I have drafted some rule changes for people to work with for #lab21, These include proposals to establish a duty of good faith on NEC decisions, restore the rights of free speech for members, the need for NEC rule changes to have 30 days notice and the right of delegates at conference to call for card votes. …
A friend asked me to look again at Evangelou vs McNicol, which I did, by looking at Evangelou vs Mcnicol Appeal Judgment 20160812
The clause that interests us all is,
24. In the present case, there is no challenge to the rationality of the eligibility criteria and the freeze date, and they are only said to be unauthorised on the true construction of the contract. It is, however, relevant to note that a discretion conferred on a party under a contract is subject to control which limits the discretion as a matter of necessary implication by concepts of honesty, good faith and genuineness, and need for absence of arbitrariness, capriciousness, perversity and irrationality: see Sochimer International Bank Ltd v Standard Bank London Ltd [2008] EWCA Civ 116, [2008] Bus LR 134 at [66] and Braganza v BP Shipping [2015] UKSC 17, [2015] 1 WLR 1661, and the cases on mutual undertakings and bodies exercising self-regulatory powers mentioned at [47] below.
I have written about this previously on the ruling, and about irrationality, however I have previously focused on the absence of of arbitrariness, capriciousness, perversity and irrationality, but looking at the current so-called evidence definition for proscription hearings, I come to the conclusion that equally important are honesty, good faith and genuineness. I should always have started there! …
I am reading the Secret Barrister’s first book, I provide a quote,
“In the Crown Court, I have prosecuted many appeals from the magistrates’ court of unrepresented defendants and have lost count of the number of cases where there has been a conviction that is completely wrong in law, or completely wrong in evidence, the fact of which only emerges upon close inspection of the papers. “
The Secret Barrister
If the courts get it so wrong, and when we examine the Labour Parties rules …. …
Skwawkbox has been reading the new rule book and reports on the new rule (C2.I.4.D/P14) which seeks to protect the expulsion process from judicial interference and a duty of fairness.
D. Neither the principles of natural justice nor the provisions of fairness in Chapter 2, Clause II.8 shall apply to the termination of Party membership pursuant to Chapter 2, Clauses I.4.A and C.
Labour’s Rule book 2022
Chapter 2.II.8 guarantees the right to dignity and respect and a right to be treated fairly by officers of the Party 😊
Clauses 2.I.4.A and C are new rules and create an offence of a proscribed act (A) which are listed in …(B), and the evidence which is deemed to prove these acts (C). The acts are related to standing against the Labour Party, or pursuing a vexatious law case against the Party.
It seems to me that the rule may have the opposite effect to its design.
The exclusion of the right to natural justice is only applicable to auto-exclusion on the basis of grounds listed in C2.I.4.B; these do not include being a member of a proscribed group, nor committing the acts defined by NEC resolution proscribing them such as selling a newspaper, writing for it or being interviewed by it.
The attempt to exclude the duty of fairness and the language used, while refusing to accept the constraints of the Nolan principles is shocking. It’s so bad that I was asked if it had actually gone through conference, and the answer it has. It was listed in CAC 2 for Conference 21. Conference was asked to debate and pass 37 pages of amendments with 4 hours notice of the text. I have drafted a rule change to prohibit this abuse.
I add, that given the current NEC and General Secretary’s view of the rules, there are only three, (or on Medium) which count.
This is the speech I would have made on the rule changes implementing an independent disciplinary system.
The EHRC said we needed an independent disciplinary process, independent of the Leader & NEC. As a Party we should expect that we would develop a process conformant with the standards of natural justice and Article 6 of the European Convention on Human Rights.
People are entitled to “a fair and public hearing within a reasonable time by an independent and impartial tribunal”, article 6 also enumerates criteria of fairness, inc. innocent until proven guilty and the right to present a defence and chose an advocate. It also guarantees a free defence for those that can’t afford it.
Such a scheme would require that the investigation and decision to prosecute should be under the direction of lawyers with an ethical commitment to their peers i.e. other lawyers, and that guilt and sanctions if required, is determined by a jury of our peers, advised by legal advice independent of that of the ‘prosecution’. Let us note that the EHRC also called out Labour for not offering the NCC independent legal advice.
These proposals are the wrong way round and will not protect the party from allegations of a factional use of its disciplinary system, not least because of the central role of the General Secretary, who does not and has not previously held a professional qualification guaranteeing a commitment to a standard of ethics. This is not to say that I consider the current incumbent to be unethical, but the fact is he is a paid officer of the party accountable to the NEC and is thus not independent of it.
We have also been told we have to pass these rules, that not to do so would be crime against the EHRC’s remediation plan and our compliance agreement. This is not so. The NEC could and should have proposed a truly independent disciplinary process; this isn’t. We can do better.
To finish, I am pleased to hear the assertions and promises that these rules will prove we’ve turned a corner, and that this shame will end.
There's some comments overleaf ....
The Party voted to reverse the 2018 trigger ballot reform which had reduced the threshold required to force a reselection ballot to ⅓ of the membership branches or ⅓ of the Affiliates; now it’s ½ of the membership branches and ½ the Affiliates. While in our CLP, all seven branches voted to confirm Vicky Foxcroft as our candidate, there are only seven membership branches, there are over 20 affiliates and we’re arguing about several more. In any seat with a reasonable number of affiliates, it is now those affiliates that decide if an MP needs to be face the membership.
