Jews, antisemitism and the law

This is a revised version of a document included in the JVL submission to the EHRC, outlining the complexities of the law against discrimination within which the EHRC’s formal investigation must operate.

Its author, Naomi Wayne, was Chief Enforcement Officer for the Equal Opportunities Commission for Northern Ireland.

­­Want to know whether the Labour Party might have broken our equality law in its treatment of its Jewish members?  Well forget about ‘antisemitism’, whatever its definition.  Just hang on tight for a dauntingly challenging journey through the legislative complexities.  And don’t forget – this is a bare-bones summary – our Equality Acts themselves involve vastly more detail, complication and nuance!


Since Britain first introduced legislation prohibiting unlawful race discrimination over fifty years ago, Jews have been protected, though the method used has been not a little questionable. While religious discrimination was outlawed in Northern Ireland from 1976, there was no comparable protection in Great Britain.  So when British courts chose to protect Jews (and Sikhs) against race discrimination, they did so by acknowledging that discrimination against both groups was rarely on the grounds of religious belief.  Instead they squeezed us in under the race relations laws’ rather dubious categories of ‘race’ or ‘ethnic origin’. When, in 2003, prohibition of discrimination on the grounds of religion or religious/philosophical belief was extended to Britain via the Employment Equality (Religion or Belief) Regulations, Jews acquired this additional and alternative protection.

Current British anti-discrimination law is to be found in the Equality Act 2010.  This prohibits ‘discrimination’ on the grounds of a range of ‘protected characteristics.  These are age, disability, gender reassignment, marriage and civil partnership, pregnancy and maternity, race, religion or belief, sex, and sexual orientation.  We are only concerned in this article with ‘religion or belief,’ and with ‘race’ which ‘includes colour, nationality, ethnic or national origins.’

‘Discrimination’ encompasses several forms of wrongdoing:

  • direct discrimination: treating a person less favourably on the grounds of a ‘protected characteristic’ – here a person’s race or religion;
  • indirect: imposing requirements which have a disproportionately adverse effect on individuals or groups who possess a protected characteristic;
  • victimisation: treating badly a person who has challenged discrimination simply by alleging it has happened, or by lodging a grievance or legal complaint;
  • harassment: creating an intimidating, hostile, degrading or offensive environment or violating a person’s dignity via conduct which is unwanted, and which relates to a protected characteristic.

The Equality and Human Rights Commission (EHRC) has oversight over all British equality legislation, and hence over unlawful racial or religiously discriminatory acts committed against Jews as Jews. But it has no remit in relation to general behaviour no matter how unfair or obnoxious.  Consequently, the EHRC’s powers regarding acts which are said to be ‘antisemitic’ may be exercised only insofar as such acts constitute unlawful race and/or religious discrimination. This means that ‘antisemitism’ per se has no specific legislative definition, and the so-called ‘adoption’ of the IHRA ‘Definition’ and ‘Examples’, whether by the government or by other organisations and institutions, carries no legal implications.

Indeed, for purposes of determining whether the Labour Party has committed breaches of the Equality Act against Jews, the term ‘antisemitism’ is seriously unhelpful, and is far better not used.  Like members of all other ‘racial’ or ‘religious’ groups, the legal question in respect of Jewish complainants has always been, and continues to be: has this person suffered unlawful discrimination on the grounds of race and/or religion?

The EHRC has various mechanisms for conducting its oversight role. In the case of the Labour Party, it is deploying its power under the 2006 Equality Act to carry out an ‘Investigation’ as to whether the Party (and/or its employees, and/or agents) has committed an ‘unlawful act.‘  To start this off, the EHRC had to draw up Terms of Reference (ToR) specifying ‘the nature of the unlawful act which the Commission suspects’.  It had to give the person or organisation being investigated notice of the proposed ToR, allow a chance to make representations, consider (and if need be, amend the ToR) and publish whatever it decided the final ToR should be.

In spite of this perfectly clear legal framework, the final ToR of the Investigation into the Labour Party remain opaque.  We do not know what representations, discussions, to-ing and fro-ing there may have been between the EHRC and the Labour Party before the final ToR were issued.  But we do know precisely what we don’t know – the nature of the ‘unlawful acts’ which the EHRC ‘suspects’ the Party ‘may have committed’.  Even more remarkable, the Investigation, we are told, will ‘focus on a sample of complaints of alleged unlawful acts’; again nothing on the acts themselves, the size such a ‘sample’ might be, or how it might be selected.

