Set up to fail? Labour’s not so independent Inquiry.

We have been sent this critical analysis of the Terms of Reference for the leaked Labour Party Report investigation by a party member.

The Terms of Reference, discussed below, “appear to demonstrate some fundamental failings on the part of the leadership to put in place a robust process”.

“The nature of these flaws is such as to fatally undermine any claim the inquiry can make to independence, and taints its activities and conclusions before it even starts…”

Last month, apparently unnoticed by the mainstream media (with the somewhat surprising exception of Sky News) outrage erupted across the UK left following disclosure of a leaked report of an internal investigation of the Labour Party (“The Work Of The Labour Party’s Governance And Legal Unit In Relation To Antisemitism, 2014-2019”). The report appeared to include direct material evidence of the conduct of party personnel during the period of Jeremy Corbyn’s leadership.

Many, from both within the party and more broadly across the political spectrum, were deeply troubled by the implications of the findings in the leaked report.

First, because this substantial piece of work seemed to include material evidence of a culture which inhibited, even sabotaged, the then Leadership’s drive to root out antisemitism from the party – evidence directly relevant to the ongoing investigation being conducted by the Equalities and Human Rights Commission.

Second because it seemed to expose evidence of a wider culture within the party apparently operating to subvert the election campaigns run by Labour, undermine the leadership and destroy the prospects of a Labour government led by Jeremy Corbyn.

Keir Starmer and Angela Raynor swiftly and correctly responded to the outrage with the following statement:

“We have seen a copy of an apparently internal report about the work of the Labour Party’s Governance and Legal Unit in relation to antisemitism. The content and the release of the report into the public domain raise a number of matters of serious concern.

We will, therefore, commission an urgent independent investigation into this matter.

This investigation will be instructed to look at three areas.

First, the background and circumstances in which the report was commissioned and the process involved.

Second, the contents and wider culture and practices referred to in the report.

Third, the circumstances in which the report was put into the public domain.

We have also asked for immediate sight of any legal advice the Labour Party has already received about the report.

In the meantime, we ask everyone concerned to refrain from drawing conclusions before the investigation is complete and we will be asking the General Secretary to put measures in place to protect the welfare of party members and party staff who are concerned or affected by this report.”

Many of us took comfort from the promise of a truly independent investigation. It promised a balanced and transparent examination of what has been going on inside one of our main political parties, untainted by political manipulation following the change in leadership within the party. A chance to break the conspiracy rumours, or prove them once and for all, to clean house and reset the party under its new leader.

Well, we now know more about the proposed investigation into Labour’s leaked report and it does not make good reading.

Labour’s NEC has appointed barrister Martin Forde QC to lead, with the support of three Labour peers. Terms of Reference have been disclosed. These appear to demonstrate some fundamental failings on the part of the leadership to put in place a robust process.  The nature of these flaws is such as to fatally undermine any claim the inquiry can make to independence, and taints its activities and conclusions before it even starts.

* First, the panel consists of 3 Labour Peers. This irredeemably compromises any claim to independence.

* Second, It is to be led by a legal figure, who, though distinguished in his field, appears to have no material experience of conducting exercises of this kind, based on his Chamber’s published CV. He is without doubt a distinguished and accomplished lawyer. However, his CV suggests little which would make him the obvious choice to front a major investigation like this one.

* Third, the terms of reference are flawed and narrow in that they do not clearly enunciate or oblige investigation into some of the key issues to have emerged from the report and instead suggest a focus for the investigation which centres on alleged racism, sexism and discrimination (which may well result in the neglect of these other key issues for the reasons set out below). Moreover they leave the scope of the inquiry to the discretion of Labour Peers. This is obviously unacceptable.

Puzzlingly, commenters on the left currently appear to be ignoring most of these key failings.

It is time for people to speak out urgently.

The presence of Labour Peers

The issue is not, as widely reported on leftist blogs and social media chatter,  just the identity of the chosen Lords (as flawed as that clearly is).

The issue is independence.

Replacing one Peer for another would not remedy this issue. The only solution is that no one affiliated with the Labour Party should sit on the panel. How can the inquiry ever claim any independence with senior Labour Party figures on it? This currently clearly runs a significant risk – indeed the likelihood – of political manipulation.

This is a very unusual and completely inappropriate step in the conduct of a significant independent investigation. It makes the inquiry political and taints any findings.

If Labour wants to put this issue to rest by inspiring confidence in its genuine desire to consider the issues fully – this is not the way to do it. If Keir Starmer is to fulfil his promise of an independent inquiry – this is not the way to do it.

The chair may call for evidence on structures from whomsoever he wishes, but if he needs ”wingperson/persons” on the panel these should, and would typically be, other trusted senior independent figure(s) from outside the party.

There must be NO Labour figure on the panel.

