Labour antisemitism code could breach Equality Act

Labour has been warned that its antisemitism definition could breach the Equality Act, as the party battles to contain the fall-out with Jewish members over its new code of conduct.

The Jewish Labour Movement (JLM) will hand the party new legal advice, ahead of a crunch meeting on Tuesday, which advises that the party’s decision to exclude some examples from an international antisemitism definition breaches the 2010 act.

The advice, seen by the Guardian, suggests that because Labour has ignored the so-called Macpherson principle – that a racist incident is one perceived to be racist by the victim – when it comes to antisemitism, Jews are being treated less favourably than other groups.

The legal advice has been prepared by law lecturer Tom Frost and confirmed by Doughty Street QC Jonathan Cooper.

A Labour spokesman said it was “entirely untrue” that the party’s code of conduct was not fully in line with the Macpherson principles

The party’s equalities committee sparked controversy a fortnight ago after it agreed to adopt the working definition of antisemitism set out by the International Holocaust Remembrance Alliance (IHRA), but failed to include a full list of examples set out by the body. The full national executive committee (NEC) is to meet on Tuesday to agree the party’s new code of conduct.

The legal advice says that the decision to remove the four examples from the original definition was taken because a person’s motivation may not be antisemitic.

“This is fundamentally a misapplication of discrimination law,” the legal advice states. “The wrongdoer’s motivation may be a relevant factor in determining the scale and seriousness of the discriminatory conduct, but it is not determinative of whether or not discrimination has taken place.”

Activists have been angered because the rewritten Labour version of the IHRA definition did not include some formal examples of antisemitism, such as accusing Jewish citizens of being more loyal to Israel than their own nations, claiming that the existence of the state of Israel is a racist endeavour and comparing Israeli actions to the Nazis. Labour has argued those examples are already covered in the wider new code of conduct.

The advice said that particular assumption was only applicable when it came to judging antisemitism. “This is particularly concerning because it applies only to Jewish people, and not all protected characteristics,” the advice said. “This would therefore appear to meet the definition of institutional racism in the MacPherson report.

“The party has therefore exposed itself to a well-founded allegation of institutional racism, and potentially legal action.”

The Macpherson principle, which has been widely adopted since the murder of Stephen Lawrence as part of the inquiry into racism in the police, says: “The definition [of a racist incident] should be: A racist incident is any incident which is perceived to be racist by the victim or any other person”. Once the fact of the incident have been established, the burden of proof is then on the accuser to provide an alternative explanation.

Richard Angell, director of Labour’s centrist pressure group Progress said: “From the beginning it was clear that Labour writing its own definition of antisemitism was morally questionable, the fact it is legally questionable should kill the idea stone dead. Labour should be listening to Jewish people.”

Ivor Caplin, the chair of the JLM said: “The Equality Act is an important and significant piece of Labour legislation, which the Labour family strongly supported. To propose a code of conduct, which clearly breaches the law, is unacceptable.

“The NEC should on Tuesday reject the code, endorse the IHRA [definition] including all examples and then and only then can there be meaningful discussions on any additional points that may be relevant. What is clear is that to introduce a cod,e which is not compliant with the law, really is unacceptable and the wider public as well as the Jewish community will not see this as dealing with antisemitism.”

A Labour spokesperson said: “This is entirely untrue. Both our new code of conduct and our disciplinary procedures are fully in line with the Macpherson principles. When the party receives a complaint about an alleged antisemitic incident it will record the complaint as one of antisemitism when that is how the victim perceives it. This is exactly the same process for complaints about other forms of prejudice received by the party.

“The code of conduct is not a new definition of antisemitism. The code adopts the IHRA definition and contextualises and adds to the working examples to produce a practical guidelines that a political party can apply in disciplinary cases.”