The Labour Party leadership’s new move to ban some groups, following on a new wave of suspensions and exclusions since December 2020, and the previous waves in 2015 and 2016, is built on a rulebook allowing much scope for arbitrary purges. In this article, written before the move for new bans, Dave Levy argues for a rulebook providing democracy and due process.
The reaction of the Party’s new leadership to the Equality and Human Rights Commission (EHRC) report on antisemitism seems to be to assume that everything they wanted was agreed, and that what they wanted is the answer to the Party’s problems of bullying and harassment.
I believe that the EHRC, in their report on Antisemitism in the Labour Party, have failed to meet their duty of balancing Human Rights and Equality Law, and that this has been accepted with alacrity by the Party’s “new leadership”. They mention Freedom of Speech which is enshrined in Article 10 of the European Convention but not the Right to a Fair Trial (Article 6), nor to the right to Freedom of Association (Article 11), both of which are engaged in the politics and good governance of a political party.
Curbing free speech
The arrogance in the leadership shows itself as a continued harassment of free speech activists and party voluntary officials, actions which can now be seen as going beyond any reasonable action to defend the reputation and legal position of the Party. The arrogance exposes itself in the Labour Party Plan published on 17 December 2020; the EHRC is monitoring the plan and its progress.
There are problems with their determination of criminal harassment, or certainly with the interpretation made by David Evans, General Secretary designate of the Labour Party. It must be recognised that “Free Speech” includes the right to offend, and that political free speech is doubly protected. Evans’ use of “prior restraint” is an overreach of any proportionate response. To stop debates and motions because someone might be offended is an abuse of powers not granted in the rules or the law.
The General Secretary’s response to the Report shows a myopic focus on potential unreasonable offence. While many, including it seems Starmer and Evans, are concerned that the Labour Party has been found to have broken the law by permitting harassment, to me, the worst finding is that there was no process for the conduct of investigations, the decision to “prosecute” and the determination of sanctions, exacerbated by the fact that the National Constitutional Committee (NCC) was not given independent legal advice. All of these make a “fair trial” impossible. Such a situation, i.e. a lack of policy, permits arbitrary actions by those authorised to act and denudes such staff of the ability to defend themselves against accusations of corrupt behaviour, except by “innocent until proven guilty”, a privilege denied many caught in this Kafkaesque process.
The Labour Party’s disciplinary processes must be made to comply with Article 6 of the European Convention, guaranteeing a fair and public hearing within a reasonable time conducted by an independent and impartial tribunal, this should be conducted in the open, people are innocent until proven guilty, they have the right to time to prepare a defence, have a lawyer of their choosing, and to have it paid for if they can’t, and to cross examine witnesses. This is crucial and the current fast track fails in many ways; and the failure to offer independent legal advice to the NCC and to restrict defence lawyers’ access to the NCC is also a failure. The use of administrative suspensions, ostensibly to protect the party’s reputation, is in contradiction to “innocent until proven guilty”, and the leaking of such decisions is in breach of Article 8 of the European Convention on Human Rights (ECHR), the right to privacy; yet this is persistent and to my knowledge no-one had been suspended, expelled or dismissed for such behaviour.
Many seek to focus the remediation plan on the need for “independence”. Too much focus has been given to the requirement that the disciplinary process is independent, but independent of whom? The report states that the disciplinary process must be independent of the leadership and the National Executive Committee (NEC). Independence also raises the issue of how people can exercise their right to freedom of association (ECHR Article 11 rights) if others are telling them (us) who can’t be a member. The decisions on expulsion and punitive suspension must be taken by a party body such as the NCC which then must receive independent advice, separate to that given to the investigators and “prosecutors”.
The more I think about this, the more certain I become that Labour’s rules defining the grounds that the Party can take disciplinary action are unsatisfactory. The rulebook states:
“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”.
This puts the impact on the reputation of the party as the central test for disciplinary action. This is wrong and in breach of Article 10 (Free Speech); the Party does have the right to deal with racism, harassment and bullying, but these are not reputational issues, there will be facts and legal precedent and when dealing with such complaints, the Party should always bear in mind that criminal acts should be dealt with by the police and courts; but we are left with the fact that there is no objective test defining prejudicial or grossly detrimental and that the test in the rules is “in the opinion of the NEC”, which I would expect to be interpreted in a court through the lens of a reasonable person. This needs to change. There is currently a lack of certainty to party members and certainty is another aspect of natural justice.
Additionally, the summary power to expel for “supporting a political organisation other than an official Labour Group” is imprecise, too broad, and in reality, used in an unacceptable, arbitrary fashion.
Towards a democratic procedure
The Labour Party needs to rewrite its disciplinary code, embedding Article 6, together with the principles of natural justice, innocent until guilty, proportionate punishment, the MacPherson principle, clarity for members and staff on grounds for disciplinary action, technical and organisational controls to stop the destruction of records or other improper behaviour, robust victim care, fairness to complainants to stop the premature and arbitrary rejection of complaints, ensure that there is no undue and unfair delay, rules on how to deal with NEC and staff, policy about how to exercise the Party’s safeguarding responsibility and inform the police or other responsible persons of any crime, policy on how and why administrative suspensions are to undertaken, prohibiting disguised double jeopardy and guaranteed timescales. The policy needs to offer certainty to members and staff, and a tariff of punishments acting as guidance to the NCC needs to be published.
