Independence Day

There have been many voices, from all sides, calling for an independent complaints and disciplinary procedure for the Labour Party. Superficially this seems an attractive proposal, but it is not straightforward to design or to implement.

And, of course, it doesn’t escort the elephant in the room back to its wildlife reserve.

That means probably the biggest problem is still left unaddressed – alterations to the systems and procedures may be necessary, but that will deal with the symptoms alone.

Labour can have the most efficient and effective procedures for dealing with individual antisemites, yet, whilst the system may be removing antisemites one at a time, the Party is holding open the double doors at the front with a big welcome sign. The Labour Party can introduce an independent system to deal with cases, but the Labour Party cannot abrogate its own duty to police its own borders. That takes political will, political leadership.

Should Labour’s Complaints Procedures be Independent?

My view is that we are a political party. We will get all sorts of complaints. We should deal with them. But I’m afraid that ship has sailed.

Despite the efforts of the staff over the last few years, the complaints procedure has become thoroughly discredited. It is open to political interference – from my point of view hardly surprising in a political party; there is no easy or robust way of dealing with people who clearly do not share Labour values; and conflicting messages from the Leader’s Office (LOTO); the National Executive Committee (NEC); individual members of the NEC; and individual politicians mean our values are muddied and the procedures for upholding them weakened.

It is likely that Labour will be forced to support some form of independent procedure, although there is a rear-guard action from LOTO, most notably at yesterday’s meeting of the Shadow Cabinet, to simply give more powers to the NEC. This, unsurprisingly given the current level of competence in Corbyn’s office, is wrong-headed and will probably lead to more civil action by those challenging disciplinary decisions. As Thomas Quinn of the London School of Economics and Political Science explains (Organisational Reform in The British Labour Party Since 1983. pub 2014.):

The National Constitutional Committee (NCC) was formed after Kinnock’s battle with the ultra-left Militant Tendency in the mid-1980s, sitting for the first time in February 1987. The need for it arose after a legal ruling that the NEC had violated natural justice by acting as prosecutor, judge and jury against party members who were accused of belonging to Militant and who thus faced expulsion from the party.

The NCC was intended to take over the judicial function while the NEC would retain its role as ‘prosecutor’. Despite its title, however, the NCC did not have control over the interpretation of Labour’s constitution, which remained with the NEC. Instead, it would play a narrow role in disciplinary matters, though even then this would relate mainly to individuals.

The NEC retained control over disciplining affiliates and CLPs, which was considered essential for the purpose of party management. 

Thomas Quinn

So, if we are to proceed with an independent system for dealing with complaints, how could that be imagined?

Let’s start from where we are, rather than where some people think we are. The current procedures have grown like Topsy. Custom and practice has added to the complexity. We give an extraordinary amount of time to compiling and prosecuting a single disciplinary case.

Antisemitism has the focus currently, but effectively all disciplinary cases have a political aspect. Bringing the Party into disrepute, unless it’s in respect of a simple criminal activity, is likely to be a decision based on politics. This is actually codified, given that the rulebook refers to “in the opinion of the NEC”.

But if you strip away all that complexity, it’s more straightforward.

  • A Constituency Labour Party (CLP) can prosecute a case for a breach of rule to the NCC. (It can’t, however, determine that a member should be expelled by simple resolution. The recent Hilary Armstrong case was poorly reported in this regard. Any such resolution by the CLP to expel Armstrong would have been ultra vires.)
  • The General Secretary can prosecute a case to the NCC.
  • The NEC can prosecute a case to the NCC.
  • The General Secretary (usually) or the NEC can determine whether there has been a breach of a limited number of rules which require auto-exclusion.
  • Importantly, but rarely if ever used, where there is no dispute about bringing the Party into disrepute, a member could be excluded by the NEC without reference to the NCC.
  • There is no role for the Leader nor for the General Secretary, save for those shown above, but one would expect both to be kept informed of significant or sensitive disciplinary cases.

How is the Current System Working?

It is believed by many Party members, Labour politicians and stakeholders,  and commentators that the system is broken in a number of areas:

  • In respect of antisemitism, it is argued there is a deliberate attempt to present a different definition than is presented by the IHRA definition adopted by the Party.
  • There is factional interference in the disciplinary process at all points within the process.
  • The NCC is no longer an independent judge and jury. The factionalism surrounding the recent elections to the NCC demonstrates this beyond doubt.
  • There is deliberate interference by the Leader’s office in the disciplinary process.

