This is part II of my commentary on the Labour Leak, it looks at the missteps and failures to control the bureaucracy from 2015 to 2019 and looks at the structural faults, the need for a robust segregation of duties, how Labour has changed its rules to make expulsion of alleged antisemites or troublemaker’s easier and how McNicol’s eventual departure allowed both damage to be continued and a cover-up to become deeply embedded within the Party.
A better segregation of duties
I have written a lot during Labour’s democracy review on the issue of segregation of duties. The General Secretary is too powerful; it’s a feature of the role’s design and this is worse at the Regional Director level where they inherit powers from both the GS and the NEC which is designed as the means of accountability and control for the General Secretary. We have been shown that a General Secretary that has the confidence of the NEC, or at least enough of it to block any sanctions can do what they like, which includes breaking the rules and maybe the law.
The Govt. Department responsible for supervising & enforcing the country’s anti-corruption laws is the Ministry of Justice, they have issued guidance which states that,
‘Improper performance’ is … performance which amounts to a breach of an expectation that a person will act in good faith, impartially, or in accordance with a position of trust.”
MoJ Guidance on the bribery act
Improper performance is the result of any action designed to having the effect of gaining advantage through an improper performance and is a crime.
The key question is how do we stop this happening again?
If we look at the literature and commentary on corruption, it is clear that anti-corruption programs have to come from the top and the critical controls are the performance management system, strong and clear financial controls, a robust whistleblowing system , the need for decisions to be taken by more than one person and an effective Risk & Audit Committee. While some may argue that McNicol has proved the need for change, we need to understand the role of those who ensured that the controls that do exist didn’t work.
The problem is the powers of the GS, and the concurrent GMB affair shows that election without controls is not the answer to the problem.
What happened here, it would seem, is that the General Secretary took a number of decisions on a highly factional basis, encouraged staff to do the same or ignored staff who behaved in this way and this has been covered up by his sponsors/supporters on the NEC; attempts to clean the stable have failed because there isn’t the will and because those on the losing side at a national level were just waiting to inherit the same powers.
We need to consider why the NEC permitted this to happen because McNicol was gone within two months of the special bye-election for NEC places that led to the election of Momentum Chair, Jon Lansman together with Yasmine Dar and Rachel Garnham. We must assume that before that, the votes weren’t there to hold McNicol and GLU to account.
Matters other than antisemitism
The leaked report was only looking at the conduct of GLU with respect to antisemitism, it fails to document the 1,000’s of bullying complaints, and the misuse of the disciplinary system for political control, not just at national level but in many CLPs, Labour Council Groups, together with Labour Campaign Forums especially during the selections for the all member 2018 council elections.
We need answers as to whether the decisions taken in the run up to the 2016 leadership challenge which were supported by the NEC were taken in good faith and in accordance with the principles of good governance. In legal terms, were all relevant criteria considered and all irrelevant criteria ignored. The national regulatory regimes which govern these issues are the Nolan principles i.e. the report of the committee into standards in public life & the Bribery Act.
We also need to understand if ‘improper performance’ occurred during the selections for MPs for the 2017 election; the PLP lost 14 members in the two years of the parliament for various reasons, from perjury through sexual harassment to a lack of commitment.
These are not victimless acts, the victims are the ordinary members suspended and even those investigated and cleared and let’s remember that they invented a procedure whereby they wrote to people saying that they had no evidence but that if another complaint was made then it would be taken as a factor In any future investigations.
Labour’s rules
The NEC have rightly fought to ensure there is no place for antisemitism in the Party, and have launched two enquiries, issued three codes of conduct, and changed the disciplinary rules three times. After the original stories about antisemitism and its weaponisation in Oxford Labour Students and NOLS, the NEC commissioned a report by Baroness Royall, which found little; Corbyn commissioned a report by Shami Chakrabarti which made a number of recommendations and also proposed changing the rules, proposing the abolition of the absolute free speech defence. McNicol’s NEC refused to bring these rule changes to #lab16 and in the tradition of the Labour Party in playing the player not the ball, their allies launched a campaign to denigrate Shami Chakrabarti and the report. Despite this, the NEC brought rule changes to Conference for the following three years. (2017 – 2019). All these changes weaken the presumption of innocence.
The effect of all this is that the segregation of powers where the Conference defines the rules and thus unacceptable behaviour, the secretariat investigates complaints, the NEC decides to if there is a case to answer and the NCC acts as judge and jury taking into account the accused’s defence has been weakened. The NEC writes the Codes, and now also decides on guilt and sanctions without a right to state one’s defence. We now have evidence that the investigation process has been corrupted over the last four years. This agglomeration of power is not something we permit in our judicial system as it breaches the principle of a fair trial.
Wrong steps
The transition from McNicol’s term of office to that of Formby was not handled well. The use of compromise agreements, involving extra contractual payments for McNicol and other key senior staff. One lesson must be that the widespread use of Non-Disclosure Agreements and the use of peerages to supplement senior staff pensions needs to stop.
The fact is that Corbyn’s office were so grateful for their agreement to go that they were prepared to pay any price. The eulogy by Corbyn, reported in this Telegraph article, dated 24th Feb 2018 is shocking in the light of the allegations, I reproduce the full quote in my blog article, “Not even the basics”.
“I would like to personally thank Iain McNicol for his long and dedicated service to the Labour Party as General Secretary.
He has run our party’s organisation at a time of great change, including a near tripling of the membership, two general elections and the EU referendum.
Iain has served the Labour Party and trade union movement in a wide range of roles throughout his career and is a credit to our movement.
I am confident Iain will continue to play a major role in politics and our party, and will support our team inside and outside Parliament with his experience and skills.
Jeremy Corbyn (according to the Telegraph)
At the time McNicol resigned, the Head of Compliance, Stolling and London Regional Director, Fleming also resigned but were all allowed to work their notice. This is pretty much unheard of in the private sector. We also need to know if others were involved. The exposure of one individual’s WhatsApp records shows that much of this was undertaken using IT tools to which Labour’s management had no access. There may be much more to find.
The contents of the leaked report suggest that acts of gross misconduct and 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” have occurred. If so, employees should be dealt with under the staff disciplinary rules and if necessary, under the party’s disciplinary rules. Each allegation against those no longer employed by the Party needs to be assessed but if any compromise agreements were signed with people that have been shown to have performed acts of gross misconduct then the Party should look to recover the, in some cases, very generous compensation payments made. …
