This is the first part of my three part article on the Labour leak of a management report into the activities of Labour’s Governance and Legal Unit (GLU) in its handling of anti-semitism complaints. This part looks at the act of the leak, the legal (or lack of) immunities, the rights of the employees and those of the management and the anti-corruption laws, basically the legal position outside the rules of the Party.

Breaches and Immunities

There would seem to be at least two[1] leaks, and we cannot assume they are the same people. Much focus has been given to the issue of if the leaker, or any of the leakers have a public interest defence. The fact that the document is unredacted makes its publication/release problematical and if the Labour Party is found to be culpable then it could be quite serious. The maximum fine for a data protection breach is €20m although given the limited number of people impacted, I think it’s unlikely that such a fine would be levied although much would be dependent on the measures or absence of measures taken to provide “adequate technical and organisational protection”.

Protected Disclosures

The statutes that defines the relevant public interest thresholds are the DPA 2018 and the Public interest Disclosure Act, the latter stating that for a limited number of acts, including crime, compliance failure, or “a belief that information about one of the above is being covered up”, an employee may inform a prescribed person of what they know. The list of prescribed persons is maintained by the Government and does not include the press.

The one complication in this is that acts of racism or other crimes in contravention to the equalities act would be reported to the Equalities and Human Rights Commission; it is reported that Labour decided on “legal grounds” not to submit the document to the EHRC which is conducting a review into the Labour Party. Until we know the nature of the legal advice, the independence and professional standing of that advice and the reasons to accept the advice, this decision might be a seen as a cover-up and thus releasing the report to the EHRC may have been a protected public disclosure.

Management and employee rights

Most companies of any size and in highly regulated businesses will have a whistle blowing policy, which allows staff to avoid the chain of command, report their evidence of such acts to management who promise no retaliation. It seems the Labour Party does have one in its staff handbook but I have not read it. This further begs the question why the report was not sent to the EHRC, if not with the agreement of Labour’s internal lawyers then as an act of whistleblowing.

Some have suggested that the construction of the report was a breach of the staff’s human rights and their expectation of privacy. Management have a right to expect that work conducted by employees is done using tools provided by the management, in this case I.T. systems. The General Secretary has the authority the duty to investigate all facts available if they believe that wrong has been done. Management have the right to demand that all work-related business is conducted on their I.T., and that the artefacts created belong to the organisation. The use of personal phones to have private conversations about work is an act of misconduct because it jeopardises the Party’s compliance commitments.

It would seem to me that the alleged behaviour within the GLU cannot have been undertaken with an effective performance management system, although the culture of corruption and impunity at the top of the organisation would just make this another instrument of bullying. The performance management scheme will provide another set of criteria against which the alleged misconducts can be judged.

If the allegations are true, the NEC needs to consider if acts warranting disciplinary action as employees or members needs to be taken. 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.

Corruption & improper behaviour

A third source of rules against which the alleged misconducts can be assessed are the financial rules.

I feel that the investigation needs to determine if the decisions on expenditure for the 2017 election were taken in accordance with the LP’s financial control regulations and if the recording of the accounts to the members and to the Electoral Commission were done properly. Given Labour’s strong stance against electoral fraud,

C5.I.B.ii The Labour Party does not tolerate electoral fraud and no member who has been found guilty of an illegal or corrupt election practice as defined by the Representation of the People Act 1983 and subsequent legalisation may be considered for selection for public office at any level without the prior approval of the NEC.

the party needs to assure itself that the members’ and political levy payers’ money was spent in accordance with the Law and the financial control rules in place. In short, the Party needs to ensure that no financial crime occurred.

The Bribery Act also gives us two useful tools to make judgement on. It defines Bribery as,

[any] act designed to obtain or having the effect of obtaining advantage through the ‘improper performance’ of another person.

MOJ Guidance document

thus giving us the concept of ‘improper performance which the MoJ in its guidance on the law defines as

“‘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.

Management has a right and duty to see if anything wrong has occurred.

MOJ Guidance document

[1] One to Sky and a second one the internet; there may be more.

Labour’s leak, rights of privacy and the public interest
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