In addition, there are two other areas which don’t help.

  • There is no satisfactory mechanism for reviewing a person’s membership when new information comes to light after their eight-week probationary period.
  • The NCC can’t take into account offences committed prior to membership.

Can we make it better?

We can make it different. There is a danger that, unless proper consideration is given to proposals, we can also make it worse. Rushing to a half-cocked solution may seem like we’re getting somewhere, but we’ll have to do it all again in the months to come.

In the first serious attempt to look for a solution, Tom Watson et al have proposed the following:

The NEC therefore resolves to bring forward rule changes to this year’s conference that:

– automatically excludes a member from the party where there is irrefutable evidence of racism, sexism, misogyny, homophobia or transphobia.

– establishes an independent process to deal with disciplinary matters involving all forms of racism, sexism, misogyny, homophobia or transphobia. This is also to include the process for overseeing auto exclusion of members and any subsequent member appeals. We will invite the Bar Council, or another appropriate body, to appoint a person wholly independent from the Labour Party to devise the detail of this scheme, consult with Jewish and other communities and report back to the NEC.

Proposal submitted to the Labour Party NEC

This is clearly a good starting point. It at least identifies the problem and sets out a partial route map to an independent process. However, it is problematic in a number of areas, these being the critical ones:

  • There is scarcely time to bring forward fully formed rule changes if there is going to be independent oversight of drawing up the proposals. There should be transparent scrutiny of the proposals and stakeholders consulted. And staff and lawyers with a knowledge of the rule book should have the responsibility for drafting the actual text which may have to stand up in court.
  • I’m afraid that simply Inviting the Bar Council or other body to do it for us may be subject to some ridicule after the Chakrabarti experience.
  • A particularly difficult part of the proposal above is that it separates out some of the disrepute charges to an Independent Body, but not all of them. In my view, it has to be all (or nothing, but as I said earlier that ship has sailed). There seems to be no valid reason for not including all the protected characteristics, which is presumably the starting point. However, there is no mention of age, disability, marital status or pregnancy. Even the Labour Party rules are more comprehensive:
    The NEC and NCC shall take account of any codes of conduct currently in force and shall regard any incident which in their view might reasonably be seen to demonstrate hostility or prejudice based on age; disability; gender reassignment or identity; marriage and civil partnership; pregnancy and maternity; race; religion or belief; sex; or sexual orientation as conduct prejudicial to the Party:
  • It also introduces the concept of appeals against auto-exclusions.
    No. Just no. Auto-exclusions are for a clear breach of the rule in question: You’re a member of another Party; you signed the nomination papers of a Tory candidate; you are deliberately not paying the correct membership subscription and so on. If there is a dispute, there is recourse to courts. If there is an error – the wrong person identified for exclusion, or some other factual error – then administrative corrections can be made as they have in the past (and as they should be in the Alastair Campbell case).

But what the Watson resolution does helpfully do is to bring front and centre some of the problems. What could be considered by an independent process? And what should still be determined by the General Secretary or the NEC? Is there any role for the NCC? If we end up with an independent process for sexual harassment cases, would this be the same route or different? And so on.

In my view, these are the key assumptions which could make an independent process work.

  • All allegations of bringing the Party into disrepute are dealt with by the independent process.
  • All allegations of breaching auto-exclusion are dealt with, as currently, by the General Secretary (delegated always to the Governance and Legal Unit – GLU).
  • All allegations of other breaches of rule are dealt with by the General Secretary, as currently (delegated always to the GLU). Where such a breach is investigated, and a prima facie case established, GLU may determine a punishment within its competence or refer to the NEC for consideration. Where the NEC believes the punishment available to GLU is insufficient, the case is referred to the NCC for determination.
  • Where a member is alleged to have breached rules, which would require both internal and external routes, then the external independent route would take precedence.
  • If a CLP wishes to bring a charge of disrepute against one of its members, it will be processed through the independent route.
  • All other disputes – selections, meetings, general uncomradely behaviour, etc. – would be dealt with the usual, current, internal routes.

This could be simply stated as any complaints which are outward-facing are dealt with by the independent external body; those which are inward-facing are dealt with through existing procedures.

