Whatever happened to the Forde enquiry?

Eight months have passed since eminent barrister Martin Forde was asked to investigate Labour’s leaked report into antisemitism.

The report, entitled “The work of the Labour Party’s Governance and Legal Unit in relation to antisemitism, 2014-2019”, was commissioned by then-general secretary Jennie Formby, an ally of Jeremy Corbyn, during the dying days of his leadership. It was leaked to the press in April 2020 after Labour Party leader Keir Starmer elected not to publish it.

The leaked report produced a mountain of evidence which, if true, largely exonerated Corbyn of the charge that he had been complacent on antisemitism. Instead, it pointed the finger at party officials who had been among his fiercest critics.

Forde’s report into that leaked report was due to have been published before the end of 2020. Just before Christmas, it was quietly announced that publication has been delayed until “early in 2021”.

How Forde’s focus changed

But more important still, the Forde inquiry’s terms of reference have been watered down.

Labour’s National Executive Committee originally charged Forde with three major tasks. The first, and most important, was to “investigate and report on the truth or otherwise of the main allegations in the report”. Second, the NEC ordered Forde to establish why the report was written and how it was leaked. Third, it instructed him to examine “the structure, culture and practices of the Labour Party”.

But much of this was quietly ditched in a “call for evidence” issued last summer. In an announcement all but ignored by the mainstream media, the Forde inquiry said that its “focus”, from that point on, would be the third aspect: the most nebulous of the three areas of investigation.

Forde explained this decision on the grounds that it did “not intend to duplicate” three other investigations: the Equality and Human Rights Commission’s (EHRC) report on Labour’s handling of antisemitism (which concluded in October); the investigation by the UK Information Commissioner into possible breaches of data and privacy law; and “an internal investigation by the Labour Party into the leaking and content of the [leaked] report”.

We wrote to the Forde inquiry on 21 December concerning this third point. Why, as an independent inquiry, was Forde deferring to an internal investigation? In response, the Forde inquiry secretariat provided no explanation, but reiterated that it “did not intend to duplicate” other investigations.

Further mystery concerns Labour’s “internal investigation” itself, which has never been formally announced. In July, six constituency party representatives on Labour’s NEC wrote to the Forde inquiry stating “we are not aware of any Labour Party investigation into the content of the report”.

In an attempt to establish details, Middle East Eye sent a series of questions to the Labour Party on 10 December. Is the “internal investigation” still ongoing? What are its terms of reference? When is the internal inquiry likely to be completed? Will the findings of the internal inquiry be made public?

After repeated prompting by email, telephone and text, Labour finally responded on 21 December by declining to comment.  It stated:

“We’d just refer you to comments we made when the inquiry was set up. The NEC has appointed Martin Forde to chair the independent investigation into the circumstances, contents and release of an internal report. Forde will be supported by a panel of three experts who have expertise in the law and the Labour Party’s structures.’”

This silence may reflect some anxiety within the party about the Forde inquiry and the course it is taking. Despite the narrowing of its terms of reference, in November the Observer newspaper quoted Labour insiders as saying that it had become “a nightmare”. One said: “We have created a real millstone here. The inquiry seems to be looking at everything.”

Explosive issue for Starmer

The original leaked report was commissioned to inform Labour’s response to the EHRC inquiry into antisemitism in the party. In the media it was attacked as an exercise in self-justification by the outgoing Corbyn regime. But it was a serious, detailed piece of work that produced startling conclusions.

Running to 851 pages, it drew on tens of thousands of internal emails as well as three WhatsApp groups used by senior staff at party HQ. It even examined the metadata on the computers of party employees. Its findings were threefold.

First, that the party bureaucracy Corbyn inherited from previous Labour leader Ed Miliband in September 2015 was ferociously hostile to the new leadership. Second, that this bureaucracy was not only obstructive and uncooperative but worked actively to undermine Corbyn. Third, that the bureaucracy was hopelessly inept at dealing with antisemitism. The report did not suggest that this was a deliberate attempt to create embarrassment for the leadership. Instead, it speculated that officials had been distracted by a relentless focus on cases that served a more obvious factional agenda.

Between November 2016 and April 2018, the party failed to act on around 170 valid complaints, the leaked report said. The number of notices of investigation, suspensions and expulsions connected to antisemitism all rose exponentially once Iain McNicol, who had been general secretary since 2011, was replaced in the spring of 2018 by Corbyn loyalist Formby. In 2019 there were 45 expulsions; in 2017 there was only one.