The Chair

Second, there is the issue of the chair’s CV, as published by his chambers. This can be viewed in full here: https://www.1cor.com/london/barristers/martin-forde-qc/.

His CV appears to include no experience of leading a panel of investigation at all.

His practice appears to be as a defending barrister, predominantly in the field of medical law. He appears to focus on defending doctors in disciplinary hearings. London is not short of legal personnel amply qualified and experienced to run this process. In that context, the appointment does not inspire confidence that this choice is suitable.

The logic of his appointment is difficult to justify.

The Terms of Reference.

Third, an analysis of the Terms of Reference (as published on Labourlist) shows them to be flawed and narrow – leaving the possibility that key issues will remain uninvestigated.

The key paragraph as to the ambit of the investigation is as follows:

“1. The truth or otherwise of the main allegations in the report (the panel shall determine which are the most significant allegations which require investigation but they shall include the extent of racist, sexist and other discriminatory culture within Labour Party workplaces, the attitudes and conduct of the senior staff of the Labour Party, and their relationships with the elected leadership of the Labour Party); “

This appears to be carefully drafted to appear expansive – yet it operates to close down investigation.  The paragraph excludes, for example, consideration of:

  • The relationship between “senior staff” and others within the party outside the “elected leadership”. This would exclude, for example, any investigation of collusion between staff members and, for example, MPs and their campaign teams, or senior ex members of the Blair administration or their PR teams, or members of the House of Lords. This is a key problem because if these allegations have substance it is necessary to establish whether these were just “bad apples” or “using loose talk but doing their jobs” or (as suspected by some) part of a broader conspiracy which could well have included MP and members of the HL, or at least have drawn comfort from such high ranking individuals (this being in the wake of and consistent with the toxic culture of the so called “Chicken Coup” against Corbyn). Any consideration of this key issue is very likely to be ruled out by the Terms of Reference as drafted.
  • The attitudes and conduct of members of the disciplinary team who were not “senior staff”. Query what this means. Does it, for example, include the investigators who played a key role? Is it just Iain McNicol? Why limit the inquiry in this way when the issue is the  “culture” within the party?
  • Query even, whether this remit includes looking at relationships with officials working for the leader. It certainly does not appear to directly require investigation of the relationship of the team with the likes of John McDonnell or his staff.

Instead, the focus of the paragraph is placed squarely on racism, sexism and discriminatory culture.

Given the involvement of the Chair with the Windrush Compensation Scheme, it seems not unreasonable to suppose that race and discrimination is set to be a key focus. The Terms of Reference are clearly intended to guide him in that direction.

As serious as that allegation is, it misses several key points.

The key issues which party members and the public need answers to – whatever the nature of the behaviour – include the following:

  • Were the events accurately described and did they in fact undermine the fight on antisemitism and/or have the effect of misleading the public and/or the leadership regarding the success of the disciplinary process?
  • Is there evidence of an intention to sabotage of our democratic party and institutions, and is there evidence of an intention to subvert the Labour election race(s) and the leadership’s chosen campaign?
  • Did the alleged conduct (including the alleged reallocation of Labour Party funds) evidence a criminal act or an act of gross misconduct?
  • Crucially, does the evidence point to a broader systematic campaign to undermine the elected leader of the party and if so who was implicated?
  • Equally crucially, does the internal Labour Party investigation establish any allegation of antisemitic behaviour by the Corbyn team, or any desire to cover it up?

How can a serious inquiry leave such questions unasked in its Terms of Reference? Why do the Terms of Reference not create a clear path for disciplinary or other legal proceedings?”

It will be very easy for an inquiry such as this  to find there was no racist, sexist, or discriminatory intent, or to slap wrists for loose talk in personal emails. Or for a “fall guy” to emerge leaving any broader plot unexamined.

Most importantly, this approach leaves it open for the inquiry panel – crucially – including 3 wholly non-independent Labour peers – not to consider any of those issues at all. Labour Peers are to have a hand in determining the scope. in context, this is totally unacceptable, and far removed from the independent inquiry the party faithful were promised.

Combined with other issues – such as a potentially constrained timeframe and/or budget, and/or a lack of power to compel the delivery of witnesses and evidence  (non of these details have yet disclosed to my knowledge) this will all seriously diminish the inquiry.

It is fatally flawed before it begins, unless the structure is radically changed.

The Terms of  Reference continued

The Terms of Reference go on to require consideration of:

“2. The background and circumstances in which the report was commissioned, written and circulated within the Labour Party, with its advisers and any other individuals external to the Labour Party, including the question of the purpose for which the report was commissioned and prepared, and the circumstances in which the report was put into the public domain; ”

It is interesting that, whilst the promised investigation at para 1 of the Terms of Reference has shrunk in scope, this paragraph extends further than previously indicated (the phrase “individuals external to the Labour Party” was never discussed). Why has this become an issue? the drafting suggests the draftsperson knows something we do not, and is determined to ensure that it is aired.  Time will tell.