The EHRC further proposes to look at the Labour Party’s rulebook and its internal disciplinary procedures, to see whether they ‘have enabled’ or ‘could enable it’ to deal ‘efficiently and effectively’ with complaints of any of the four kinds of race and/or religion or belief discrimination, including whether ‘appropriate sanctions have been and/or could be applied’; and also, ‘whether the Party has responded to complaints of unlawful acts in a lawful, efficient and effective manner.’  It would be neither surprising nor unreasonable to find the EHRC looking at the Party’s rules and procedures if we had been told what suspected unlawful acts were the cause of the Investigation. But trawling a political party’s rulebook to see if it ‘could enable (the party) to deal efficiently and effectively’ with discrimination complaints, when the nature of those complaints remains shrouded in mystery . . . On this basis, why indeed single out the Labour Party rulebook?  Does anyone imagine the Tories or the Lib Dems have state of the art rules and procedures to tackle race or religious discrimination?!

But of course, there are clues in the previous paragraph of the ToR issued by the EHRC.  Thus, it proposes to examine ‘the steps taken to implement the recommendations contained in (three reports)’.  And what unites those reports is that they are all concerned with allegations of antisemitism in the Labour Party.

The first is Baroness Royall’s Report, which contains the findings of a longstanding Labour Party back room operator, without legal training or expertise who was sent off to investigate goings on in the Oxford University Labour Club (OULC).  Drafted without a nod to discrimination law, Royall’s report relays her confused and desperate efforts to locate antisemitism in the OULC (with the results, ‘some incidents of antisemitic behaviour’ but no hard evidence of ‘intentional or deliberate acts of antisemitism’ and certainly no ‘institutional discrimination’).

Next comes the Home Affairs Committee Report, another document  about ‘antisemitism’, not race or religious discrimination, without a shred of legal status in respect of the Labour Party, and where incoherence and special pleading are the chief qualities on display. Neither this nor Royall have any conceivable relevance to the EHRC legal role of investigating possible unlawful acts of race or religious discrimination in the Labour Party, rather than allegations of ‘antisemitism’.

Finally, the Chakrabarti inquiry Report into antisemitism, which last, is at least written by someone who is legally literate, and which contains useful guidance incorporating the rules of natural justice into Labour’s disciplinary procedures.   If the EHRC investigation uncovers the way the Labour administration prior to Jennie Formby’s appointment responded (or rather, didn’t respond) to Chakrabarti, then it will be time well spent – though the relationship of a report on antisemitism to the commission of unlawful acts of race or religious discrimination is likely to remain tenuous.

Most peculiarly, right at the end of the Terms of Reference, a final clause appears to have been tacked on.  This provides that the Investigation ‘may’ also ‘have regard to the International Holocaust Remembrance Alliance’s working definition of antisemitism and associated examples , while recognising it is a non-legally binding definition.’  This is baffling.  An EHRC Investigation is a legal process, not a jaunt around any issues the EHRC might think interesting. So the value to its Investigation of having regard to a non legally binding definition of a phenomenon – antisemitism – which itself is not unlawful, is impossible to locate.  Even sloppier, if the EHRC really intends to ‘have regard to’ the IHRA’s ‘associated examples’, it will be wading into a quagmire whose depths will know no limits.

In spite of these problems with the way the EHRC has set about things, a few points of general principle can be made.

In the current atmosphere, it seems (surprisingly) necessary to point out that, whatever the Labour Party may or may not have done, its legal responsibility does not extend to the words or actions of non-members!  Why underline this? Well, Labour Party General Secretary, Jennie Formby reported, for example, that the great majority of complaints of ‘antisemitism’ brought to her office by Margaret Hodge MP relate to non- Labour Party members.  Many complaints from others seem to relate to social media postings, without any evidence that they are directly attributable to Labour Party members.

As the Labour Party is a political organisation, its business, both internally and externally, is political discourse: words, statements, arguments, expressions of belief and conviction etc.  While such words etc may be expressed strongly, even unpleasantly, and their content may be upsetting or ‘offensive’, this is recognised to be a routine part of political exchange, and not amenable to legal intervention, without evidence of potential unlawfulness over and above its manner of expression or the upset its content may cause.

Whilst only a decision at first instance, the Employment Tribunal discussion in Fraser v University and College Union  is enormously useful for its provision at Para 156, of an unequivocal statement of legal distaste for adjudicating political disagreements, together with equally clear acknowledgment of the legal constraints on interfering in freedom of speech:

‘. . . context is critical. The Claimant is a campaigner. He chooses to engage in the politics of the union in support of Israel and in opposition to activists for the Palestinian cause. When a rugby player takes the field he must accept his fair share of minor injuries . . Similarly, a political activist accepts the risk of being offended or hurt on occasions by things said or done by his opponents (who themselves take on a corresponding risk). These activities are not for everyone. Given his election to engage in, and persist with, a political debate which by its nature is bound to excite strong emotions, it would, we think, require special circumstances to justify a finding that such involvement had resulted in harassment. . .Secondly, the human rights implications of the claim must not be overlooked. As we have noted, Article 10(2) of the Convention countenances limitations on freedom of expression only to the extent that they are necessary in a democratic society. The numerous authorities under domestic and Community jurisprudence . . . emphasise repeatedly that freedom of expression must be understood to extend to information and ideas generally, including those which offend, shock or disturb society at large or specific sections of it’.

