… of the Democracy Review
This is a report on the debate at the Democracy Review. It is best read in conjunction with Conference Arrangements Committee (CAC) Report 1, pages 28 to 55. This article describes the proposals, the debate and how I voted. The packages covered member’s rights, local structures, regional structures, national structures, Leadership elections, the National Constitutional Committee (structure and remit) and Westminster selections. The rest of this blog is below/overleaf …
The Democracy Review was grouped into eight packages, these covered,
- Member’s Rights, which basically codifies the longevity requirements for [s]election as a candidate or to internal office, restates the need to belong to a Union, reduces the longevity required to stand as a delegate to conference. It also introduces a right to dignity and respect and a duty for all party officers to behave fairly. (Not quite Nolan though!)
- Local Structures (CLPs & Branches), defines the means of changing from branch & delegate to all member’s meeting governance, reduces the quorum and places further variations in the hands of the Regional Boards not the Director, requires the NEC to define its criteria by which it puts CLPs into special measures, mandates equalities branches inc. youth, reconstitutes the CLP ECs, mandates branch women’s officers, permits job shares, and proposes a new rule on meeting cadence. The legal authority of the EC is reduced placing it under the authority of the GC/AMM. The package also authorises multi-constituency parties and talks about using IT to maximise participation. All constituency documents, are to be available to all members via a clockwork platform, sorry, I made it up, an electronic platform, “provided by the Party”; I hope that’s the national party as I have thought hard about this and creating a shared disk is not hard, managing the ACL is.
- Regional Structures, they are reverting the name of the elected body back to Regional Executive Committee, Regional Rules are to be now owned by the NEC and published in the rule book, Regional Conference is to have rulebook approved standing orders, equalities committees and similar bodies to be responsible to the Regional Executive Committee not the NEC and appropriate rules to be developed to ensue that candidates and Labour officials most appropriately accountable through Regional Executive Committees are managed as such
- National Structures: NEC, creates rules for the representation of Young, BAME, & disabled members using an electoral college of 50% members expressed through OMOV and 50% via affiliates, Scottish and Welsh represetation with rules passed to the Scottish and Welsh Conferences and the European Parliamentary Party representation on the NEC. It establishes the rule that NEC vacancies will be filled by bye-elections and critically that the rule changes at Conference 2018 will be current from the day following Conference.
- National Conference, establishes an additional disabled member of CAC, deltes the requirement that motions be contemporary, increases the motions to be debated to 20, new woman’s, youth , BAME & disabled members conferences and other representational structures
- Leadership Elections, changes the nomination threshold where a vacancy occurs (this now requires 10% of the PLP and 5% of the Unions or 5% of the CLPs), requires CLPs to hold all members meetings to make leadership nominations, we might need a fucking big room, and some statement which I can’t understand about the freeze date; I hope its an improvement, They aslo propose to constrain the acting leaders role in cases where one one occurs.
- the National Constitutional Committee (NCC), proposes to increase the size of the NCC, sets a 3 month deadline for hearings, establishes a broader list of penalties inc. reprimands & warnings, leaking of confidential information is to be considered conduct prejudicial etc., as is breach of codes of conduct, the power to suspend and investigate may be delegated (possibly to 3rd parties) and the rules on CLP disciplinary procedures are to be reviewed and amended subject to conference 2019 approval.
- and, finally, Westminster Selections where the NEC proposed to reform the trigger ballot by placing a threshold of 70% on the vote required to avoid a selection and counting the votes of affiliates separately from the party branches and requiring 70% in both classes. (This means that a 30% vote for a selection in either branches or affiliates will ensure that the selection takes place.) NB There is space for the application of Demorgan’s Law here,
See 1 – The new rule says, “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.” Not exactly the Nolan Principles but a step forward.
See 2 – Some of these rule changes are problematic and to my mind not well written, it is an area where having more that 16 hours notice and the ability to amend the rule changes would have been good.
See 4 – C1.X.4.6.F All bodies subject to this rule book shall without delay bring their rules and standing orders into compliance with rules created in order to give effect to the Democracy Review, and their rules and standing orders shall immediately be read as if such amendments as are therefore necessary have been made. Oops! What about inflight AGMs? Also some activists opposed the electoral college for elections of the BAME & disabled representatives.
See 6 – Leadership nominations must be by all member meetings and not by delegate based General Committees.
I note that with package 7, the NEC have sneaked in changes to the disciplinary process, although we can assume that since they excluded this from the remit of the disciplinary review it will not be based on grass roots submissions, although I made my views clear. Some people are worried that the power to suspend and investigate complaints can be outsourced but we have started this process with the Code on Sexual Harassment, where the investigatory process is to be undertaken by a 3rd party with a proven track record of victim care; there is also an argument that the Labour Party needs a greater segregation of duties in its disciplinary code.
Other areas of concern that Conference has given the NEC powers to change some of the Rules subject to confirmation by next years Conference. This is a breach of the Rules’ separation of powers, where Conference makes the rules and the NEC interpret and enforce them although there are plenty of rules in place that say the detailed implementation of the rule are to be defined in an NEC procedural guidelines, often secret or distributed on a need to know.
The failure to circulate these rule changes until Sunday morning is a problem. I am sure the quality and maybe even some of the direction might have been different if delegates had had time to properly digest these proposed rule changes. (There may be a conflict in the rules carried over the issue of membership longevity in order to stand for the NCC.
