A partial response from the EHRC
In writing the following I want to make it clear from the very start that I have no issue with the Equality and Human Rights Commission (EHRC) carrying out an investigation into alleged anti-Semitism in the Labour Party They received complaints and they have the legal discretion to investigate them. What I am concerned with is whether such an investigation could be ’weaponised.’ In the context of our current state of politics and rabid tabloid media an investigation in itself suggests that there cannot be smoke with out fire, and in the billionaire-owned media’s hands, guilt on the part of the accused is an automatic assumption. Hillary Clinton, despite her many faults fell prey to the CIA ‘investigation’ into her emails, regardless of the result of that investigation - which more or less exonerated her. So, in the hands of Jeremy Corbyn’s enemies, one might argue that this case, politically was analogous in the way that it was capitalised by his foes.
In this light, I (acting alone) sought to dig deeper into the EHRC’s justification for launching its inquiry. I sent them an email on 6th January asking the following questions, under the FOI Act:
a) Between 1st January 2015 and 31st December 2019, how many complaints about racism has the Commission received for each of the Labour, Conservative and Liberal Democrat Parties, broken down by month and by the form of racism complained of (e.g. anti-Semitism, Islamophobia, etc.)
b) Over the same period, how many complaints about racism has the Commission received about other bodies, public or private, broken down as in (a).
c) Over the same period, how many investigations into allegations of racism (broken down as in (a) above) has the Commission launched regarding other bodies, public or private.
d) The terms of reference of the Commission's investigation into the Labour Party states (Paragraph 8) that the Commission 'may' have regard to the IHRA working definition of anti-Semitism whilst recognising that this definition is not legally binding. Please provide the legal definition of anti-Semitism the Commission WILL use in this investigation whether or not it chooses to use the IHRA non-legally binding definition. I note that this investigation is being carried out by the Commission using its legal powers provided by the 2006 Act.
In asking these questions (a to c), I was trying to flush out what it takes to get the EHRC to launch an inquiry. Admittedly a purely numerical answer would be insufficient, some complaints about racial discrimination could be small in number but egregious in seriousness. But one has to start somewhere. Question (d) was aimed at finding out what the EHRC actually understood to be the legal basis of its definition. The EHRC can only act under the powers it is given by Parliament, and if that means it has a wide latitude, fine—but let’s be clear what that latitude entails for the accused.
On the 23rd January, I received a reply from the EHRC which claimed that my request would be too expensive to comply with. The relevant part of their response said:
Following consideration of your request we have determined that the
Commission will hold information relevant to your request, but the cost of
complying with your request would exceed the £450 / 18 hour limit.
Your email dated 6 January consists of a series of requests with an overarching
theme / common thread running throughout. As such we have aggregated the
costs of complying with these requests as permitted by the Fees Regulations.
We have determined that it will take well in excess of 18 hours to locate,
retrieve and extract the requested information. This is due to the extensive
nature of the searches required. We have outlined below how we have
calculated this estimate.
Section 12 search strategy
Between 1st January 2015 and 31st December 2019, we did not have a
centralised case management system for legal/enforcement work. As such, it
will be necessary to go back to a number of different documents and files to
determine the breakdowns you have requested. For example, with regards
question (b) above, we would need to consider a number of folders, including:
1. Allocations for 2015-2016; 2016-2017; 2017-2018; 2018-2019; and 2019-
2020 (9 months);
2. Pre-allocations for 2015-2016; 2016-2017; 2017-2018; 2018-2019; and
2019-2020 (9 months);
3. Legal requests for 2015-2016; 2016-2017; 2017-2018; 2018-2019; and
2019-2020 (9 months);
4. EASS for 2015-2016; 2016-2017; 2017-2018; 2018-2019; and 2019-2020
5. Notices of commencement for 2015-2016; 2016-2017; 2017-2018; 2018-
2019; and 2019-2020 (9 months); and
6. General correspondence complaints for 2015-2016; 2016-2017; 2017-
2018; 2018-2019; and 2019-2020 (9 months).
We are conscious that in some instances information may not have been
recorded in and we will need to go back to the original case file.
To try to obtain an estimate of locating the information requested, we have
conducted the following sampling exercise:
I. Allocations: In 2018-2019, there were 29 race cases recorded through
Allocations. We estimate that to locate and extract the information will
take 4 minutes per case. Therefore, 29 cases x 4 minutes would take 116
minutes. As you have asked for 5 years’ worth of data, we have calculated
that this could take 580 minutes (116 minutes x 5 years). However, this
is a very conservative estimate as it is likely to be substantially longer for
the years 2015-2016 and 2016-2017 as records were not kept as
thoroughly and we would likely need to go back to the original files.
II. Pre-allocations: In 2018-2019, there were 10 race cases recorded
through Pre-Allocations. Again, it would likely take 4 minutes per case.
Based on a 5 year period, this would amount to 200 minutes ((10 cases x
4 minutes per case) x 5 years). Again, this is a very conservative
estimate as it is likely to be substantially longer for the years 2015-2016
and 2016-2017, as records were not kept as thoroughly and we would
likely need to go back to the original files.
III. Correspondence: From 1st January 2015 to 31st December 2019, there
were 1403 issues returned by the enquiry strand ‘race’, recorded in our
general correspondence tracker. In order to determine whether these
were complaints about race and, if they were, break them down as
requested, it would take approximately 2 minutes per issue. This amounts
to approximately 2806 minutes (46.76 hours).
So, without considering the information from Legal Requests, EASS or Notices
of Commencement (3-5 above), we are already at 3,586 minutes (59.7 hours).
My first reaction to this detailed breakdown of how costly it would be to answer some (in my mind) perfectly simple and reasonable questions is yes, maybe it is a big ask. But on second thoughts, maybe not. The period I am seeking information on is well within the era of computers. It may be noted that in the same period under review (2015 to 2019, with more or less equivalent financial year end periods) the EHRC’s income from the taxpayer was around £76 million. In that context, I am astounded that they do not have systems in place (as they acknowledge in their response above) to simply draw out the information requested at the touch of a button. Presumably they have a system of indexation?
What I find interesting here is that a body with possibly inadequate information systems, which finds it difficult to dig out relatively simple information ('records were not kept . . thoroughly') is now tasked to consider whether another body—the Labour Party—is better equipped to deal with complaints which may need a considerable time to consider. Judge not lest ye be judged may be a suitable working premise.
The observant reader will have noticed that the above answers—which are the complete actual substance of their response to my questions do not even tackle question (d), which is about their actual definition of anti-Semitism. This could be an oversight, but it is possibly a revealing one. I have asked the EHRC again to answer my question, which surely would not require more than five pound’s worth of anybody’s time to answer. The EHRC operates with the authority of law and it should not be acceptable, particularly in controversial circumstances to arbitrarily choose what definitions may or may not apply in its deliberations. I await their answer on that one.
CORRECTION (made 26th January 2020) - it was the FBI not the CIA that investigated Clinton's emails - thanks to a comment on the JVL website for this correction. It doesn't alter my substantive point.