Labour Code+ and IHRA – the caveats already in place and what else is needed

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As the SKWAWKBOX published last night, the voting balance on Labour’s National Executive Committee (NEC) is such that it is effectively certain that the 4 September NEC meeting will vote to incorporate all eleven examples attached to the IHRA (International Holocaust Remembrance Alliance) ‘working definition’ of antisemitism into Labour’s Code of Conduct.

The existing version of the Code references all the examples and actually strengthens some – but clarifies the application of a small number considered to be dangerous to free speech, particularly on Palestine, and to the right of Palestinians to define their own terms in discussing their oppression. It has been greeted as a gold standard of political documents on the topic by some – and attacked by pro-Israeli groups for not incorporating all the examples verbatim.

Those who have concerns about the impact of the full inclusion of all eleven examples, either as an appendix or in the body of the code, fear – justifiably – that the incorporation of all the examples without adequate caveats will immediately trigger an avalanche of politically-driven complaints by right-wingers eager to purge opponents from the party.

Understandably, they want to know what would be in the ‘Code Plus’ – a new version of the Code of Conduct with all the examples but with existing protections maintained or strengthened. But the short answer is that it’s not yet fixed – until the NEC debates and votes on it in a couple of weeks’ time.

But to understand what a new Code – ‘Code Plus’ – is likely to look like, the existing Code and its protections are a good place to start.

IHRA text not a legal definition – on its own

The Code points out, as does the IHRA ‘working definition’, that the latter is not a legal definition – on its own, without clarifications, it cannot be used as a legally-enforceable document. Though of course this hasn’t prevented some from trying, Labour’s Code is more suitable:

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IHRA examples and the Code both mandate: context is key

Those opposed to the adoption of the remaining IHRA examples might easily be unaware of it, but the IHRA text itself specifies that its examples are not absolute – they are dependent on context.

This has often been ignored by those determined to exploit them as absolutes – and the caveats in the existing Code have been attacked as if the IHRA does not specify that the examples only might be of antisemitic behaviour, subject to context.

But it does – and an honest use of the ‘working definition’ requires that this be acknowledged. Labour’s Code does:

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Even in the first version of the Code, no absolute application can be legally justified – however much right-wingers might wish otherwise.

Also important is that the Labour Code makes explicit what the IHRA definition actually omits – that antisemitism is hatred or prejudice toward Jewish people because they are Jewish.

Israel can be criticised

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The existing code protects free speech on Israel, while rightly ruling out behaviour where there is evidence of antisemitic intent – the ‘context’ mentioned in the introduction to the IHRA examples.

What needs to be strengthened?

While the existing Code already stands far above anything implemented by other political parties and contains provisions to protect free speech and guide members on the limits of acceptable behaviour that do much to mitigate the potential dampening effect on free speech and on the rights of Palestinians, the protections are incomplete and in some cases less than perfectly clear.

Labour activists have identified some key areas that need to be strengthened or made more explicit.

No retrospectivity

A key concern of Labour supporters of Palestinians and their right to self-determination is that the day after the inclusion of the additional verbatim examples, the Labour right will launch a huge programme of complaints designed to sideline or expel larges numbers of its opponents.

There is much justification for this fear, as numerous troll accounts and individuals have already spent considerable time trawling the social media feeds of pro-Palestinian members for every tweet or comment that could possibly be construed to support a complaint – and in some cases, evidence has been fabricated to discredit opponents.

Clear principles of law and natural justice make it clear that no rule or law can be applied to events that happened before the rule was in place – so in reasonable times no explicit mention should be needed that the Code of Conduct cannot be used to penalise behaviour or comments that took place before it was in place.

But these are not reasonable times – the revised Code must state explicitly that no past behaviours fall under its provisions.

And if those calling for the adoption of the remaining examples genuinely want them in place for the protection of our Jewish members and population – rather than for political purposes or score-settling – they will also fully back an explicit ban on retrospective application of the Code. Protection is only needed against what might happen going forward, not from what is already past.

The Supremacy of Human Rights legislation

The revised Code must make clear that none of its text, its Appendices and Supporting Documents, its meaning, or any interpretation or application may compromise the rights and obligations established by the Human Rights Act. This will ensure that legally-protect freedom of expression within the Party is no less than what is guaranteed by the law in the UK as a whole.

Select Committee caveats – extended

The Commons Home Affairs Select Committee issued caveats it felt must be applied to the IHRA ‘definition’ and examples for it to work justly in relation to criticism of the actions of the Israeli government. These are broadly reflected in the existing Code and the existing Code addresses discussion of ‘Zionism and Zionists’ – but activists believe they need to be strengthened to ensure they apply to criticism of the Israeli state and to Zionism as an ideology as well as to the government and its policies or actions.

In addition, the IHRA examples have already been used by Barnet council to ostracise as inherently antisemitic every individual or organisation supporting BDS – the ‘boycott, divestment and sanction’ campaign to support Palestinians by boycotting goods made, and companies active in, illegally-occupied territories.

The current Code is unclear on the issue and should contain a clear statement on the validity of the campaign. As Unison, GMB and other unions officially support BDS, there should be ample support on the NEC for the inclusion of a positive statement in the updated Code.

Internal consistency

Highly-regarded barrister Hugh Tomlinson QC has identified aspects of the eleven ‘contemporary examples’ that couldappear to condemn as antisemitic conduct which does not constitute or manifest hatred or intolerance against Jews“, while the code itself states that antisemitism “is a certain perception of Jews, which may be expressed as hatred toward Jews.”

In case of disciplinary hearings or legal dispute, such a contradiction could mean that both plaintiff and defendant could claim justification from the code with equal strength, making any judgment dependent on the subjective opinion of the panel or court.

To resolve this problem, Tomlinson states that the definition itself must always be considered superior to the examples in case of any conflict:

In summary, therefore, it is my view that
(2) The “examples” accompanying the IHRA Definition should be understood in the light of the definition and it should be understood that the conduct listed is only antisemitic if it manifests hatred towards Jews.

Penalties for abuse

This is perhaps the most controversial of the provisions that many consider need to be included in ‘Code Plus’ – but is a clear necessity in view of the risk of politicised exploitation of the Code and/or examples.

In law, making a false, vexatious accusation carries penalties to discourage such behaviour.

Given the highly-charged atmosphere prevailing, no individuals or faction must feel they can fire accusations at preferred targets without proper justification or with impunity if they are vexatious.

An accusation of antisemitic behaviour – and even more so a judgment confirming it – is a serious and potentially lifelong stain on a reputation, For the protection of members against the use of accusations as a political weapon, vexatious accusations must involve a penalty – and in view of the seriousness of the accusation, that penalty should be severe if an accusation is found to be genuinely vexatious.

Disciplinary processes in this area cannot be a one-way street.

Comment:

If Labour members feel that the rights of the oppressed and of members are properly protected by a Code that includes all of the IHRA ‘contemporary examples’, they can – and most will – back it wholeheartedly. ‘Code Plus’ is therefore an opportunity for a meeting of genuine minds on both sides of the IHRA debate.

The voting arithmetic on the NEC effectively guarantees that the remaining examples will be adopted – but many NEC members who intend to support that adoption also support retained and strengthened protections and clarifications.

Labour members will therefore do far better to direct their energies into lobbying their union or member representatives on the NEC to back these examples than in trying to prevent the IHRA examples being adopted.

And if those calling for their adoption genuinely have the protection of Jewish people at heart, they will do the same.

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