What may be unlawful within a political party are words or policies deployed in order to discriminate (within any of the four legal meanings) against a member or members of that party, who are also member(s) of a racial or religious category of people, provided the discrimination is attributable to the racial or religious category these member(s) inhabit.

Discrimination is a complex legal concept, as the four categories listed earlier show.  In real life, it is even more multi-layered.  Why do people discriminate?  They may have no idea they are doing so: that’s what indirect discrimination is about.  Thus, a political party in an area with few Jewish residents, may not understand when its first Jewish (and observant) member objects to it holding party social events on a Friday night: ‘It’s the way we’ve always done it. It’s the night that suits everyone else’.

Even when people intend to treat someone Jewish ‘less favourably’ (direct discrimination), what do they aim to achieve?  To stop the victim acquiring a benefit (e.g. golf clubs in pre Race Relations Act days which routinely ‘blackballed’ Jewish applicants for membership); to make the victim go away because they can’t bear the hostile behaviour; to relieve their own feelings of anger or hate?  The possibilities are endless, and perhaps more appropriate for elaboration by a psychologist, a historian or a social scientist.  The point is, any example of an actual alleged discriminatory event is just an example: it still has to be shown to have happened in fact, and that it fits into a legal category of discrimination.

So, for example, unlawful direct discrimination may be provable in a particular instance or set of instances if evidence of the following can be produced:

  • one or more acts of discriminatory behaviour, or a pattern of discriminatory behaviour by a Labour Party member or members including words or statements or operation of policies, plus
  • this behaviour being designed to achieve, say, some form of ‘exclusion’ of Jewish people. For example:
  • preventing Jews generally or a specific Jewish person or persons from becoming Labour Party members
  • Jews generally, or a Jewish person or persons deciding to leave the Labour Party, or not participating fully in its activities, including speaking at meetings, seeking political office, attending social events etc
  • ensuring Jews generally, or a Jewish person or Jewish persons do not secure political office,

plus

  • the motivation of those engaging in such behaviour being a person or persons’ race or religion.

Apart from indirect discrimination where the test is objective (behaviour having a disproportionately adverse impact), in all cases where discrimination is alleged, motivation on grounds of race and/or religion – not merely political disagreement, no matter how ferocious – must be demonstrable.  It is far from clear that, in many of the complaints subject of the current allegations about ‘antisemitism’ in the Labour Party, any or all of the requirements above have been satisfied.

Next, a comment about one word that has surfaced frequently: that complainant members have found words/statements etc used by other Labour Party members ‘offensive’.  At first sight the Equality Act’s prohibition of ‘harassment’ which includes ‘creating an . . . . offensive environment’ may appear to apply here.

However, as with other forms of discrimination, designating words/statements etc as ‘antisemitic’ (and hence ‘offensive’) will tell us little in legal terms. There will still be no unlawful discrimination unless three key criteria are met. The perpetrator must have engaged in unwanted conduct; the conduct must have been related to their victim’s race or religion; and it must have resulted in the creation of an environment which is ‘intimidating, hostile, degrading, humiliating or offensive’.

But just how do you know if the law will treat an environment as offensive?  Here, the victim’s emotional response is only one component in the mix.  The Equality Act 2010 again lays down three tests.  The first is subjective – ‘the perception of the complainant’ – but the next two are objective – ‘the other circumstances of the case’ and ‘whether it is reasonable for the conduct to have that effect’ (of creating . . . an offensive environment).

Let’s return to the Fraser case, where the complainant asserted that political debates about Israel at his trade union conference were antisemitic, and caused him hurt. Without needing to evaluate his claimed emotional reaction, the Tribunal found it was outweighed by other factors. As he was ‘an old hand’ at trade union and wider political activism, and had voluntarily chosen to become involved in the debate integral to a union conference, it was clear he was pretty much complicit in the situation in which he found himself.

Of course each case is dependent on its facts, how they mesh together, what else is going on etc.  Had Fraser’s union clearly tolerated hatred of Jews at the conference podium, and expected its Jewish conference delegates to put up with abuse aimed at their Jewishness, then, irrespective of Jewish delegates’ voluntary presence and understanding of how the conference was likely to pan out, the outcome of the case would have been very different.

