Is the EHRC fit for purpose?

Colin Challen blog image

JVL Introduction

Colin Challen, a Scarborough (UK) based artist, was Labour MP for Morley and Rothwell from 2001 to 2010.

Under the Freedom of Information Act, he asked the EHRC some simple questions about its justification for launching an inquiry into alleged antisemitism in the Labour Party.

Its failure to be able provide even the most basic information (his request would be too expensive to comply with!) leaves him a bit bemused:

“What I find interesting here is that a body with possibly inadequate information systems, which finds it difficult to dig out relatively simple information  (‘records were not kept . .  thoroughly’) is now tasked to consider whether another body—the Labour Party—is better equipped to deal with complaints which may need a considerable time to consider.”

And it didn’t even begin to answer his question as to what definition of antisemitism it was working with…

This article was originally published by Colin Challen's blog on Thu 23 Jan 2020. Read the original here.

A partial response from the EHRC

In writing the following I want to make it clear from the very start that I have no issue with the Equality and Human Rights Commission (EHRC) carrying out an investigation into alleged anti-Semitism in the Labour Party They received complaints and they have the legal discretion to investigate them. What I am concerned with is whether such an investigation could be ’weaponised.’ In the context of our current state of politics and rabid tabloid media an investigation in itself suggests that there cannot be smoke with out fire, and in the billionaire-owned media’s hands, guilt on the part of the accused is an automatic assumption. Hillary Clinton, despite her many faults fell prey to the CIA ‘investigation’ into her emails, regardless of the result of that investigation – which more or less exonerated her. So, in the hands of Jeremy Corbyn’s enemies, one might argue that this case, politically was analogous in the way that it was capitalised by his foes.

In this light, I (acting alone) sought to dig deeper into the EHRC’s justification for launching its inquiry. I sent them an email on 6th January asking the following questions, under the FOI Act:

a) Between 1st January 2015 and 31st December 2019, how many complaints about racism has the Commission received for each of the Labour, Conservative and Liberal Democrat Parties, broken down by month and by the form of racism complained of (e.g. anti-Semitism, Islamophobia, etc.)

b) Over the same period, how many complaints about racism has the Commission received about other bodies, public or private, broken down as in (a).

c) Over the same period, how many investigations into allegations of racism (broken down as in (a) above) has the Commission launched regarding other bodies, public or private.

d) The terms of reference of the Commission’s investigation into the Labour Party states (Paragraph 8) that the Commission ‘may’ have regard to the IHRA working definition of anti-Semitism whilst recognising that this definition is not legally binding. Please provide the legal definition of anti-Semitism the Commission WILL use in this investigation whether or not it chooses to use the IHRA non-legally binding definition. I note that this investigation is being carried out by the Commission using its legal powers provided by the 2006 Act.

In asking these questions (a to c), I was trying to flush out what it takes to get the EHRC to launch an inquiry. Admittedly a purely numerical answer would be insufficient, some complaints about racial discrimination could be small in number but egregious in seriousness. But one has to start somewhere. Question (d) was aimed at finding out what the EHRC actually understood to be the legal basis of its definition. The EHRC can only act under the powers it is given by Parliament, and if that means it has a wide latitude, fine—but let’s be clear what that latitude entails for the accused.

On the 23rd January, I received a reply from the EHRC which claimed that my request would be too expensive to comply with. The relevant part of their response said:

Following consideration of your request we have determined that the Commission will hold information relevant to your request, but the cost of complying with your request would exceed the £450 / 18 hour limit. Your email dated 6 January consists of a series of requests with an overarching theme / common thread running throughout. As such we have aggregated the costs of complying with these requests as permitted by the Fees Regulations. We have determined that it will take well in excess of 18 hours to locate, retrieve and extract the requested information. This is due to the extensive nature of the searches required. We have outlined below how we have calculated this estimate.

Section 12 search strategy

Between 1st January 2015 and 31st December 2019, we did not have a centralised case management system for legal/enforcement work. As such, it will be necessary to go back to a number of different documents and files to determine the breakdowns you have requested. For example, with regard s question (b) above, we would need to consider a number of folders, including:

    1. Allocations for 2015-2016; 2016-2017; 2017-2018; 2018-2019; and 2019-2020 (9 months);
    2. Pre-allocations for 2015-2016; 2016-2017; 2017-2018; 2018-2019; and 2019-2020 (9 months);
    3. Legal requests for 2015-2016; 2016-2017; 2017-2018; 2018-2019; and 2019-2020 (9 months);
    4. EASS for 2015-2016; 2016-2017; 2017-2018; 2018-2019; and 2019-2020(9 months);
    5. Notices of commencement for 2015-2016; 2016-2017; 2017-2018; 2018-2019; and 2019-2020 (9 months); and
    6. General correspondence complaints for 2015-2016; 2016-2017; 2017-2018; 2018-2019; and 2019-2020 (9 months).