What makes this issue potentially explosive for Starmer is that the officials who ran the complaints process prior to the spring of 2018 were among those who queued up to condemn Corbyn for his handling of antisemitism in the highly influential BBC Panorama report Is Labour Anti-Semitic?, broadcast in July 2019. “I am heartbroken and disgusted that the party I joined over a decade ago is now institutionally racist,” said Sam Matthews, the former head of disputes, during the Panorama programme.

At that time, the Labour Party’s response was to describe them as “disaffected former officials … with personal and political axes to grind”. This prompted Matthews and six other former officials to sue, along with John Ware, the reporter on the Panorama programme. The officials stood by the criticisms voiced in the programme and firmly rejected the suggestion they were politically motivated.

Desperate to draw a line under the issue of antisemitism, one of Starmer’s first acts as leader was to apologise to the complainants and grant them a generous out-of-court settlement. Corbyn described this as “a political decision, not a legal one”. He pointed out: “Our legal advice was that the party had a strong defence.”

Crucially, the decision to make the payouts seemed to pre-judge the findings of the Forde inquiry. It’s possible that decision is now returning to haunt Starmer. If Forde concludes that the leaked report was accurate, then the Labour leadership will have some explaining to do.

Flaws of EHRC report

The Forde inquiry’s announcement that it intends to “take into account” and not “duplicate” the EHRC report is also intriguing.

The EHRC report was generally taken as a thunderous endorsement of the dominant media narrative on Corbyn and antisemitism. In fact, as Middle East Eye reported at the time, it isn’t.

Read carefully, the actual evidence in the EHRC report largely vindicates the narrative presented by the Labour Party’s own leaked report. The bulk of its criticisms relate to the period before Formby took over as general secretary in the spring of 2018.

The EHRC simply elected to make no reference at all to the fact that, throughout this period, party HQ and the complaints process was under the control of officials hostile to Corbyn. Not a single official from the McNicol era is named at any point in the report. In contrast, Formby is named 13 times.

Indeed, the more you read the EHRC report, the stranger it becomes. It found that “the Labour Party breached the Equality Act of 2010 by committing unlawful harassment through the acts” of two of its “agents”.

This referred to Ken Livingstone (who defended Naz Shah MP after she posted a cartoon during the 2014 assault on the Gaza Strip suggesting that Israel be relocated to the US) and local councillor Pat Bromley (for social media posts referring to “bogus accusations” of antisemitism and a “fifth column in the LP [Labour Party])”. Bromley also wrote that “the lobby will … melt back into its own cesspit”, a reference to supporters of Israel.

In fact, Bromley was expelled from the party and Livingstone resigned. Admittedly, this was after a delay. But in Bromley’s case, disciplinary proceedings didn’t begin until the day after Formby took over as general secretary. During the McNicol era, the allegations against Bromley were sat on for almost a year. And in Livingstone’s case, the party leadership under Corbyn actually intervened to compel the pre-Formby disputes team to speed up the process.

Bizarrely, the Livingstone case was then cited as evidence for the report’s second charge: that of “political interference” in the complaints process. The report said that, in total, it had detected 23 instances of unwarranted intervention by the leadership.

When we asked the EHRC on 27 November to provide us with a detailed breakdown of the nature of these leadership interventions, it refused, saying that it was “legally prevented from providing details of the evidence obtained during the course of an investigation”. But it appears likely that the bulk of the interventions were aimed at expediting disciplinary action rather than hindering it.

The EHRC report provided three examples where the leadership intervention might be seen as favouring those accused and three where the intervention appeared designed to expedite procedures. But the leaked Labour Party report laid out, in painstaking detail, evidence of constant pressure from the leadership for harder, faster measures during the period when McNichol was in charge.

Ten of the 23 interventions mentioned in the EHRC report were during the spring of 2018, the interregnum between McNicol and Formby. It was a period which saw a sharp rise in the number of suspensions and notices of investigation related to antisemitism.

In its report the EHRC acknowledged intervention had “in some cases … catalysed action” but said this was irrelevant because interference of any sort led to “the contamination … of the fairness of the process”.

This might have legal validity but it defies logic. It’s worth recalling that the submission to the EHRC by the anti-Corbyn Jewish Labour Movement stated explicitly that decisions taken by staff in the Governance and Legal Unit (GLU), which handled antisemitism complaints, were “undermined” by the leader’s office.

Corbyn’s team “expected the GLU staff to follow unwritten guidelines that raised the bar on which antisemitic conduct warranted disciplinary action”, it said. Separately, Sam Matthews said that the leadership intervened “mainly so they could let their mates off the charge”.

