Caving in to the ‘anti-Semitism’ falsehoods is Labour’s contribution to the ‘post-truth society’, writes Mike Macnair
Iain McNicol: offence, not history, please
On Tuesday April 4 Labour’s national constitutional committee (NCC) suspended Ken Livingstone for another year - after postponing its decision from Friday March 31. The immediate reaction of the media and their friends in the Labour right has been to denounce the sanction as insufficient.1 This is news management, whose purpose was to drown out criticism of the charges themselves - which was offered, for example, by a group of Jewish Labour Party members.2
Surprise, surprise - Corbyn immediately caved in to this news management and announced that Livingstone’s responses to the decision can be the ground for a “further investigation”.3
It is important to be clear about the nature of the charges. Livingstone was accused with breaking the catch-all rule 2.1.8, that “no member of the party shall engage in conduct which in the opinion of the NEC is prejudicial, or in any act which in the opinion of the NEC is grossly detrimental to the party”. Translated into slightly plainer English, this rule means that the NEC can retrospectively penalise any conduct whatever, on the basis of its own opinion alone.
In fact, the rule as published in Labour’s 2016 rule book is a bit narrower. To quote it in full:
No member of the party shall engage in conduct which in the opinion of the NEC is prejudicial, or in any act which in the opinion of the NEC is grossly detrimental to the party.
Any dispute as to whether a member is in breach of the provisions of this sub-clause shall be determined by the NCC in accordance with chapter 1, clause IX above and the disciplinary rules and guidelines in chapter 6 below.
Where appropriate, the NCC shall have regard to involvement in financial support for the organisation and/or the activities of any organisation declared ineligible for affiliation to the party under chapter 1.II.5 or 3.C above; or to the candidature of the members in opposition to an officially endorsed Labour Party candidate or the support for such candidature.
The NCC shall not have regard to the mere holding or expression of beliefs and opinions.
At first sight, the last sentence should bar the proceedings against Livingstone. But, of course, although “mere holding or expression” can have a wide sense of meaning, it can also be given a narrow sense - if the expression of opinions causes distress, offence or other problems, perhaps it is no longer “mere holding or expression”. This narrow sense is the one the NCC has adopted.
The detail of the charges as introduced was given in a February 2016 letter from Labour general secretary Iain McNicol to Livingstone.4 They are three. First, Livingstone defended Naz Shah and downplayed the offensive and “anti-Semitic” character of her social media posts, which “is likely to prejudice the party by causing dismay among the Jewish community and indeed Labour supporters and members more generally”. Second, Livingstone asserted in media interviews that Hitler at the outset of his regime supported Zionism: ie, advocated removal of German Jews to Israel; and further, he attempted to justify this view on grounds of historical accuracy, which was likely “deeply to offend the Jewish community”. Third, Livingstone refused to apologise for the second alleged item, and this again was “likely to deeply offend the Jewish community”.
McNicol explicitly claims that the truth or otherwise of Livingstone’s statements about the early Nazi regime and the Zionists is immaterial to the charges (though he makes a protestation in a footnote that they are untrue). The disciplinary proceedings are, therefore, to be judged on the supposition that they are true. The logic of ‘convicting’ Livingstone is therefore that true statements are to be suppressed if they are likely to “offend” a particular “community”. The underlying formal ground for suppressing such comments is then, completely clearly, ‘safe spaces’ and ‘political correctness’.
Moreover, it is not merely that you may not tell truth; according to McNicol and the NCC, and their media cheer-leaders: there is a positive duty to lie where not to tell lies would “offend the Jewish community”.
It is an instance of the remarkable hypocrisy of the mass media that the campaign against Livingstone and against ‘anti-Semitism’ in the Labour Party - justified on ‘offence’ grounds - is being conducted at the same time and in parallel with a Tory and media campaign for ‘free speech on campus’ directed against student ‘safe spaces’ and ‘political correctness’.5
It should be perfectly clear from this set of double standards that ‘free speech’ for these journos means that they and their proprietors, and their proprietors’ political allies, should have freedom of speech - and that no-one else should.