Which brings us back to that EHRC formal investigation.  What will count here will be facts, demonstrable evidence of wrongdoing which fits under one or more of the Equality Act’s definitions of discrimination, and for which it can be shown that the Labour Party has legal responsibility.  Neither ‘antisemitism’ nor any of the twelve IHRA ‘examples ‘which may serve as illustrations’ of antisemitism should form part of the EHRC’s considerations.

In spite of the serious deficiencies in its Investigation’s Terms of Reference’, if, in carrying out the Investigation, the EHRC remembers what its role is, and does its job competently and according to the law on race and religious discrimination, then whatever its findings, it will do the Labour Party and Jewish people in this country a service.  If it forgets itself and wades enthusiastically into the morass of Labour antisemitism fever whipped up since Corbyn was elected, then it will harm Jews as well as Labour, and destroy its own credibility for ever.

 

 

Comments (9)

  • Rusere Shoniwa says:

    It’s hard to see how justice and equality will be served at the finish line of EHRC’s investigation when opacity has been baked in at the starting gun in the form of IHRA definitions that don’t have legal force. If you believe in starting as you intend to finish, let’s buckle up and prepare for a bad ending.

  • Richard Hayward says:

    A timely reminder of law, proportionality, justice – and reality.

  • Simon Dewsbury says:

    That is clearly and cogently put. I hope that the EHRC pay proper attention to it. Not least because a failure to do so could easily give grounds for a judicial review of their findings.
    But I’m not holding my breath.

  • And Rebecca Hilsenrath CEO of the Equality and Human Rights Commission (currently investigating the Labour Party for snti Semitism ) co cofounded a school that has “Advocacy of Israel” on the curriculum. She sent both her sons to the school.

  • michael murray says:

    Before Naomi Wayne’s work for “Jews for Justice in Palestine,” and as Chief Enforcement Officer for the Northern Ireland Equal Opportunities Commission Naomi was the “Legal Eagle” for the Irish Transport and General Workers’ Union, when I first met her. She was the author of “Labour Law In Ireland,’ the “go-to” guide to employment law in the Republic of Ireland for decades. And ‘go to’ for Industrial Relations managers as much as shop stewards and union officials for whom she wrote that brilliant paperback. I remember a union member telling me this story. The ITGWU member, a school pal, in a spot of bother, having been told he’d get better advice from a law firm than his union, turned up in the lawyer’s office to catch the lawyer who was to advise him thumbing through Naomi’s book.
    Togha cailin! She kept the faith.

  • Ian Saville says:

    Thanks, Naomi for this lucid and informative account. It is possible that the EHRC report will find that the Labour Party has no case to answer under its terms of reference, inadequate as they are. However, I am sure that the criticism will continue unabated, with the mere fact of an investigation being launched cited as evidence of some sort of wrongdoing by the party. If the EHRC makes even any minor criticisms of Labour’s practices – even if examples come from the McNicol era – that will also be held up as evidence of egregious malpractice, and the critics may lament that the party has just got off on some sort of technicality.

  • Naomi Wayne says:

    Ian – I am equally absolutely certain that whatever the EHRC finds, the criticism will continue – because a legal Investigation under the Equality Act is just that. It cannot resolve a political struggle – one way or the other. But it doesnt mean it isnt crucial to fight the legal battle as hard as possible. I dont understand why Labour didnt go to town on the terms of reference – if it was a political judgment not to, they got it wrong. And it won’t be a ‘technicality’ if they are found not to have committed any unlawful acts: if that happens, it will be up to the Party to put its case out. If they are found to have committed unlawful acts, then the issue will still be – did they? And if they didnt, I hope they will go to judicial review. But at present the thing to hang on to is that this shouldn’t be an Investigation into ‘antisemitism’, but unlawful discrimination. And finally – a lot of campaigners – feminists, anti-racists, disability activists, and some terrific lawyers (many of them Jewish) – fought bloody hard to get the predecessors of the EHRC set up and some of us also did our bit making those predecessors deliver something important to the groups ‘protected’ by the law It’s part of our ‘welfare state’. If it gets things wrong, it has betrayed all those activists and campaigners and workers, and needs to be held to account.

  • Terence Bayes says:

    Could you please enlighten me as to whether or not I am anti Semitic because I object to the persecution of Palestinians by the Israelites.

    [Web ed: Possibly. We trust you meant to write “Israelis”, giving you the benefit of the doubt. Using the biblical term “Israelites” suggest you think all Jews are involved, which would be antisemitic ]

  • Angus Bearn says:

    Excellent! Thank you.

Comments are now closed.