ehrc – davelevy.info

A new disciplinary process (for Labour)

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 ....

Labour and antisemitism, some thoughts

I have now read the EHRC Report, Investigation into antisemitism in the Labour Party, and this is what I think needs to be done. I have published some thoughts already and I believe that it is necessary that the Labour rectify its rules and culture to make it a place where discrimination is both absent and shunned, where perpetrators have the opportunity for contrition and that suspensions and expulsions are a last resort applied only after a fair trial. I am particularly incensed to find there has been no policy nor procedures to guide the investigation nor the determination of discrimination complaints because it’s so basic. However, before I look at the specific recommendations, I want to look at some context. The first is Human Rights law, and the second is that the failings are so basic that anyone of good faith will insist that any remedy is applied to all complaints and disciplinary processes and affairs because the failings are systemic, not specific to handling antisemitism complaints. The article then looks at what a fair and independent process might look like and asks that it take account of the ECHR’s Article 6 and 11, the right to a fair trial and freedom of association. It calls for the retention of the NCC and the provision of legal advice to ensure its independence from the Leader and the NEC. It recognises that the Party must be considered institutionally racist and that attempts to fix the problems have been dogged by factionalism. It calls for the adoption of the Nolan Principles. It recognises that things were worse under McNicol until Formby was appointed. It reaffirms that Labour’s policy and rules are made by Conference and not announcements by the Leadership. These issues are explored in greater detail overleaf …

Things improved under Formby

It is clear from reading the EHRC report, Investigation into antisemitism in the Labour Party that things improved when Jenny Formby became General Secretary in 2018, but the EHRC’s sample data looked back to 2011. The EHRC report states several times that the failure to act on the Royall & Chakrabarti Inquiries is a failing and evidence of Labour’s complicity in the inadequacy of its processes. Much of the failure needs to be placed at the door of the then incumbent General Secretary, Iain McNicol, Formby’s predecessor, and the NEC members that allowed him to act with impunity. Additionally it should be noted, to give an idea of the scale of McNicol and Harman’s ambitions, that over 10,000 complaints were lodged over the summer of 2015, leading to over 5,000 suspension and nearly 4000 investigations, all of them with no policy to guide the investigators and the NEC members making judgement. To expedite the process the NEC set up a wonderfully named Procedures Committee to supervise this purge/examination of eligibility, it consisted of Harriet Harman MP, Margaret Beckett MP, the then general secretary Iain McNicol, Jon Ashworth MP, Keith Birch (Unison), Paddy Lillis (USDAW), Jim Kennedy (Unite), Diana Holland (Unite) and Ann Black (CLP). It’s interesting how some of the names are still around and even more powerful today; the Guardian story exposes how the committee rejected legal advice on using the canvassing records as reasons for exclusion. Canvassing records should only be used for the purpose for which Labour holds them, electoral campaigning, anything else is a likely breach of the electoral secrecy laws. I was advised that I must not use the canvassing records as a source of information when recommending people to be rejected as members or registered supporters during this period.

timeline rules leaders and general secretaries

The Labour Party in an attempt to improve the antisemitism complaints handling process has changed its rules three times (Conference 2017, 2018 & 2019), the 2017 amendment removed/weakened the free speech defence, the 2018 amendment made breach of codes of conduct disciplinary offences and gave the General Secretary powers to delegate their authority to people other than staff, and 2019 introduced ‘fast track’ process where the NEC and not the NCC heard cases related to discrimination without hearings. These developments show that the Labour Party took the problem seriously but focused on end stages of the process and in doing so, ignored the investigation stage and decision to prosecute which the EHRC has excoriated. The Party also in making these changes created a special class of complaint, that of discriminatory behaviour, which is treated differently to bullying, slander, thuggery and breaches of the rules for factional advantage.

In the LRB review of Jones’ “This Land” and Pogrund & McGuire’s “Left Out”, the James Butler, says, that

His [Jones’s] account is an improvement on the defensive response that the public’s perception of the problem with antisemitism in Labour was distorted, or that positive changes were made to disciplinary procedures after they were taken out of the hands of anti-Corbyn party staff.
James Butler – LRB

This article is not an attempt to say that Labour solved its disciplinary problems under Formby, it clearly didn’t but she inherited a system far distant from what was needed. Its crap etherealness and its then and current inability to address corruption within the bureaucracy are further reasons why the EHRC recommendations should be pursued. …

Political Interference

I have now finished reading the EHRC Report into Anti-semitism in the Labour Party, and while doing this, Corbyn has been suspended, reinstated and then had the whip withdrawn, by it seems a small coterie of staff, in the Leader’s Office and General Secretary’s office, specifically the Leader and GS themselves. In looking at my blog article to remind me what I said, and what remains unsaid, I came across this quote, which is a recommendation; some work to do, I think.

Acknowledge, through its leadership, the effect that political interference has had on the handling of antisemitism complaints, and implement clear rules and guidance that prohibit and sanction political interference in the complaints process.
EHRC – Antisemitism in the Labour Party (P13)

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On the EHRC report

The EHRC have issued their report into Antisemitism in the Labour Party, they say that Labour needs to rebuild trust & confidence in the antisemitism complaints handling process, reform and provide education & training, most importantly to complaints handling staff, and monitor and evaluate the changes. Everyone has committed to doing this and the proposals are not controversial. They also found that unlawful acts under the Equalities Act had occurred and therefore served an unlawful act notice on the Party. The Labour Party is now legally obliged to draft an action plan by Thursday 10 December 2020 to tackle the unlawful act findings that were made in the report. The action plan should be based on the EHRC recommendations to avoid such acts from happening again. With good will, this should be possible, but with the remaining actions taken that day, we have to question if the Labour Party actually wants to move on. The rest of this blog article looks at the report and selects some quotes, it concludes, with the statenebt that, "The Labour Party will not fix the problem of anti-semitism or other appalling behaviour whether it be based on a protected characteristic or just straight forward bullying and cheating, until it recognises the corruption of the disciplinary process caused by factionalism. This diversion i.e. the suspension of Corbyn will make the task of making the Party a welcoming place for all who wish to join much harder. I have signed the petition that he should be reinstated, and the CLPD have published a solidarity motion to put to CLPs and Union Branches."