In reality, of course, the Labour bureaucrats who have suspended Livingstone are not actually doing so on the basis of ‘safe spaces’ arguments. Rather, they are merely kowtowing to media opinion on the issue. For the Labour right this is for political purposes shared with the media - reasons which are worth looking at a little more below. For the Labourite left and centre it is an illustration of their seemingly endless belief that canny ‘media management’ can enable Labour to ‘reach the voters’ round economic issues by backing down or dodging the substance of the media’s attacks on other issues.
Parts of the left are, of course, onside with this witch-hunt - the Alliance for Workers’ Liberty ought more properly to be called the Alliance for Foreign Office Liberty. One of its interventions in the March 11 Grassroots Momentum conference was to speak against ... committing the network to opposition to the witch-hunt.
No surprise here, since the AFOL has been committed to ‘anti-Zionism = anti-Semitism’ since this idea was a peculiar aspect of Zionist campaigning in the 1980s, before it obtained any wider public credibility. Its backing for intervention in Libya in 2011 showed that what is decisive in its policy is not - contrary to much of the AWL’s writing - opposition to Islamist reaction (which the intervention supported), but support for the British state.
Owen Jones has also taken the opportunity to get his two-penn’orth in.6 Again, not a complete novelty: Jones had written along similar lines in August 2015 and March 2016, no doubt by virtue of his standing as a well-known ‘left’ helping to encourage witch-hunt.7
It is unclear whether this is a matter of long-held personal convictions, or if it is a rite of passage into full acceptance in the journo-tribe to join in one of their two-minute-hate operations. If so, this would be another form of ‘positive duty to lie’, of a sort which certainly exists among the journos - just as all the economics editors were obliged to ‘repeat after me’ the lie that Gordon Brown ‘spent all the money’, and so on.
Why, then, is Livingstone merely suspended and not - as the media and its allies are loudly demanding - expelled? The answer offered by the NCC is Livingstone’s “long services to the party”; but this can be no more than a pretext, given that the man was expelled from the party in 2000 for running against Labour in the London mayoral election, and only readmitted later.
The answer may raise issues which can be most conveniently described by the ambiguous expression, ‘litigation risk’. Livingstone had threatened before the decision that, if he was expelled, he would sue.8 Now that the decision has come down as a suspension, while he has reasserted that the process did not give him procedural ‘natural justice’, he is saying merely that he will build a campaign to lift the suspension.9 Litigation so far seems to have been avoided.
The ‘litigation risk’ is a combination of things: the risk oflosing litigation; the possible costs, even if the litigation is won, including the (potentially very extensive) costs in management time dealing with the lawyers, preparing evidence, and so on; and the potential reputational damage to the party of the levels of detail about the dispute that may come out in court. Thus, for a single example, the ‘McLibel’ case in 1987-97 was a pyrrhic victory for McDonalds, whose reputation suffered in spite of the damages it was awarded in court.10
We cannot, of course, form any useful assessment of the likely costs; though Tom Spiller of City law firm Rosenblatt reports that the Foster litigation about whether Corbyn would automatically be on the Labour leadership ballot in 2016 cost “several hundred thousand pounds”.11
The risk of loss arises because the case for a narrow interpretation of the phrase, “the mere holding or expression of beliefs and opinions”, is seriously weak in legal terms. It is, to be blunt, flatly contrary to the freedom of expression case-law of the Strasbourg European Court of Human Rights under article 10 of the European Convention.
Now, of course, the Labour Party is not a public authority, so that it is not bound by the convention as such. But a court in deciding a hypothetical case about an equally hypothetical expulsion of Ken Livingstone would inevitably ask what the Labour Party’s members are to be taken to have intended in adopting the rule including this final sentence. And the answer could very probably be that they intended to limit the reach of a rule, which is, in its terms, extremely broad; and that they intended to preserve freedom of opinion and expression in broad terms.
In support of this view, on March 27 the lobby group, Free Speech on Israel, launched at a meeting at parliament an opinion of counsel which they had obtained from Hugh Tomlinson QC on the International Holocaust Remembrance Alliance (IHRA) non-legally binding ‘working definition of anti-Semitism’ and the legal effect (if any) of the British government’s decision to adopt this ‘definition’.12
Tomlinson rightly points out that the adoption has no legal effect and cannot modify the duties of public authorities under the European Convention article 10, or the more specific duties to promote free speech at universities and other higher education institutions under the Education Act 1986. Moreover, the definition itself is vague and indeterminate, and its adoption by public authorities would for this reason risk involving them in breaches of their legal duties.