We are conscious that in some instances information may not have been recorded in and we will need to go back to the original case file.

To try to obtain an estimate of locating the information requested, we have conducted the following sampling exercise:

I. Allocations: In 2018-2019, there were 29 race cases recorded through Allocations. We estimate that to locate and extract the information will take 4 minutes per case. Therefore, 29 cases x 4 minutes would take 1 16 minutes. As you have asked for 5 years’ worth of data, we have calculated that this could take 580 minutes (116 minutes x 5 years). However, this is a very conservative estimate as it is likely to be substantially longer for the years 2015-2016 and 2016-2017 as records were not kept as thoroughly and we would likely need to go back to the original files.

II. Pre-allocations: In 2018-2019, there were 10 race cases recorded through Pre-Allocations. Again, it would likely take 4 minutes per case. Based on a 5 year period, this would amount to 200 minutes ((10 cases x4 minutes per case) x 5 years). Again, this is a very conservative estimate as it is likely to be substantially longer for the years 2015-2016 and 2016-2017, as records were not kept as thoroughly and we would likely need to go back to the original files.

III. Correspondence: From 1st January 2015 to 31st December 2019, there were 1403 issues returned by the enquiry strand ‘race’, recorded in our general correspondence tracker. In order to determine whether these were complaints about race and, if they were, break them down as requested, it would take approximately 2 minutes per issue. This amounts to approximately 2806 minutes (46.76 hours).

So, without considering the information from Legal Requests, EASS or Notices of Commencement (3-5 above), we are already at 3,586 minutes (59.7 hours).

My first reaction to this detailed breakdown of how costly it would be to answer some (in my mind) perfectly simple and reasonable questions is yes, maybe it is a big ask. But on second thoughts, maybe not. The period I am seeking information on is well within the era of computers. It may be noted that in the same period under review (2015 to 2019, with more or less equivalent  financial year end periods) the EHRC’s income from the taxpayer was around £76 million. In that context, I am astounded that they do not have systems in place (as they acknowledge in their response above) to simply draw out the information requested at the touch of a button. Presumably they have a system of indexation?

What I find interesting here is that a body with possibly inadequate information systems, which finds it difficult to dig out relatively simple information  (‘records were not kept . .  thoroughly’) is now tasked to consider whether another body—the Labour Party—is better equipped to deal with complaints which may need a considerable time to consider. Judge not lest ye be judged may be a suitable working premise.

The observant reader will have noticed that the above answers—which are the complete actual substance of their response to my questions do not even tackle question (d), which is about their actual definition of anti-Semitism. This could be an oversight, but it is possibly a revealing one. I have asked the EHRC again to answer my question, which surely would not require more than five pound’s worth of anybody’s time to answer. The EHRC operates with the authority of law and it should not be acceptable, particularly in controversial circumstances to arbitrarily choose what definitions may or may not apply in its deliberations. I await their answer on that one.

Comments (25)

  • Mary Davies says:

    A shocking lack of accountability from the EHRC. They should not be trusted, therefore, to carry out a serious investigation.

  • Naomi Wayne says:

    Sorry to rain on anyone’s parade, but I dont regard any of this as that surprising, nor that significant.

    First, case management systems are difficult to devise, involve complex and very expensive IT and lots of error correction and false starts.

    Second, that the EHRC has an annual budget of £76m tells us nothing, unless we know what it (and its predecessor separate commissions) spent the money on – and my understanding is that the antidiscimination quango service has been seriously squeezed in the last few years.

    Third, as to the details of the EHRC response, I didnt understand the structure of the breakdown it provided, but assume it related to the different stages each potential case might go through. Thus, a case may start with a letter, more paperwork may be sought, preliminary investigation may take place, there will be several committee decisions regarding whether the case should be taken up by the EHRC and how far etc etc.

    Fourth, it seems to me that a couple of much simpler questions might elicit some specific figures more easily – i.e. how many complaints of racism has the EHRC received annually from 2015 to 2019 inclusive (so no need to check whether these complaints led anywhere), and how many of those relate to each of these political parties – Conservative, Labour, Lib Dem, Green, Brexit, UKIP, BNP. The only problem is – we can pretty much guess at the answer – the EHRC will have been deluged with complaints of antisemitism since Corbyn was first elected, and there will have been a vanishingly small number directed to the Tories (but mostly about other forms of racism). Neither of which proves anything about actual prevalence (scale).

    Fifth, I suggest much more valuable questions would centre around the terms of reference of the EHRC investigation, which are seriously questionable.

  • Kath Shaw says:

    Excellent work here. Hang on in there like a rabid dog.

