EHRC section on wider political interference
What the EHRC said
Monday, 2nd November 2020
AFTER the publication of the EHRC’s report into the Labour Party’s antisemitism complaints, the Conservatives and the Lib Dems in Camden have called for Labour councillor Thomas Gardiner to step down from the council. He says the report has not found any wrong-doing.
Here is is the main section of the EHRC’s report relating to Cllr Gardiner’s role in the Labour Party’s Government and Legal Unit:
Wider evidence relating to political interference
Several former GLU staff gave evidence that the leadership of the Labour Party had sought to gain political control of antisemitism complaints by ‘installing’ Thomas Gardiner in the GLU.
Thomas Gardiner was an adviser to the Labour Party’s Chair. He was seconded into the General Secretary’s Office (GSO) in April 2018, but not permanently appointed to a formal role in the GLU until June 2018 when he became acting Director of Governance and Legal (DGL).
The GLU is the independent unit that handles complaints within the Party. In light of the evidence we received, we considered whether Thomas Gardiner’s role at this time led to potential interference from outside the GLU in the handling of complaints, or the appearance that this was happening. Such factors could undermine confidence in the complaint handling process and, in particular, its independence.
One former GLU staff member described Thomas Gardiner as LOTO’s ‘trusted person’ in the GLU. Witnesses suggested that he acted as the ‘gatekeeper’ on antisemitism complaints. They said he would liaise with LOTO staff to make decisions on complaints, which rendered GLU staff ‘powerless’ in their jobs.
This account of Thomas Gardiner’s role was challenged by the Labour Party and Thomas Gardiner.
Karie Murphy (then LOTO’s Chief of Staff) told us that Thomas Gardiner was seconded to this role ‘after concerns were raised regarding the function of GLU by the Leader and Chair of the Party’ and that ‘LOTO needed to be provided with regular updates and as previously requested, a comprehensive explanation on the processes’.
Investigation into antisemitism in the Labour Party
As part of his secondment, Thomas Gardiner was given a number of roles in the GSO, including in relation to the Labour Party’s ongoing Democracy Review. However, it was also anticipated that he would assist the GLU; on his arrival GLU staff proposed that one of his responsibilities would be ‘Antisemitism cases, Liaison with LOTO – Disputes’ (continuing a practice that was already in existence by that point).
The Labour Party said that Thomas Gardiner simply provided advice on complaints, as appropriate for a legally qualified person with a governance role in the Party.
Thomas Gardiner told us that he ‘gave most of these views on behalf of GSO’ but ‘decision-making on first-stage investigatory action remained with’ the GLU.
An important email about Thomas Gardiner’s role was dated 13 April 2018, from Karie Murphy, and addressed to Thomas Gardiner (but which does not appear to have been sent to him). This noted that he was ‘acting with the authority of the Chair of the Labour Party’, ‘reporting back to the GSO and LOTO’ and providing ‘political oversight in GLU/Complaints’.
Thomas Gardiner said he was not aware of this email until it was later leaked to the press in 2019, and that Karie Murphy was referring to his responsibility to report back to the GSO and LOTO ‘so as to ensure [the disciplinary processes were] fit for purpose’. The Labour Party suggested that the phrase ‘political oversight’ referred to his role in supervising the whole complaints system, not particular complaints.
Our findings on political interference in antisemitism complaint handling
We agree that the leadership of a political party has a legitimate interest in being made aware of cases of high reputational risk. It may take decisions in this context, for example, on how the leadership will respond to publication of a decision on a complaint. However, it is not legitimate for the leadership to influence, make recommendations, or make decisions on complaints outside of the formal complaints process.
Investigation into antisemitism in the Labour Party
In its original evidence to the investigation (later clarified as we explain above), the Labour Party referred to the leadership’s role of upholding the Party’s constitution and rules as justification for its involvement in complaints. We consider that this role requires the leadership to adhere carefully to the Party’s formal complaints procedure, and to be seen to do so, rather than permitting it to interfere in decisions about individual complaints.