Tomlinson’s opinion is rightly carefully cautious on the legalities. But at the launch meeting retired court of appeal judge Sir Stephen Sedley was considerably sharper on the issues.13 There is, in short, a respectable body of legal opinion under which it would be hard to justify the charges against Livingstone.
That said, the actual risk of loss is probably quite limited. This is because - as Sedley said on March 27 - the policy of equating anti-Zionism with anti-Semitism is an actual policy of her majesty’s government. It is also one which (Sedley did not say) is probably connected to foreign policy choices. The witch-hunt against Livingstone is a part of this policy. And it is extraordinarily rare for the courts to reach decisions in litigation which will seriously interfere with the policy choices of Conservative governments. The court would therefore probably find some contorted means of ignoring the final sentence of rule 2.1.8 - by way of the sort of ‘deference to the party’s internal judgments’ arguments which were used in the 2016 litigation.
The reputational risk, however, is very substantial indeed. The judge who handled the case at ‘trial’ level would in the first place be faced with a choice between obviously denying Livingstone his ‘day in court’ and permitting his counsel to explore to some extent the extent to which the disciplinary process followed ‘natural justice’ and the substantive strength of the case against him. It is unlikely that the judge would be willing to take the first course, which would be to sacrifice his own reputation on the altar of short-term government and media convenience.
But once Livingstone’s counsel was permitted to address these issues, it would inevitably become clear to a public audience of the proceedings that the NCC’s decision (again, hypothetically) to expel Livingstone rested on a concept of free speech so narrow as to display contempt for the very idea: that Livingstone was being expelled for making true statements about matters of history.
It would, of course, be possible for the Labour Party to respond by setting up McNicol’s protestation in the footnote that the truth of Livingstone’s claims is denied. But this would be a worse choice, because it would risk setting the Labour Party up for a case like Irving v Penguin Books & Lipstadt (2000), in which, after massive expense, Irving was found to be a holocaust denier14 - with the symmetrical result that Livingstone’s claims were contested, but found to be substantially (even if not precisely) true.
It makes sense, therefore, for the party bureaucracy to try to avoid litigating this issue. And in any case, from the point of view of the conduct of the witch-hunt around the issue, keeping Ken Livingstone suspended works just as well as actually expelling him: it keeps the issue live, without bringing it to a point at which it can actually be directly contested.
Never letting the lies actually be tested, constantly reasserting them, creating a positive duty to lie. This infernal machinery is the Labour Party’s and the media’s own contribution to the ‘post-truth’ society.
1. Eg, ‘Labour ruling “fails Jewish community”, says chief rabbi’ BBC News April 5; ‘Pressure mounts on Labour to review Ken Livingstone decision’ The Guardian April 5; D Sugarman, ‘The Jewish community will not soon forget Labour’s obscene decision on Ken Livingstone’ The Daily Telegraph April 5; and many others ...
3. ‘Ken Livingstone: Jeremy Corbyn announces new investigation’ BBC News April 5.
5. Eg, ‘Jo Johnson says universities will be compelled to protect free speech under new government plans’ Huffington Post March 21; also at Hansard March 20: https://hansard.parliament.uk/commons/2017-03-20/debates/5B2B73EC-BCF3-4010-972C-D4BAD4E22CED/FreedomOfSpeechStudentCampuses; ‘Government may force universities to uphold free speech’ Catholic Herald March 27; ‘Cowardly university academics undermine free speech’ Grassroots Conservatives March 30; ‘University student tries to set up men’s rights group and is banned by student union’ Daily Express March 30; and so on and tediously on ...
6. ‘Owen Jones condemns anti-Semitism and Netanyahu at Jewish Labour lecture’ Jewish News Online April 2.
7. ‘Anti-Semitism has no place on the left. It is time to confront it’ The Guardian August 26 2015; ‘Anti-Semitism is a poison - the left must take leadership against it’ The Guardian March 15 2016.
8. ‘Ken Livingstone in threat to Labour over Hitler remarks row’ Evening Standard March 31.
9. http://kenlivingstone.net/2017/04/ken-statement-extension-suspension (April 4).
10. Convenient summary at Wikipedia: https://en.wikipedia.org/wiki/McLibel_case.