The debate focused on packages 6 & 8. In particular supporters of trigger ballot abolition were arguing to vote against proposal 8 which is a trigger ballot reform in order to permit a debate on their proposal which was scheduled to be heard on Tuesday, but only if package 8 fell. Momentum changed their mind, from supporting the CAC reference back earlier in the day, in order to debate Open Selection, to support package 8 which would reform the trigger ballot. One could assume that that the best the open selection supporters could get in the vote is the 46% they’d won earlier in the day and voting down proposal 8 might have jeopardised any reform for the next 4 or 5 years.
Some argued against package 6, Leadership Nominations which has the effect of making it harder to get on the ballot paper than the current rules.
On social media, some argued that package 7’s delegation clause i.e. permitting the delegation of investigations would be used factionally.
We had agreed to vote individually after listening to the debate, I voted against the CLP reforms (P2) and against the Leadership Nomination proposal (P6) and voted for the Trigger Ballot reform proposal (P8) as well as voting for all the other packages.
It all passed!
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I was asked to reprise this article and felt that my analysis of Package 7 was missing some critiques made by comrades of mine, This was written by someone else. He or she is a lawyer.
This rule as drafted has numerous problems. Firstly, the qualification, “in the opinion of the NEC” is imprecise in circumstances where in any dispute as to whether member has breached the rule it is the NCC that makes this determination, which is likely to be in almost all cases. The NEC is instead separately responsible for the laying of disciplinary charges before the NCC.
The next concern is “The NEC shall take account of any codes of conduct currently in force…” this phrase also appears at the bottom of the sub clause where the NCC is also bound by any “agreed codes of conduct”. This seems to allow by the back door an excessively wide scope for additional disciplinary rules to be imposed solely by the NEC. The power balance within the Party constitution is predicated on relationships between Conference as the supreme rule making constitutional body, the NEC as the supreme administrative and management body and the NCC as an independent supreme disciplinary body. This dramatic new NEC disciplinary power drives a coach and horses through that power balance.
The almost unlimited power being granted here to the NEC to create new codes of conduct that both bind itself and the NCC is a dramatic extension of NEC power. Some hypothetical examples: what is to stop the NEC producing a code of practice that states that any criticism of outsourcing of public services is unacceptable, or the free market in general, or PFI etc? Obviously in the current political climate these examples are very unlikely but it is theoretically possible and through the mechanism of rule 2.I.8 is then potentially enforceable on members through the disciplinary process. This effectively grants to the NEC the power to set the parameters of acceptable opinion or beliefs held or expressed by members. The reality of a reasonable degree of freedom of expression and open debate within the Party could potentially become a hollowed-out shell. Obviously, nothing suggests the current NEC would have intent to do any of this but in designing a constitutional system and weighing up what authority to give a strong concern should be not what happens if a benign ruler has control but what could happen if a draconian authority had this power.
Another very serious concern with the current rule 2.I.8 is that instead of a broad discretionary authority to make a determination the NEC and arguably the NCC are severely limited, in a large number of cases, by rule 2.I.8 which states “and shall regard any incident which in their view might reasonably be seen to demonstrate hostility or prejudice based on age; disability; gender reassignment or identity; marriage and civil partnership; pregnancy and maternity; race; religion or belief; sex; or sexual orientation as conduct prejudicial to the Party…”. This is a far more constrained authority and the central discretionary question to be answered by either body is no longer the broad objective question: was this members conduct prejudicial to the Party?
Instead this is replaced by the very the narrow question of whether it “might reasonably be seen to demonstrate hostility or prejudice…” to one of the listed characteristics. The problem is that this appears to be being interpreted as meaning that where the subject of the conduct at issue feels they have been offended this is sufficient. Effectively the issue has been changed from a reasonable objective assessment being made by the NEC, or NCC, about the content of the conduct in question to a narrow and purely subjective assessment of how the recipient perceives it. Once this question is answered in the affirmative the question of whether it is actually conduct that is prejudicial to the Party is not open to any discretionary determination by the NEC or NCC and is automatically decided against the defendant.
The manifest danger of this is obvious as conduct with no hostile or prejudiced intent and which an objective 3rd party might determine was not hostile or prejudiced could quite easily still be found to be subjectively offensive to the recipient and hence it “might reasonably be seen to demonstrate hostility or prejudice” and amount to the disciplinary offence of conduct prejudicial to the Party which is capable of leading to expulsion.
This particular provision also arguably offends against the common law principles of natural justice in the form of Audi alteram partem. – “let the other side be heard as well”. A member cannot be disciplined without the opportunity of being heard in his defence, Wood v Woad (1874) LR 9 Ex 190, 196; Lapointe v L’Association de Bienfaisance et de Retraite de la Police de Montreal [1906] AC 535 (PC). The tribunal has a duty not to convict a person of a grave offence which may lead to expulsion, without allowing that member a fair opportunity to meet the charge, Fisher v Keane (1878) 11 Ch D 353 (Ch).
In the current rule 2.I.8 the substantive offence for which you are potentially being expelled is conduct prejudicial to the Party. If, however the conduct relates to the question of whether it “might be reasonably seen to demonstrate hostility or prejudice based on…” a protected characteristic and if this is automatically conduct prejudicial then you are not being given any genuine or real opportunity to meet the substantive charge. You can make representations about what might reasonably be seen as demonstrating hostility or prejudice but not whether it objectively actually does or is conduct prejudicial to the party. Arguably the opportunity to meet the charge is constrained and effectively displaced to an entirely different discretionary question such that you have no real opportunity to offer a real and substantive defence to it.
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