Nick Fitzpatrick finds glaring issues with the panel put together by the NEC and its remit to investigate #LabourLeaks

Last month, apparently unnoticed by mainstream media (with the somewhat surprising exception of Sky News) outrage erupted across the UK left following disclosure of the 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 some shocking 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 evidence 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 Commission.  

Second, because it seemed to expose 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 Rayner 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 very 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 narrow 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 Labour Peers (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 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 fulfill 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 “wing person/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 and other professionals 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 the investigation in several key respects.  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 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 MPs and members of the House of Lords or at least have drawn comfort from such high ranking individuals and their teams (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, and 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 the 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 anti-Semitic 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 the 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  (none 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 previously discussed in published materials to my knowledge). 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 of substance to paragraph 1 above, 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, then 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.