  • Andrew Hornung says:

    No surprise. I did a similar thing in relation to the British delegation to the IHRA. I wrote to every member of the delegation asking them what exactly the text was on which they voted and how the voting took place. I suggested that they send me an extract of the minutes of the plenum where the decisions were made. I got two replies in all, both evasive and, of course, no extracts from the minutes. I wrote to Rabbi Janner-Klauser since she said she based her support on the fact that it was “the chosen definition of 44 countries”. I asked “since the IHRA consists of only 31 affiliated countries (with a further 11 Liason and Observer countries, which I assume have no vote), how did you arrive at the figure of 44?” She answered “Unfortunately I’m not a massive geek on this issue” and referred me to her Director of Public Affairs a phantomatic Mr Alex Fenton. After a long delay he cited family problems and promised to get back to me – that was 15 months ago. EHRC, IHRA delegates, BoD big-wigs, IPSO – all the same: small-toothed cogs of huge repressive machine.
    As for the weaponisation – day after day just before the election we heard the Labour right wailing of the shame of belonging to a Party being investigated by the EHRC.
    What’s important is to continue to question the mask of impartiality of these institutions. So well done, Colin Challen!

  • Sean O’DONOGHUE says:

    The time taken to create this prevarication/ obfuscation could have been used to look up and give you answers to half the questions you asked

  • Alan McGowan says:

    The information requested is surely core to the management of the EHRC’s own business. So the EHRC is overtly admitting it does not have adequate systems to manage it’s own business. As it acts on behalf of the State on matters vital to the public it’s ability to adequately respond to requests from the public should be very high on its list of priorities. No way is this acceptable.

  • Well done dear friends of JVL.. You are a credit to your faith. J.D

  • Philip Ward says:

    The EHRC board appears to have first discussed the 2 complaints made to them by the Labour Party in January last year at that point the legal director, Elizabeth Prochaska updated the board about progress and they decided the chair should give direction to the Prioritisation Group (?) as to the next steps. The next strep appears to have been a public announcement in March from a spokesperson saying they believed the LP may have unlawfully discriminated against people because of their ethnicity and religious beliefs, which looks like a bit of a prejudgement to me. In May 2019, they actually decided to undertake the investigation. There seems to have been a discussion about whether they should really do this and clearly there was some dissent about the reputation of the EHRC and apparently some concern about “the impact on the welfare of and support for decision makers and senior members of the EHRC staff who are visible in the public domain”. The board “agreed by a majority that the recommendation for investigating the labour party…”. They recognised the “need for a full communications plan to ensure clear, consistent messaging on the purpose of an investigation” which clearly has not happened at all.

    Six days later, on May 28th, the NEW legal director, Clare Collier, sent out the terms of reference. By July, Clare Collier was working for Liberty and an advert for yet another legal director was placed some time later, with an application date in November (very unlikely to be in post by now).

    So for the last six months, the EHRC has not had a legal director, who would seem to be the most important staff member needed for this investigation. Clare Collier’s departure seems to have been very sudden (she was promoted internally). To lose one legal director may be regarded as a misfortune: to lose a second looks like carelessness.

    Perhaps there is scope for a less complete FOI request?

    Correction: the investigation of Hillary Clinton was by the FBI, not the CIA.

  • Jessica Leschnikoff says:

    Cor! Well done on this.
    I think if they can’t provide this sort of information, for 76 squillion of public funds, there needs to be an enquiry as to what the hell they’ve been doing with it!

  • John Booth says:

    While it was an excellent initiative by a former Labour MP to challenge the EHRC on such basic matters, why aren’t the current ones holding this public body to account?
    Given this wholly inadequate response of the EHRC, will they, including the leadership contenders, do so now given the reputation of the party is on the line?
    If not, why not?

  • Roy Wilkes says:

    Perhaps it would be worthwhile organising with others to break the requests down so that each person’s request falls within the EHRC’s limit? I would volunteer.

  • David Roderick Joyce says:

    Thought I would introduce an interesting piece of fiction from Craig Murray in response to this. Link: https://www.craigmurray.org.uk/archives/2020/01/yes-minister-fan-fiction/ .
    Seems to sum up interestingly the whole of the Labour/Antisemitism/EHRC/BofD episode.

  • A suggestion from a fellow artist :
    Given that the EHRC gets its ‘commission to act’ from Parliament and that they have received a clear and reasonable request under the Freedom of Information Act, does their response fall within parliamentary accountability.
    It seems to me that ‘admission’ of inadequate record keeping and data management, together with the extraordinary paucity of the responses offered, may be matters for referral to the Parliamentary Ombudsman.
    Maybe Colin Challen should ask that the possibility of neglect of responsibility in relation to fulfilment parliamentary purpose, be investigated

  • JanP says:

    This FOI request is asking for too much at the same time. Has Colin Challon simplified his FOI request? Perhaps confine it to reports on racist incidents in the 3 political parties which have subsequently been taken up by the EHRC or the CPS? This would be manageable and would weed out the reports that have no evidence for them. Another FOI request could be put in later for another chunk of information. But well done, this is the way to go.