Finally, the Terms of Reference look to:

“3. The structure, culture and practices of the Labour Party organisation including the relationship between senior party staff and the elected leadership of the Labour Party, as the panel think appropriate having regard to their investigation as a whole.”

This adds little to 1, but note the key role attributed to the Labour Lords in determining scope.  Again, this is completely unacceptable in an independent investigation.

What is missing?

Aside from the obvious flaws outlined above. The published Information leaves a number of other key questions unanswered.

  • Where is the power to compel witnesses and documentation?
  • Where is the information on timescale and budget?
  • Who provides the secretariat?
  • Where is the confirmation that findings will be published in full?

All of these elements fundamentally impact the review. They MUST be identified and published if this investigation is to be credible.

Without wishing to diminish the serious issue of racism – if this process becomes simply a discussion about people being nasty to, or about, Diane Abbott, as bad as that is, the whole investigation is worth little, will go nowhere and achieve nothing. This isn’t in the interests of the Labour Party, or for that matter, open democracy in this country.  We should be shouting about it as loudly as we can – now.

N Fitzpatrick

 

 

Comments (18)

  • RC says:

    A shrewdly put together critique. While I have been seriously concerned with opposing racism since Sharpeville (1960), salient in the sickening quotes were not racism or even sexism, but ruthless and unrelenting disloyalty to both the Corbyn leadership and also the LP’s chances of winning a general election. So the problem for personnel as well as remit is: who can, and how can they, analyse these loathsomely treacherous remarks, and the treachery to which they point, without a combination of commitment to Social Democratic (in the sense of the pre1914 Second International – the best nonsectarian criteria I can think of) political principles AND some degree of impartiality? Alf Dubs might have offered some faint hope, and it is interesting that he got 16 votes in his favour (against 18 against).
    The complaints of divulging the names of Jews who complained about their treatment seems to fall: Euan Philips – I neither know nor care about his ethnic affiliations, but what is clear is that he complains about the alleged sufferings of others, not of himself. Clearly vexatious and probably the one responsible for one third of the ‘complaints’…
    Plenty more to say…

  • Mary Davies says:

    Looks like we might be heading for a cover up…

  • hilary klonin says:

    the house of lords acted against jeremy corbyn therefore not independant, have conflict of interest, corbyn thinks they should be reformed
    everyone on panel is affluent and white but the report alleges racism
    there is no one working for an anti bullying organisation or experienced in it
    there should be representatives from areas such as grenfell as it appears labour did not support the mp in grenfell trying to do duty by them
    there should be lay person

  • Tim Barlow says:

    Yes, Mary, we may well be heading for a cover up.

    And a bloodbath at Conference, unless Starmer’s feeling the heat and cancels it on Covid-19 grounds!

  • elizabeth palmer says:

    1. I agree with the comments above on the limited terms of reference and scope of the enquiry;
    2. The inclusion of three Labour peers is derisory.
    3. There are many distinguished scholarly academic practitioners eg
    Hugh Tomlinson QC (Matrix) or David Feldman who are expert on issues around anti semitism. So far as I am aware Martin Forde is most notable for his leading compendious text book on human rights.
    4. To allay public disquiet this ‘enquiry should have been led by a retired judge – . Sir Stephen Sedley springs to mind.

  • jenny mahimbo says:

    As there are allegations of racism and sexism as well as a failure to deal with antisemitism, why is there nobody on the panel from BAME anti-racist/antisexist campaign organisations?

    Is there an intention to ask for submissions of evidence from CLP’s/members? It is not just the leadership that was targeted by this shower – CLP’s put on special measures, dictats and obstruction from GLU about what CLP’s can and can’t do, and in my CLP case – 3 years of pushing to get a holocaust denier expelled despite irrefutable evidence i.e. actual publications online, (although this is mentoned in the report I believe). As a left exec, once elected we spent 3 years being micromanaged, obstructed and interfered with.

  • Stuart Goodman says:

    Perhaps I’m being picky, but whilst ever it is referred to as the LEAKED Labour Party Report then the more emphasis is put on the fact that the Report was leaked rather than the shocking contents of the report itself.
    Putting aside me being a bit picky, this is NOT the right way to carry out an investigation. In any organisation that I have been associated with, if someone was accused of wrongdoing (by, for example, working against the aims of the organisation, lying, withholding information, being racist etc.) the first and most appropriate action is to suspend the accused on full pay pending an investigation.
    Why haven’t the accused been suspended?
    Is it perhaps because Starmer would have to start by suspending himself in acknowledgement of his own role is sabotaging the Labour Party’s election campaigns?

