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IN its 2020 report into alleged anti-semitism in the Labour Party, the Equality and Human Rights Commission (EHRC) claimed that we had “contributed” to Labour’s “unlawful harassment” of its Jewish members.
After a lengthy legal process, in which we challenged the government quango’s finding against us, we have accepted a settlement offer made by the EHRC, bringing the judicial review to a close.
We firmly support freedom of expression, and we were worried that the purpose of the EHRC report was to shut down criticism of Israel.
Back when the EHRC report was published in 2020, pro-Israel activists like David Hirsh were quick to make assertions about its implications. Hirsh proclaimed: “The EHRC has crystallised a new legal precedent that the ‘Livingstone Formulation’ is anti-semitic.”
The so-called “Livingstone Formulation,” according to Hirsh, is “the phenomenon of responding to an accusation of anti-semitism with a counter-accusation of zionist bad faith.”
The purpose of this ridiculous notion is to silence anyone who objects to the vile dishonesty of false anti-semitism charges.
Moreover, following the report’s publication, anti-Corbyn barrister Adam Wagner claimed that the EHRC report’s “most important legal principle” was that calling out false anti-semitism claims “was not just unlawful, it was harassment.”
If Hirsh’s and Wagner’s claims were true, that would’ve had serious consequences for pro-Palestine campaigners in Britain, who are routinely targeted by false anti-semitism accusations in order to drive them out of public life.
As elected politicians, we had a duty, and we had every right, to publicly state our views and opinions, including on the so-called Labour “anti-semitism crisis.” We strongly believe that the EHRC’s finding against us was erroneous and based on distorted versions of our political remarks.
With the support of the Left Legal Fighting Fund — which assists activists, protesters and whistleblowers — we started a judicial review against the EHRC and we instructed solicitors in December 2020.
We challenged the EHRC’s finding that our remarks about anti-semitism in Labour were not protected under Article 10 of the European Convention on Human Rights, which safeguards freedom of expression.
When we first brought the case, we initially expected it to reach court by the end of 2021. However, various delays meant that the case ran on for almost three years, which is highly unusual. In the end, there was a real prospect that there would be no judgment until 2024 and then a real possibility of an appeal taking another year.
The case had also become increasingly complex. In February 2023, the court gave permission to the pro-Israel lobby group Campaign Against Anti-semitism (CAA) to intervene in the case.
The CAA, which lobbied the EHRC to investigate the Labour Party in 2018, was seeking to defend the EHRC report’s findings despite the EHRC having its own very well-funded legal team.
However, the CAA is now unable to make its arguments in court, despite likely having spent tens of thousands of pounds in legal fees. The lobby group’s desire to interfere in the case has essentially been thwarted thanks to EHRC’s offer to settle.
While much of the internal aspects of the case must remain confidential, we can say with some confidence that our legal action against the EHRC has given the regulator pause for thought.
The strength of our legal team and our stamina were, we think, a surprise to the EHRC and also to the CAA. Huge resources have now been expended not just on producing the report but also on defending it.
We would be very surprised if something like the EHRC anti-semitism report could ever be published again, given the robust challenges that would doubtlessly be made.
Our lawyers believed that the legal merits of the case were strong. The merits were also clear from the fact that the case was granted permission to proceed by a senior High Court judge.
However, faced with months if not years of more legal argument, we decided to accept a “drop hands” deal offered to us by the EHRC, in which each side withdraws from the case and bears its own costs.
Thankfully, the cost implications for us, despite a lengthy 32-month process, were much lower than the EHRC’s. We spent no more than £35,000, whereas the EHRC spent more than six times as much at over £215,000.
We think the EHRC understood that its investigation was flawed and that it acted unlawfully in singling us out. That’s probably why the equalities watchdog was willing to settle the case without recovering a penny of its exorbitant costs.
From what we understand, the Labour Party and CAA also likely spent tens of thousands of pounds in legal fees through their involvement in the case, which they are also unable to recover.
There are many reasons why we finally decided to accept the EHRC’s settlement offer. First, in spite of the bold claims made by pro-Israel activists, the EHRC report has not had its desired effect.
The report hasn’t become a legal precedent, and the so-called “Livingstone Formulation” is simply a spurious zionist talking point that no-one takes seriously.
Moreover, in many ways, our work has been done for us. The EHRC has been mired in scandal after scandal since it published its report in 2020. It’s a thoroughly discredited outfit and, by implication, so is its report.
The strategic thing to do now is to redeploy our efforts and finances elsewhere.
Pro-Israel campaigners have in recent years focused their energies on targeting pro-Palestine and anti-zionist teachers and academics — as well as students themselves — in schools and universities. These pro-Israel actors also continue to be at the forefront of campaigns against Muslims and Muslim organisations.
There is a lot of important work to be done. We hope that others will take up the mantle and join us in the ongoing fight for freedom of expression and Palestinian liberation, and support groups like the Left Legal Fighting Fund that have helped to open a new front against those who seek to destroy our movement.
To support the fund, visit www.fightingfund.org/donate.
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