  • RH says:

    Astounding (well – perhaps not if one has a sceptical caste of mind)!

    Methinks an investigation into the EHRC might be appropriate.

    At the outset, the body was compromised on the issue of pre-judgement by a senior member of staff. To *even now* be unclear about what constitutes a definition that forms the basis of the investigation is amazing.

    I hope I’m wrong, because we do need a properly operating body such as the EHRC – but I fear that the current one is in the process of undermining its own credibility.

  • Ruth Millar says:

    Does the EHRC get “audited” in any sense? It sounds to me as if they are failing in their prescribed duty if they are unable to pull up information when requested. As such they are wholly inadequate for purpose, and not worthy of funding. In fact should receive a hefty fine for non compliance.

  • K.c.Haycock says:

    The most technical load of bullshit in response to a series of questions, amazing. If this organisation wants to be taken on a level and serious platform they should rethink their strategy.

  • Margaret West says:

    Concerning the “Definition of Antisemitism” of the 44 countries so far as I understand it there is a uniform acceptance of the textual part – but a disagreement regarding the “explanatory examples” provided.

    However this is anecdotal – I do not know actual numbers.

  • Bob Walker says:

    Yes Ruth, who audits the auditor? Who is the EHRC accountable to and how?

  • ruby lescott says:

    Roy Wilkes – I had thought the same thing. What’s to stop anyone requesting a tiny part of this? They cannot claim that one small question is too time consuming or expensive. Unless someone else wants to do it, or has already, I’d like to start with extracting their definition (will have to look up how to do it though, am on holiday right now).

  • Jennifer Joy-Matthews says:

    I think the suggestion to request chunks of information in sequence would be a good way to proceed. I would be happy to be involved. The least we need is to see the definition of anti-Semitism that are using for this investigation.

  • ruby lescott says:

    I’ve just emailed the EHRC to ask simply if they’re using the IHRA definition of anti-semitism in their investigation.

  • Naomi Wayne says:

    I am not clear that this article makes any useful points.

    First, the EHRC has to have some evidence to go on before it launches an investigation. The fact that it says it believes ‘the LP may have unlawfully discriminated against people because of their ethnicity and religious beliefs’ is NOT a prejudgment. It’s a statement that it has enough material to suggest there may be a problem which falls within its legal remit – after all, we would want the EHRC to have SOMETHING to go on before it launched an immensely disruptive and expensive exercise (and by the way, I am not saying the ‘something’ justifies the EHRC action, just that there must surely be ‘something’ to them going).

    However, there WAS a prejudgment, and this came from the CEO, who, well before the investigation got under way, announced by Twitter “Anti-Semitism is racism and the Labour Party needs to do more to establish that it is not a racist party.” This, plus, I believe, a similar statement at a public meeting meant the CEO had to stand back and play no part in the investigation.

    Second, if we ask simpler questions, we are likely to get more answers e.g. if we look for the annual incidence of racism complaints lodged against named political parties over, say, the last five years, that should be relatively easy to provide. (Note – it wouldn’t establish racism occurred, it would just be a record of allegations.) But what would such information it establish? If there are few or none complaints against the Tories, it may mean they are paragons of non racist perfection, or that people who are likely to be victims of racism are unlikely to engage with the Tories in the first place. If there are hundreds against Labour, this may mean the party is a disgrace and should be shut down, or that it is the object of an orchestrated campaign. . . .

    I am much more interested in knowing how the EHRC could have launched an investigation based on terms of reference which explicitly relate to three reports which have no legal status, and which explicitly say they may measure concerns against the terms of the IHRA Definition and Examples, even though this document has no legal status.

  • Andy says:

    Case management systems can be expensive to develop (although not always, the last two welfare rights organisations I worked for both developed systems from MS Access) but that is why there are a number of off the peg solutions available from various companies. All are designed to be adaptable and there is no reason why EHRC couldn’t have used one of these at relatively minimal cost.

    Secondly, and it’s a while since I last looked into Freedom of Info law so do check, but I’m pretty sure that when an organisation refuses to provide into on cost grounds they are obliged to provide advice on what they could provide and/or how questions could be reframed in order to fit within the time restrictions. So maybe they could advise you that they can’t give you 5 years worth of data but could give you 2 years worth which would be better than nothing. Might be worth pointing this out when you get back to them.

  • I thank everyone for their comments. Yes, this approach needs refining, and I will take up points which have been made, once the EHRC have answered the final part of my FOI request. In fairness to them they have suggested refining my request. However, it remains my belief that my original request was not unreasonable.

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