We now learn that in Livingstone’s and a number of other cases the precise opposite was true. We are expected to swallow the argument that this is irrelevant – which the mainstream media, in its entirety, has obligingly done.

Facts and narrative

Corbyn was under relentless pressure during his time as Labour leader to get tough on antisemitism. It’s absurd that his efforts to respond to this pressure should now constitute one of the principal charges against him.

It’s striking that the apparently inviolable principle of non-intervention by the leadership is not being applied by his successors.

On BBC Radio 4’s Today programme on 30 October, the day after Corbyn was suspended, Starmer presented the move as evidence of his own political virility: “I’m not going to shy away from difficult decisions. That’s what leadership is – difficult decisions. We made a very difficult decision yesterday.” Deputy Leader Angela Rayner subsequently declared: “If I have to suspend thousands and thousands of members, we will do that.” There has been scarcely a murmur from the press.

In addition to “unlawful harassment” and “political interference”, the EHRC’s third charge against the Labour Party was that inadequacies in training for staff handling antisemitism complaints also amounted to “indirect discrimination”. It acknowledged that the party was providing educational courses on antisemitism but said these lacked a “practical” element.

At the end of five years of relentless vilification of Corbyn and his team, viewed dispassionately, these three charges are desperately thin gruel.

The puzzle is that the most obvious charge to bring against the Labour Party was the dysfunctionality of the complaints procedure prior to February 2018. Did the EHRC shy away from this because they feared it would oblige them to name the officials in charge at that time? If so, why was this a consideration?

It’s hard to escape the conclusion the EHRC bent over backwards to frame its evidence in a way that would be as damaging as possible to Corbyn.

The irony is that, far from being too tolerant, there is much evidence to suggest that the Corbyn leadership – desperate to deflect criticism – tackled the issue of antisemitism all too vigorously once it had control of the party bureaucracy.

As Middle East Eye revealed in September, at least 24 of those who found themselves under investigation were Jewish (the figure is now 27). Many were guilty, not of traditional antisemitism, but hostility to Israel and/or Zionism.

It is also significant that the EHRC report “identified concerns about fairness” to the person accused in 42 of the 70 cases it studied – a remarkable 60 percent.

Among the high-profile examples that the EHRC cited were Chris Williamson and Jackie Walker (although Walker isn’t named, the details provided are clearly hers). Along with Livingstone, these cases were the focus of the most ferocious criticism in the press for supposed foot-dragging by the party. Far from seeking “to let their mates off the charge”, it now seems the leadership was bending over backwards to prosecute them, to the extent that it was possibly bending the rules.

In early December, entirely ignored by the media, seven Labour Party members under investigation over antisemitism – four of them Jewish – took the party to the High Court, alleging that the party’s disciplinary procedures were “unfair and not fit for purpose”. The findings of the EHRC report constitute their principal supporting evidence.

Starmer is exasperated by his failure to put this issue to bed and the mainstream media mystified by the fact it keeps rearing its head. But the facts stubbornly refuse to conform to the dominant media narrative.

Evidence contained in two detailed reports now suggests that the Labour Party’s failings in handling antisemitism complaints were, in large measure, not the fault of Corbyn. On the contrary, it seems that it is some of his fiercest critics who have a case to answer. Yet they are in receipt of considerable quantities of Labour Party funds, while it is Corbyn who has had the whip withdrawn.

The choice facing Martin Forde QC is a simple one. Does he obfuscate and distort – trusting that, as with the EHRC report, a complicit and inept media will fail to probe and scrutinise his findings?

Or does he honestly investigate the reality of what happened within the Labour Party between 2015 and 2019 – no matter how embarrassing it is for Keir Starmer?

Clarification: This story was updated on 12 January to make clear that in its announcement last summer, the Forde Inquiry did not say it would “only” focus on the third of its terms of reference. The inquiry has stated that it will investigate all three terms of reference, but that it will “not be duplicating” other investigations and that it will”focus its recommendations” on the third.

The views expressed in this article belong to the author and do not necessarily reflect the editorial policy of Middle East Eye.

Richard Sanders is an award winning TV producer specialising in history and news and current affairs. He has made more than 50 films, mostly for Channel 4. He has written for a number of publications including The Daily Telegraph and the Boston Globe and is also the author of two history books.

Peter Oborne won best commentary/blogging in 2017 and was named freelancer of the year in 2016 at the Online Media Awards for articles he wrote for Middle East Eye. He also was British Press Awards Columnist of the Year 2013. He resigned as chief political columnist of the Daily Telegraph in 2015. His books include The Triumph of the Political Class, The Rise of Political Lying, and Why the West is Wrong about Nuclear Iran.