Set up to Fail? Labour’s Not so Independent Inquiry

An internal Labour party report caused outrage amongst the UK left when it leaked online last month, apparently revealing attempts by senior management to undermine Jeremy Corbyn, sometimes at the expense of dealing with serious complaints against party members, including those relating to antisemitism. 

The Labour party quickly announced an “independent” investigation into the document and its disclosure. This probe, however, is seriously flawed.

The leaked report. 

The 860-page report appeared to include direct material evidence of the conduct of party personnel during Jeremy Corbyn’s leadership.

Many, both within the party and outside it, were deeply troubled by the implications of its findings.

First, because this substantial piece of work seemed to include material evidence of 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 and Human Rights Commission (EHRC), for which the document was reportedly originally intended. 

Second, because it seemed to expose evidence of 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 Corbyn.

Keir Starmer and Angela Rayner swiftly and correctly responded to the outrage, saying, “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.”

They went onto say that the investigation will look into three key areas: “The background and circumstances in which the report was commissioned and the process involved…The contents and wider culture and practices referred to in the report…[and] the circumstances in which the report was put into the public domain”.

The investigation.

Many of us took comfort in the promise of a truly independent investigation, assuming it would provide a balanced and transparent examination, untainted by political manipulation following the recent change in leadership. It would be a chance to disprove the conspiracy theories – or prove them once and for all – to clean house and reset the party under its new leader.

The proposed investigation, however, fails on all these counts.

Labour’s National Executive Committee has appointed barrister Martin Forde QC to lead, with the support of three Labour peers. Terms of reference have been disclosed, which appear to demonstrate some fundamental failings on the part of the leadership to put a robust process in place. 

The nature of these flaws is such as to fatally undermine any claim the inquiry can make to independence, tainting its activities and conclusions before it even starts.

First, the panel consists of three Labour peers. This irredeemably compromises any claim to independence.

Second, It is to be led by a legal figure, who, though distinguished in his field, appears to have no material experience of conducting exercises of this kind.

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 focus for the investigation which centres on alleged racism, sexism and discrimination. Moreover, they leave the scope of the inquiry to the discretion of Labour peers, which is obviously unacceptable.

Puzzlingly, commentators on the left currently appear to be ignoring most of these key failings.

The presence of Labour peers. 

The issue is not, as widely discussed  on leftist blogs and social media, solely about the identity of the chosen lords. The deeper, overarching issue with the investigation 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. 

The investigation 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, which 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 investigate this matter openly and fully – this is not the way to do it. If Starmer is to fulfil his promise of an independent inquiry,  this is not the way to do it.

The Chair.

Forde’s appointment does not inspire confidence. He is without doubt a distinguished and accomplished lawyer. However, his chambers CV suggests little which would make him the obvious choice to front a major investigation like this one.

His practice is principally as a defending barrister, predominantly in the field of medical law. He has significant experience in defending doctors in disciplinary hearings, but not in leading inquiries of this nature.  

London has no shortage of legal personnel amply qualified and experienced to run this process, making the logic of his appointment difficult to justify.

The Terms of Reference.

An analysis of the investigation’s terms of reference shows them to be flawed and narrow, leaving open the possibility that key issues will remain uninvestigated.

The terms describe the aim of the investigation as:

“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 actually operates to close-down investigation. 

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, MPs and their campaign teams, or senior former 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 the level of culpability of those involved.

Were they using ‘loose talk’ but essentially doing their jobs? Were they among the few ‘bad apples’ in the party that needed rooting out? Or, were they in fact, as suspected by some, part of a broader conspiracy, which could have included MPs and lords – or at least have drawn sympathy from such high ranking individuals (this being in the wake of, and consistent with, the toxic culture of the so-called Chicken Coup against Corbyn)?

Any consideration of this vital 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 must be called into question. 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?

We must also ask whether the 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.

Given the involvement of Forde with the Windrush compensation scheme, it seems not unreasonable to suppose that race and discrimination will be a key focus. The terms of reference are clearly intended to guide him in that direction.

But 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 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 antisemitic behaviour by the Corbyn team, or any desire to cover it up?

It will be very easy for an inquiry like this to find there was no racist, sexist, or discriminatory intent, to slap wrists for 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 – which crucially, includes three wholly non-independent Labour peers – not to consider any of those issues at all.

Combined with other issues – such as a potentially constrained time frame and budget, and a lack of power to compel the delivery of witnesses and evidence (none of these details have yet been disclosed to my knowledge), this will seriously diminish the investigation. 

As it stands, the inquiry is fatally flawed before it begins, unless the structure is radically changed.

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 issues of sexism or racism, if this process becomes simply a discussion about people being nasty to, or about, staff, MPs and party members, the whole investigation will be worth little, go nowhere and ultimately 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.

Nick Fitzpatrick is a senior lawyer with significant experience of working on inquiries.