We had been treated to a speech from Shabana Mahmood, claiming that trigger ballots were a distraction from campaigining, but no-one mentioned the failure to trigger Hooey, Danczuk, or Mann, who at the end of their service had ceased to be supporters of the Labour Party, nor of Keith Vaz who had been under investigation since 2009 and yet had been confirmed by the trigger ballots and allowed to run as Labour candidates. In my article, “The Magnificent 7, not!“, I note that Labour lost 15 MPs during the 2017/19 parliament, six of them due to unacceptable behaviour and the other eight through a loss of commitment to the Labour Party. (Of the six, two were new MPs in 2017, yet four had survived trigger ballots although in 2017, there were none, and not all MPs went through the trigger process in 2019. )
Why do we permit the corrupt and foolish to stand & restand? If we make it harder to lose a trigger, the NEC is going to have to look harder at the records of those who ask to remain in place; as it seems they do for Councillors.
It’s fortunate indeed that Conference passed a rule change to mandate selection processes involving the CLPs in the case of by-elections and snap elections. We’ll see if it survives the tyrannical trifecta of Starmer’s NEC. …
I hope I get my act together and do the reading or writing for something on ‘shortages’, Citizens take over Europe‘, economics, immigration, union democracy or UK defence policy. But meanwhile here’s a piece on the Labour Party rules and competent business.
I was asked, but not personally, and I paraphrase, “Are motions on the current round of proscriptions and auto-exclusions ‘competent business’ for CLPs?”
I have not read the motions in question and it’s possible to write one that is not competent.
I think that arguing that the proscription process, the criteria defining ‘support’, the members of the list of proscribed organisations, their swapping the disciplinary route from C6/NCC to 2.I.4.B, their prosecution for events that took place before the proscriptions decision, their failure to notify members of the change of rules are wrong, is legitimate business. (You can probably add to this list.)
I think there is an argument that auto-exclusion under Rule 2.I.4.B is not a disciplinary process.
Formby’s ban on discussing disciplinary cases was based the powers in 1.VIII.3.A.iv & 6.I.1.D both of which state that the decisions of the NEC or NCC shall be final but only if the process defined by those rules is engaged. As should be obvious, the decision to auto-exclude means that the NEC & NCC do not take decisions and so these protections for the decisions no longer apply. 2.I.4.B does not provide the “finality” protection to the decision. I would also argue that switching a prosecution track from one route to another is contrary to natural justice as is backdating the date of the events leading to prosecution.
Overall the prohibitions cover individual disciplinary cases, because they belong to other bodies, challenging the EHRC report, challenging legal settlements associated with court supervised apologies, and there’s a form of words stating that CLP leaderships have a duty to “… [create] an open and welcoming environment for people of all communities and backgrounds”. ( I need to find a reference for this last bit, and there is a more explicit guidance as to meaning of this last prohibition but it’s not on the internet nor afaik on the LP’s web site.)
To answer the author’s question, CLP leaderships will get into trouble for ignoring region or GLU advice, or acting in bad faith. If in doubt ask them, but bear in mind your members right to write and move a motion, it’s protected by their rights to freedom of speech and doubly so if the motion is proposed as conference motion. …
The Labour Party only has three rules.
C1.X.5 which say the NEC has final interpretation of the rules
C1.VIII.3.A which says the NEC can do what it wants to enforce the rules
C1.VII.1.C.ii which says the GS can assume delegated powers from the NEC and pass them on.
This is Tyranny. …
At London Labour Conference, the staff used a number of tricks to ‘control’ the zoom meeting. They closed the meeting early having failed to silence Katheryn Johnson, the outgoing Chair of the CAC and they also excluded Craig for asking questions about expulsions and the Forde Enquiry and there are rumours that they chucked out some delegates for ‘inappropriate’ background images by which I mean ones with the slogans ‘reinstate Jeremy Corbyn’ and “where’s the Forde Inquiry”. I am also concerned that not all people present in the meeting were validly nominated delegates and know that we were one delegate short as they had made a mistake, again, in calculating our delegate entitlement. During the first day, the Chair, failed to ask the mover of our motion to speak in summing up, and then proposed to move to the card vote. I was concerned that this would stand and tried to move a point of order; this was not possible. This is not the first time that London Region have used control of the meeting to ensure that meetings avoid taking decisions they don’t want taken. The rest of this blog looks at four of Labour’s Rules which have probably been broken.
Rule C9B.IV.9 Procedure at Regional Conference shall as far as practicable be informed by the Standing Orders agreed at the last session of Annual Conference.
The standing orders agreed at the last session of Annual Conference are in Chapter 17 and so the following two rules apply.
Rule C17 I.2.N.i Any breach of or question to the rules or standing orders may be raised by a member rising to a point of order.
It was not possible to raise points of order.
Rule C17.I.2.O.ii Any member acting in an unruly or disruptive manner, in contravention of the standing orders, may be removed from the meeting by action of the chair. The chair shall put such a motion to the meeting, which to be carried shall require the support of two-thirds of those present and voting.
People were excluded other than via this procedure.
C2.II.8 Members have the right to dignity and respect, and to be treated fairly by the Labour Party. Party officers at every level shall exercise their powers in good faith and use their best endeavours to ensure procedural fairness for members. …
After the proscriptions decision by Labour’s NEC, I had a quick look at the Report of the Charkrabarti Inquiry again, as she was very firm on natural justice.
Another matter which has been brought to my attention is the frequency of resort to the power of interim suspension in cases where an allegation that a member has acted in breach of the rules is before the General Secretary and/or his staff. Indeed, an early lesson that any new General Counsel might offer his/her colleagues is on the application of the vital legal principles of due process (or natural justice) and proportionality.
Shami Chakrabarti (Page 18)
She considered conforming to the principles of natural justice so important that she proposed to write conforming to them into the rules. Another shame that this was not implemented. …