  • hilary klonin says:

    House of Lords acted against Corbyn and have conflict of interest. Corbyn wants to reform house of Lords
    All are affluent white people reviewing racism. No one from BME less afluent background or Westminster for instance where Dent – Coad struggled to get support for Grenfell and is targeted apparently ie people who may directly suffer from moves against Corbyn’s Labour
    No one involved in anti bullying charities or organisations

  • MAX COOK says:

    I am neither surprised nor excited by this report, it was obvious from the start that starmer wouldn’t or want to get the TRUTH
    If it’s a cover up then I and many many tens of thousands will have no option but leave, then join a truly socialist party.

  • Sarah Banks says:

    Misappropriation of party funds is key to this inquiry, and should be included in the scope of this investigations

  • Philip Ward says:

    The terms of reference also say nothing about the relationship (and communications) of the various cabals at Labour Party HQ, the leadership and the PLP with organisations like the JLM, BoD, LAA and the CAA.

    I would wager that in the thousands of WhatsApp and email communications that have not been published or mentioned in the REPORT, there will be a considerable amount of damning information about the “need to get left wing anti-zionists out of the party”. The question is how to get hold of that stuff, information that it didn’t suit the supporters of Corbyn to make public in the report, as it would expose their approach to “dealing with antisemitism” as – in large measure – doing the bidding of the pro-Israel groups listed above. Labour’s enquiry isn’t going to look at it.

    I should add that Ruth Lister has a long record of advocating for the oppressed, trying to get governments to do something about poverty, but I’ve heard very little about her activities in the 20 years since she became a Lord.

  • john burns says:

    Clearly, as this critique shows, the issue is very complex and there is a suspicion that some people do not want to get at the truth. It has to be said that we’ve all seen the ‘terms of reference trick’ played before, have we not? I have no right to comment on Joanna Baxter’s paper, so must accept it in good faith; however, does it represent a collective view or was Joanna sole arbiter?
    On reference to the H.o.L’s and neutrality: well it’s problematic by way of the H.o.L. being full of dodgy characters playing the establishment game, IMO. Our Party constantly has called for H.o.L. reform or abolishen, yet here a plea for their ‘divine’ intervention. I can think of quite a few so called independent or cross bench Lords, who one would definitely not want to be anywhere near such an important investigation.
    The Party has always been good at obfuscating information to members whilst of course always maintain it listens to us: all I feel on that is yes, if any enquiry can lift these veils safely, so much the good. But equally, there are individuals clearly compromised by their activities – senior figures, existing M.P’s at the time and members of crucial management teams. These people are known so let’s see how near to being banged to rights they really are. And if so they should be expelled from the Party, like others who have been, for misdemeanours IMO, that paled into insignificance vis a vis the charge of sabotage of our Party’s efforts – which is what we are fundamentally looking investigating are we not?

  • RH says:

    “In the meantime, we ask everyone concerned to refrain from drawing conclusions before the investigation is complete and we will be asking the General Secretary to put measures in place to protect the welfare of party members and party staff who are concerned or affected by this report.”

    The only response to this from anyone familiar with the action taken against left-wing anti-racists on the basis of fake allegations is a hollow laugh.

    If only those cases had been backed by the publication of the same extensive quality of evidence – open to examination.

  • Diamond Versi says:

    I agree with most of the contents of this article as regards the terms of reference because we are not interested in who or how the report was leaked. Where I disagree is the allegation that the choice of the head of enquiry is not appropriate. The writer has not suggested an alternative apart from asserting that there are plenty out there to choose from. I believe we need someone who has an eye for details and a barrister has that attribute. I cannot see why he cannot be independent. As to the choice of Labour peers I agree that they could contaminate the outcome but again the writer has not proposed any alternatives. So where do we go from here?

  • Thomas Stephenson says:

    Very concerned at what appears to be a White Wash enquiry.. How can our party ever regain the trust of its activists with this level of BS more typically found in the conservative party.. Starmer himself is a member of the legal profession.. Surely he can see the disgrace offered by this obvious farce.. Frankly I am not impressed by the current front bench and minions running them – complete independent enquiry NOW!

  • Brilliant commentary on the proposed investigation : “investigation needs investigating ” forgive me if I publicise this under that title.

  • Doug says:

    First of all the report scuttled the EHRC investigation and takes down legal cases from those involved in Panorama Drama
    It cannot be white washed, members should use the report to go out and recruit at least one more socialist to the party
    We then agree a left wing slate at every level and vote them in to power
    If Keir let’s us down we need to replace him
    Labour is our party not theirs, it’s up to us to force them to leave

  • An artist on a traditionally low income, I contributed funds to the campaign for a Corbyn victory. The result broke my heart – and faith. I want my money back!

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