We agree that the Labour Party rules give the leader certain responsibilities for enforcing the Party’s constitution. Those do not give the leader a specific role in handling or dealing with individual complaints, but do provide responsibility for matters of governance.
Accordingly, it is within the Leader’s role to consider, for example, the effectiveness of the complaints handling system and its processes. Likewise, obtaining information and statistics on how those processes operate would be appropriate.
We welcome the Party’s acceptance, in its representations, that the leadership must have no role in determining disciplinary outcomes.
We agree that the leadership and the Chief Whip have a role in matters relating to the conduct of MPs. However, neither LOTO nor the Chief Whip has the power to suspend or expel an individual from the Party: that power is reserved to the NEC and National Constitutional Committee (NCC), based on work done, in practice, by the GLU. It is therefore not legitimate for LOTO to interfere in the handling of a complaint against an MP that has been made under the Party rules.
The Labour Party has, on its own account, applied a different, unpublished process to ‘politically sensitive’ cases – a subjective term which is not likely to be capable of consistent definition. In any event, this process has not been applied consistently. In the complaint sample, we saw evidence that political interference by LOTO happened in cases that could not be described as politically sensitive and did not involve MPs or NEC members.
In summary, we find that LOTO’s involvement in individual antisemitism complaints was not within the Labour Party’s complaints process, and was therefore not a legitimate approach to determining complaints. The process has resulted in a lack of transparency and consistency in the complaints process. It has created a serious risk of actual or perceived discriminatory treatment in particular complaints. It has also fundamentally undermined public confidence in the complaints process.
Investigation into antisemitism in the Labour Party
It is essential that everyone involved in the complaints process follows a clear published procedure. We recognise the Labour Party’s right to determine its own procedure, subject to the need for it to reflect the limits on the legitimate role to be played by the leader in the complaints process.
In this context, we welcome the Labour Party’s statement, in its recent representations, that it is developing a governance protocol, which will ensure that the Leader is not involved in deciding the outcome of any complaints, and that such ‘guidance will need to be set out in the publicly accessible complaints process’.
In respect of the role of Thomas Gardiner, we make no findings as to the motivations behind his secondment, however:
• His role was expected to include liaison with LOTO on antisemitism cases, which facilitated the interference of LOTO that we have described above.
• He was working on complaints as a secondee to the GSO, not the GLU, and gave his views on some antisemitism complaints ‘on behalf of GSO’. The GLU is the independent body that handles complaints within the Labour Party, and there is evidence that the GLU considered opinions from the GSO to be ‘outside views’ on disciplinary cases. This arrangement led to potential interference from outside the GLU in the handling of complaints, or the appearance that this was happening.
• Contrary to the Labour Party’s submissions, evidence from our complaint sample suggests that Thomas Gardiner did take a decision-making, rather than purely advisory, role in some antisemitism complaints, while he was a seconded to the GSO, and before he had a permanent role in the GLU.
In one case, he reviewed antisemitic social media posts and indicated that the member should simply be given a Reminder of Conduct. On being given more information, he decided that the member should be investigated but not suspended.
The tone of the email exchanges makes it clear that the GLU staff considered that Thomas Gardiner had the decision-making power and not them. In another case, he suggested that a complainant should be investigated. The Head of Complaints disagreed, but said ‘[o]bviously, it is your [Thomas Gardiner’s] call’ (although it appears that the complainant was never actually investigated).
Investigation into antisemitism in the Labour Party
• Whatever the exact meaning of the phrase ‘political oversight’ in the 13 April 2018 email referred to above, the evidence shows that Thomas Gardiner carried out functions within the complaint handling process and reported on that process to the Party’s political organs (the GSO, Party Chair and LOTO).
• The combination of these issues means that we understand why some people perceived Thomas Gardiner to have been ‘installed’ in the GLU by the Party’s senior leadership for political reasons, whether or not that was the case.
• These factors undermined confidence in the complaint handling process and, in particular, its independence.