The key decision points for the external Independent Body would then be something like this:

  • All complaints, including complaints by CLPs, must come in to the Labour Party.
  • Complaints will be sorted into Internal and External by GLU. The external body will be notified of all internal cases to ensure none are incorrectly allocated.
  • The General Secretary will notify appropriate stakeholders of significant or sensitive cases (internal and external). The Independent Body will be copied in to any such notifications for the cases it is handling.
  • The Independent Body will normally commission GLU to undertake any investigations that may be required, including by regional staff or others. The Independent Body will determine the timescales for investigations and case determination. Care would have to be taken that the Independent Body doesn’t become prosecutor as well as judge, but where required it should have the some of the role of an examining magistrate in ensuring that obvious evidence on either side of the argument is not overlooked.
  • A standardized system will be established by the Independent Body so that monitoring of caseload and decisions can be constantly and consistently reviewed to the level of detail for the needs of the different stakeholders.

Even if we are able to flesh out the enormous amount of detail to make this process a possibility, there is are still more big questions to be answered. Among which:

  • Who appoints the Independent Body? (The NEC – but how do you stop factionalism in the selection process?)
  • How much money is going to be invested in the Independent Body? Presumably at least in part by reducing the GLU budget and staffing which no doubt will go down like a bucket of cold sick with staff who are already under pressure.

Where Next?

As a starting point, I think the Watson proposal, now that it apparently has the support of the Equalities Committee, should be amended to say something like this.

The NEC therefore resolves to bring forward rule changes to this year’s conference that:

– clarifies the ability of the NEC under Chapter 2, Clause I.9 to auto-exclude members for an undisputed breach of Chapter 2, Clause I.8;

– clarifies the procedures for all auto-exclusions;

– establishes an independent process to deal with all disciplinary matters under Chapter 2, Clause I.8 including all forms of racism, sexism, misogyny, homophobia or transphobia; and

– introduces a sunset clause to allow consequential alterations to the rules between conferences as a result of detailed proposals to be introduced.

It further resolves to establish an implementation working group to consider detailed procedures. This working group:

– will have an Independent Chair appointed by the NEC;

– the Chair will appoint other members of the working group, in consultation with the General Secretary;

– will consult with Labour stakeholders, the Jewish community and other communities; and

– report detailed proposals to the NEC for adoption.

Suggested amendment to the proposal to the NEC

That would give more overarching terms of reference and, critically, the time needed to do it right. We’ve got this wrong for too long. We should take a little longer to put it right.


 

Extracts from the rulebook 2019

For those interested in the current disciplinary process and powers of the NEC, these are some extracts from the rules. You can download a full copy of the rulebook from the Labour Party.

Powers of the NEC

Chapter 1, Clause VIII.3

to uphold and enforce the constitution, rules and standing orders of the Party and to take any action it deems necessary for such purpose, including disaffiliation, disbanding, suspending or otherwise disciplining any affiliated organisation or Party unit; in furtherance of such duties it shall have the power to suspend or take other administrative action against individual members of the Party subject to the provisions of the disciplinary rules set out in Chapter 6 of these rules.

Powers of the NCC

Chapter 1, Clause IX.2

A. to determine by hearing or otherwise such disciplinary matters as are presented to it by CLPs in accordance with the provisions contained in the disciplinary rules (Chapter 6).

B. to determine by hearing or otherwise such disciplinary matters as are presented to it by the officers of the Party on the instructions of the NEC

Chapter 1, Clause IX.4

The NCC or any panel thereof in hearing and determining charges against an individual shall follow such procedure as it considers appropriate to ensure that the charges are determined without undue delay and in a manner that is fair to both the individual and the Party…

Membership Rules

Chapter 2, Clause I.8

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. The NEC and NCC shall take account of any codes of conduct currently in force and shall regard any incident which in their view might reasonably be seen to demonstrate hostility or prejudice based on age; disability; gender reassignment or identity; marriage and civil partnership; pregnancy and maternity; race; religion or belief; sex; or sexual orientation as conduct prejudicial to the Party:

these shall include but not be limited to incidents involving racism, antisemitism, Islamophobia or otherwise racist language, sentiments, stereotypes or actions, sexual harassment, bullying or any form of intimidation towards another person on the basis of a protected characteristic as determined by the NEC, wherever it occurs, as conduct prejudicial to the Party. The disclosure of confidential information relating to the Party or to any other member, unless the disclosure is duly authorised or made pursuant to a legal obligation, shall also be considered conduct prejudicial to the Party.

