic violence victims, acting for soldiers accused of human rights violations in the Al-Sweady inquiry and for the Metropolitan police in the Leveson inquiry. And as for new EHRC commissioner, David Goodhart, he might well bid to expand the EHRC’s horizons as to which groups should be protected under equalities law, given his endorsement of a paper by Eric Kaufman for Policy Exchange arguing that white self-interest is a legitimate point of view that must be factored into the ‘policy calculus’. There have been multiple signs that the EHRC is getting dangerously close to the ideology of a neoliberal government that does not believe in a progressive equality agenda, believes that ‘majority rights’ are under threat from ‘woke’ culture, and orchestrates ‘public opinion’ through culture wars and moral panics. The EHRC’s market-driven approach and the use to which it can now potentially be put to defend socially conservative ideas, find resonance in some of the methodological fallacies pointed out in the JVL critique of the Labour Party investigation.

Which ‘public concern’?

The EHRC claims that the investigation was undertaken because of high levels of ‘public concern’. But the Equality Act 2006 makes no mention that the instigator of an investigation should be ‘public concern’, a subjective concept open to media manipulation. And only two such ‘concern’-driven investigations were conducted between 2010 and 2018. Compare EHRC concern over antisemitism amongst members of the Labour Party to its timidity in the deployment of its enforcement powers over institutional racism in the Home Office and the Windrush scandal. Compare the promptness on one investigation to the dilly-dallying on the other, compare the fact that the one was a full section 20 investigation under the Equality Act 2006 to the other, far more limited Public Sector Equality Duty Assessment. The Home Office’s policies towards the Windrush generation resulted in at least 180 people being wrongfully deported, at least 11 of whom died before November 2018, and at least 9 more after applying to the scheme but before receiving any compensation – and countless others made homeless, or excluded from benefits. It was, in Sivanandan’s important distinction, not so much about the racism that discriminates, as the racism that kills. And yet, when the EHRC produced its report, even though it had the power to serve a compliance notice enforceable by the High Court, requiring action, it did not do so, merely ‘recommending’ that the Home Office agree an action plan.^[1]

Who nominates community stakeholders?

Another point that JVL is pushed to query is the EHRC’s suggestion that the Labour party should defer in policy decisions, particularly in the field of training, to groups ‘acceptable to Jewish stakeholders’, with the inference that this would mean the communal authorities, demonstrating no recognition of a ‘diversity of views’ within the Jewish community. There are long-standing critiques, not least by organisations like Southall Black Sisters, of the impact on the ‘minority within the minority’ when political parties and public bodies defer to supposed communal spokesmen over issues that pertain to equalities and human rights. The language of ‘stakeholders’ is also worrying as a rights-based approach to the handling of complaints of discrimination is undermined when policies are drafted according to stakeholder interests. The EHRC fails to acknowledge that discrimination can occur within, as well as between, communities. That is why we need the law to be impartial.

Presumably, Jewish anti-Zionists were considered too far down the pecking order of stakeholders, or perhaps not even stakeholders at all by the EHRC, which explains why its submissions were all but overlooked in the report. The failure of the EHRC to take up JVL’s points shows that it had not established its market position as a ‘stakeholder’ in the antisemitism debate – further evidence of the marketisation of equalities at the EHRC, and even in the marketplace for a ‘diversity of ideas’, it would appear there are hierarchies.

Proving intent

But at the heart of what is wrong with the EHRC report is its failure to clarify or define concepts which it uses but which are not applicable in law, its omission of salient context, and its failure to even pay lip service to the difficult issue of how we distinguish between antisemitism and criticism of Israel and Zionism.

Here we get back to the central problem that the Labour Party got caught up with, the difficulty in today’s media climate of balancing the need to protect its members from antisemitism while at the same time, upholding freedom of expression around the Israel-Palestine conflict. This balance requires distinguishing between words that are clearly said with a racist or antisemitic intent, and words which may cause offence or discomfort but are delivered without racist intent. The whole question of intent has neither been addressed by the EHRC, nor for that matter, by the Labour party. And by this failure, both have betrayed the cause of civil liberties and done considerable damage to anti-racism.

Of course, people acting with antisemitic and malicious intent may use the words Jew and Zionist interchangeably. But others with no antisemitic intent whatsoever, not least Jewish anti-Zionists – many of whom have been suspended or expelled from the Labour Party – are critical of Israel. But the EHRC does not discuss the whole issue of ‘intent’ at all; it simply does not exist because we must have ‘zero tolerance’ (not a legal concept) of an antisemitism which is never defined in the report, but which, in the EHRC’s view, appears to include anti-Zionism. The Equality Act protects the Jewish community from discrimination, harassment and victimisation related to or on the basis of the protected characteristics of ethnicity and religion – Jewish ethnicity and/ or Judaism – but Zionism is a political belief, and if the EHRC believes that it is a belief that should be afforded protection, then it must say so openly. Instead, and rather disturbingly, the EHRC report (wittingly or unwittingly, deliberately or by default) appears to accept that Zionism, or strong support for Israel, is an inherent part of Jewish ethnicity,^[2] and never even entertains the notion that Zionist belief is just one current within a very diverse ‘Jewish community’.

The logic that muddles up ethnicity with belief is worrying particularly because of the EHRC’s intervention in support of ‘gender critical’ beliefs as well as the fact that at least one of its Commissioners has indicated support for ‘white self-interest’ being considered a legitimate interest in the policy calculus. Where does it draw the line between legitimate and ‘extreme’ beliefs?

Repercussions

The questions that are being raised about the EHRC’s interests, definitions and perceptions vis-à-vis the report on the Labour Party and antisemitism are not empty or rhetorical, but will have repercussions. For example, the report’s implicit disappearance of the views of parts of the Jewish community will have implications for the protection of less powerful voices in Black, Asian and other ethnic minority communities in the future. There are already parallels with the way that Black and Brown people are being targeted as racists and persecuted in their places of employment after far-right trolls examine their social media accounts to see if they have ever used the term ‘house negro’; see for example ‘Who gets to define racism?’, that focused on the disgraceful treatment by Leeds Beckett University of Aysha Khanom, the head of the Race Trust. For figures like the Reclaim Party’s Calvin Robinson, for whom colour-blindness is the true anti-racism, the mention of a person’s colour is racist in and of itself, with those who use the term ‘house negro’ described as racists who have used the equivalent of the ‘n-word’. This is of course all child’s play linguistic stuff, but unbelievably some people at Leeds Beckett University have taken it seriously. The word negro is clearly not interchangeable with the ‘n-word’: was Langston Hughes a racist when he wrote ‘The Negro speaks of rivers’? Nor is the term ‘house negro’ racist, although it clearly offends and causes discomfort.

Untethering equality from anti-racism

In conclusion, the fight for anti-discrimination laws to protect minorities has always been part and parcel of the anti-racist fight, and kept radical and progressive by the force of grassroots mobilising. But, today, anti-racism is being delinked from progressive values and hooked up both to a punitive neoliberal system aimed at excluding those branded ‘flawed individuals’ from political debate, and to the marketisation of human rights protection for any group who can claim its beliefs take precedence over the human dignity of vulnerable minorities.

By untethering the application of anti-discrimination laws from wider anti-racist principles, and by effectively marketising equalities, the EHRC has established that it is part of the problem, not part of the solution.