So what needs to be done to introduce a fair and independent disciplinary process for the Labour Party?
1. The codes of conduct and means of complaint, investigation, ‘prosecution’ and determination of complaints needs to be written down. The processes must be compliant with the European Convention of Human Rights, especially, the right to a fair trial, but also the right to privacy, the right of free speech and the right to freely associate. These codes and processes contrary to the EHRC report’s recommendations must be applied to all complaints including actions by staff that are harassing, bullying, or factionally motivated.
2. The rules should be changed to ensure that they are interpreted as complying with the European Convention on Human Rights.
“Rewrite its disciplinary code with natural justice, innocent until guilty, proportionate punishment and much more”
3. It is necessary to establish or re-establish a complaints department to receive complaints, investigate them or discard them, and prepare prosecutions where indicated after investigation. The conduct of the complaints function must remain accountable to Labour’s complaint handling policy once it’s written one. The EHRC only requires that organisational independence occurs “until trust and confidence in the process is fully restored and should ensure that independent oversight and auditing are permanently embedded in the new process”. Independence means independent of the Leader and NEC. Sanctions must be the sole prerogative of the NCC.
4. The rules, policy and practice of suspension needs to be rewritten so that the authority to issue suspensions is defined, used only in defined emergency cases of where further harm is highly likely if an alleged culprit is allowed to continue to hold office or attend meetings, suspension notices must define the alleged wrongdoing, specify an end date and guarantee an independent hearing within a limited time. The excessive confidentiality clauses in the suspension letters is also contrary to the principle of innocent until proven guilty and, while the privacy of others including alleged victims, must be respected, suspended members must be able to discuss their suspension and build a defence.
5. The determination of sanctions should remain with the NCC in order to guarantee the membership’s Article 11 freedom of association rights. Sanctions should be subject to policy. The NCC must be given a budget and the ability to receive legal advice independently of that offered to the NEC and the investigators. It requires a full-time secretary, which should be established in the rules with their accountability belonging to the NCC, not the General Secretary (GS) nor the NEC. The NCC requires a right to report to Conference. The summary power to expel for “supporting a political organisation other than an official Labour Group” needs to be abolished. The Party does not need such a rule to act against people who stand or nominate candidates in opposition to Labour. In the circumstances of an election, speed of decision is important and desirable, but yet again there is a lack of process, lack of certainty and lack of transparency.
6. The rules defining the CLP route to a complaint must be abolished. (Chapter 6.II); it is not possible to run this process and conform to the right to a fair trial, especially innocent until proven guilty, a hearing in front of an independent tribunal and the right to privacy. It is equally deficient in guaranteeing any victim care.
7. A decision to proceed with a “prosecution” has two stakeholders, the complainer and the accused. Labour’s processes must be fair and proportionate to both. Complainers deserve to know what has happened to their complaints, and the accused need certainty and speed to allow them to establish their innocence.
8. The General Secretary role is too powerful and insufficiently accountable to the rules, the law and the NEC. It requires more checks and balances as exist within most private sector organisations where the Chief Financial Officer, and the Head of Compliance, together with the Data Protection Officer have accountability to the law above that of their accountability to their employers. These officers should be established in the rules, and their accountability established to the membership through the law. These officers should be appointed through a fair competition and only suitably qualified persons appointed. These officers must be independent and safe from factional victimisation and dismissal, i.e. they are not to be dismissed for doing their job; they must have the right to address the NEC and Conference. The GS must be prohibited from exercising the powers of these officers. The NEC must be prohibited from delegating their powers of oversight of the General Secretary to the to the GS; they i.e. the NEC are the means by which the GS is managed and made subject to performance management control.
9. The party requires a Members’ Ombudsperson, who shall be a paid appropriately, and provided with sufficient resources necessary to carry out their assigned tasks. The role of the Ombudsperson shall be to investigate complaints of a breach of rules or other improper behaviour by the complaints and compliance functions. The Ombudsperson shall be independent and impartial. The Ombudsperson must be appointed through a fair competition and only suitably qualified persons appointed. The Ombudsperson must not receive any instructions regarding the exercise of their tasks, nor be dismissed or penalised for performing their role. The Ombudsperson must have the right to forward disagreements with the complaints and compliance functions to the NCC for final resolution and to address the NEC and Conference. The GS must be prohibited from exercising the powers of the ombudsperson.
While these specific, rules orientated changes are needed the “big goal” tests that we must judge any proposals for change are, that any changes must bring Labour’s disciplinary process into compliance with the ECHR’s rights to a fair trial. Disciplinary offences must only seek to sanction acts of harassment, crime in which the Party or another member is victim, and crimes or misdemeanours as a public servant. Personal hostility is also unacceptable. Processes must be fair, proportionate, offer members certainty and a right to an effective defence and meet the Party’s safeguarding responsibilities. Factional abuse must stop.
• Dave Levy is secretary of Lewisham Deptford CLP, writing here in a personal capacity