Chapter 2, Clause I.9

Any dispute as to whether a member is in breach of the provisions of sub-clause 8 shall be determined by the NCC.

I am Spartacus

On 20 May 2019 I released short statement on Twitter:

I won’t support ‘a political organisation other than an official Labour group or other unit of the Party’ nor will I support ‘any candidate against an official Labour candidate’ but I’ve returned my EU election PV and for the first time in 46 years I’ve not voted Labour.

20 May 2019, shortly before EU polling day

I chose that formulation of words with care. I knew many thousands of Labour members would be considering lending their votes to another Party in protest at Labour’s continued ambiguity on Brexit. I wanted to make it clear that voting was a private matter, and that by itself could not be in contravention of the Labour Party rules. Blindingly obvious really. To constrain a person’s vote by offering or refusing some benefit, in this case membership of the Labour Party, is a breach of the Representation of the People Act and subsequent legislation. (Although someone did suggest to me that “membership of the Party isn’t a benefit, it’s just bloody hard work.”)

Apart from the legal wrangle over whether or not demanding a vote in return for membership of a political organisation is or is not illegal, there are there practical problems of evidence and enforcement. Of course, you could introduce some sort of loyalty pledge – I promise to vote Labour at every election in which I am an eligible voter – in which case vote swapping, tactical voting or whatever all go underground. Only exposed when the Labour vote falls below the number of Labour members in an area. Frighteningly, this may soon no longer be a joke.

The only thing one can say with any certainty is whether a person voted at all. Although votes may be inspected by order of the High Court (in exceptional circumstances, usually when investigating electoral fraud) to identify which way an individual voted, the vote itself is, to all intents and purposes, secret. But whether or not each individual cast a vote is open to public inspection and all political parties access this data on a regular basis to inform their election campaign planning. It would be a simple matter to check whether any or all members of a political party had voted. And it could be argued that failing to vote gave support to other parties or candidates.

Now we are at the nub of the issue.

On Tuesday 28 May, Alistair Campbell received an email telling him he had been auto-excluded from the Labour Party for saying (after the polls closed) that he had voted Liberal Democrat in the European Elections.

The accompanying statement form the Labour Party read as follows:

Support for another political party or candidate is incompatible with party membership.

As the sky started to fall in on the Labour Party, the Labour Party Press Team, directed by Seumas Milne, took to the social media airwaves to issue a panicked clarification:

To be absolutely clear, the way Labour Party members vote is a private matter. But publicly declaring or encouraging support for another candidate or party is against the rules and is incompatible with Party membership.

3:06 PM – 28 May 2019

And at that point any residual case the Labour Party had for justifying the auto-exclusion of Alistair Campbell collapsed. If the way a person voted does not, cannot, be in breach of party rules then we come simply to the more normal use of the words in the rule book.

The relevant section of the current rule book says:

A member of the Party who joins and/or supports a political organisation other than an official Labour group or other unit of the Party, or supports any candidate who stands against an official Labour candidate, or publicly declares their intent to stand against a Labour candidate, shall automatically be ineligible to be or remain a Party member.

Rule 2.1.4.B – Labour Party Rulebook

Given that the Labour Party has itself now ruled out voting against Labour as a reason for expulsion how has Campbell breached the rule above? And the simple and obvious answer is that he hasn’t. It is not possible to support another candidate (the essential allegation) after the polls have closed.

Let’s briefly contrast this with the case of Andrew Fisher, now a senior political advisor to the Leader of the Opposition. In November 2015 he was suspended following complaints that he had called for support for another candidate. Referencing an article written by Emily Benn, the Labour candidate for Croydon South, Fisher said:

If you live in Croydon South, vote with dignity, vote Class War.

Andrew Fisher

The Leader’s office ensured (without intervening, you understand, because apparently they never do) that Fisher’s offence was considered under the more subjective rule about ‘bringing the Party into disrepute’. This allowed the disciplinary process to be concluded with no case to answer save a smack on the wrist rather than the inevitable expulsion that would have followed otherwise. Mates’ rates in the rule book.

So why has Labour allowed itself to get into this position? One thing is certain. This was not a decision taken by an officer of the Governance and Legal Unit on Bank Holiday Monday. This wasn’t a decision about an unknown party member who had stood against an official Labour candidate at some local election. This was about a prominent member of the Labour Party with a significant public profile. This would have been a decision taken at the highest possible level.

It is hard to escape the conclusion that it is either vindictive retribution presumably orchestrated by, or with the full knowledge of, Seumas Milne. Or a deliberate distraction from the earlier announcement on the same day by the EHRC of a statutory investigation into allegations of institutional antisemitism within Labour. Or both. Whatever the reason, the decision has proved to be an unmitigated disaster. Many heavyweights from the Labour Party have condemned the action. Charles Clarke, Harriet Harman and Lord Falconer QC to name but three.

Lord Falconer QC, former Lord Chancellor, who knows something about how the courts interpret the words before them, said:

The rules do not make expulsion mandatory. Support for another political organisation envisages something more than voting for them and only going public after the polls have closed and making clear it was a one off. If voting was enough the rule would have said so.

Lord Falconer QC

And these are not the usual suspects, plotting to undermine Corbyn but senior figures from past and present whose voice should be listened to with some care. There is a long queue of people from across the Labour family who share their concerns.

Even more worrying is the immediate rise of the #ExpelMeToo and #IamSpartacus hashtags as hundreds, maybe thousands by now, of Party members declared that they too had lent their vote to another party. Excluding Campbell may lead some people, many people, to question whether their vote lent to another party will ever be cast for Labour again.

Tom Watson MP, Deputy Leader of the Labour Party has now also echoed the views of many others, and made clear that Labour has made a grave error. He said it is “spiteful” to expel people from the Labour Party and called for an “amnesty” for members who did not support the party at the European elections.

It is very clear that many thousands of Labour Party members voted for other parties last week. They were disappointed with the position on Brexit that a small number of people on the NEC inserted into our manifesto. They were sending the NEC a message that our position lacked clarity and they were right.

It is spiteful to resort to expulsions when the NEC should be listening to members.

The politics of intolerance holds no future for the Labour Party. A broad church party requires pluralism and tolerance to survive.

There should be an amnesty for members who voted a different way last week. We should be listening to members rather than punishing them.”

Tom Watson MP, Deputy Leader of the Labour Party

The Labour Party should admit to a mistake and reinstate Alistair Campbell without delay. The prospect of this ending in the High Court is another example of any chance of Corbyn’s Labour winning the 2022 General Election being frittered away by sheer bloody-minded incompetence by some who populate the Leader’s Office.

#IamSpartacus

A proper thorn in the side

Since the general election I have not had much time to get involved in wider politics or the Labour Party (I’m too busy being retired) but I thought I’d break radio silence for just a moment to say I’m delighted to see that Johanna Baxter is running again for election to the National Executive Committee (NEC) of the Labour Party.

When I was writing reports for the NEC and its sub-committees you would get the usual unthinking support or unthinking criticism from one side or the other of the factional wings of the Party. But there a were a few people who would consistently give any report whether from Party Staff, or from the Leader, or from an external body a hard, properly critical review. Look at the public comments made by current and previous members of the NEC and it’s not too difficult to work out who is carrying out a real job and who is just carrying a slate.

Jo Baxter was a proper pain. Not only was she likely to have read every dot and coma of any report, but she would have done some of her own background research and was only too likely to come up with some ideas of her own. But whether she was coming up with new ideas, or tweaking the ideas of others, she always did it with the best interest of the Party and of the people we seek to represent at the forefront of the debate. Absolutely no-one could question her loyalty to the Party and to the various Leaders she has served as a member of the NEC over the years. As a former member of staff I was also always grateful to her (and to others on the NEC) who recognised the work of all the staff on behalf of the Party.

If you want someone on the NEC who is just going to toe one line or another then you might want to look elsewhere. But if you want someone who is going to speak up for ordinary members whilst being a loyal, but critical (in the best possible way) member of the NEC then Jo is definitely top of that particular tree.

As she says herself, “If you elect me you will have a representative who will be relentless in holding the Party to account to make sure we are ready for that election whenever it is called. You will have a representative who has a track record of working and campaigning with all sections of the membership, who has still visited more Constituency Labour Parties across the country to engage with members than any other volunteer and whose reputation as an NEC member was of hard work and fair judgement.”

That’s why I will be supporting Johanna Baxter. But you need to make your own mind up and you can read more at www.johannabaxter.scot.