Democracy Review I

This is a submission for Labour’s Democracy Review, since the hub is, still, not available, I am posting this to my blog, I will send it to the review via email in 7 days, please free to comment over the next seven days.

Introduction

The disciplinary rules and processes need to be reviewed with urgency.

This submission talks of the auto-exclusion process, the joining process, the power of interpretation of the rules the disciplinary process and privacy.

One area of concern in Labour’s Rulebook is the activities and powers of the General Secretary, the Compliance Unit and now the investigations team. Due to the ultra-vires growth of the powers of these teams, there is now a lack of certainty for members on how to complain and how to behave. There is also an unacceptable concentration of power in the Regional Directors.

The number of members complained about at the end of the 2016 leadership campaign  is rumoured to be of the order of 10,000.

Auto-exclusion

Rule 4.I.2.B is currently interpreted as allowing the bureaucracy to automatically expel members on the basis of secret evidence, for undefined acts of support of organisations, other than those deemed ineligible for affiliation by conference[1]. The process around this has been applied in a partisan fashion and the process, even if it has been supervised by the NEC, has been done in secret. Even where the exclusions have been withdrawn, they are withdrawn in bad grace with a so-called final warning.

This is all done, in secret, without a hearing, without being able to challenge the evidence and without an appeal.

Not only is it unjust in that it breaches the rules of natural justice, it denies certainty to members, but it creates a chilling effect on working with community campaign groups.

Rule 4.I.2.B should be abolished. Members who have been auto-excluded should be re-admitted[2], and any warning letters withdrawn. Other rules exist for the disciplining of people who breach the consensus requirement for electoral unity[3].

Now that the rules have been amended to allow disciplinary action to be taken for acts of speech, albeit under Chapter 6 of the rules which determines the means of investigation, charge formulation, judgement and penalty assignment, there is no need for this rule. The 2017 version of Rule 2.I.8 now allows disciplinary action to be taken in cases of racism, harassment, intimidation and discriminatory behaviour and the Party is developing codes of conduct so that members have certainty in defining acceptable and unacceptable behaviour.

  1. Rule 4.I.2.B is no longer required, it should be removed from the rule book
  2. Those excluded under 4.I.2.B should be readmitted.
  3. Codes of Conduct must be in the rule book.

Appendix 2 – joining the party

This is another part of the Labour’s processes with a lack of clarity. The problem is that the rules do not constrain or guide the General Secretary and so the use of judgement to veto applications becomes arbitrary. The ultimate delegation powers of the General Secretary are also a problem, the rules set no threshold of seniority on who is taking these decisions. It is also implied that junior staff decisions inherit the General Secretary’s power of final decision.

A further problem, is that some potential members have been rejected since they recently supported a party other than Labour at an election. A custom and practice has been developed in excluding members unless they have had some form of waiting period, unless they are “crossing the floor” in a council chamber.

The rules currently mandate the CLP to review all new member applications. This may be done by the EC or GC. This process needs to be reviewed to ensure both effectiveness and also compliance with the data protection laws, particularly in those parties with all member meeting governance.

  1. The General Secretary’s power of veto of membership should be constrained by policy which should be placed in the rules.
  2. The policy should define reasons for rejection which might include, serious[4] unspent criminal convictions, proven current membership of a political party or an organisation deemed ineligible for affiliation. These decisions are to be supported by legally acquired evidence.
  3. Rejections are to be made only on receipt of legal advice[5].
  4. The CLP role in rejecting membership applications needs to be reviewed.
  5. New members should not have their recent history of political activism scrutinised, Labour should welcome people with a campaigning history. Their signing the application form is evidence that they have changed their mind and agreed to conform to the rules.

I do not argue for a loyalty test against either Clause IV or the codes of conduct. I believe that the application which agrees that the potential member will abide by the rules is sufficient, unless there is legally acquired evidence to the contrary. In some cases, political activists with a history of supporting causes contrary to Clause IV may need to be interviewed to ensure they understand the rules and acknowledge that they agree to conform to them.

Interpretation of the rules

The NEC[6] subject to the courts has the ultimate duty of interpreting the rules. It delegates many of its powers of interpretation, mainly to Regional Directors.

Due to the role, played by the NEC within the Disciplinary process, the power to determine the meaning of the rules, and to supervise investigations and authorise and fund prosecutions is an unacceptable concentration of power and failure to implement effective segregation of duties.

In a public sphere, the courts have the duty to decide on the meaning of law as well as to try civil and criminal cases.

The Labour Party should emulate this model of a segregation of duties and transfer the power of interpreting the rules to the NCC.

  1. Powers of interpretation of the rule book should be transferred to the NCC.
  2. The NCC may need to be enlarged.
  3. The Secretary of the NCC should be an Officer of the Party and independent of the General Secretary, the Secretary of the NCC must be a qualified professionally accredited lawyer. The Secretary of the NCC must have a duty to provide independent advice.
  4. Powers of delegation from the NCC is to be constrained by rules.

The disciplinary process

All other disciplinary matters are defined in Chapter 6 Disciplinary Rules and Appendix 6 Procedural guidelines in disciplinary cases brought before the NCC. There are to my mind a number of problems with the LP’s disciplinary rules.

Principles of Behaviour

The first is that no overarching duty of care and good behaviour is defined for role holders in the Labour Party. The Nolan Principles should be written into the rules to allow the Labour Party confidence that actions taken under disciplinary rules, and ordinary governance decisions are taken in good faith.

Making a complaint

Nowhere, outside chapter 6.II Actions by CLPs do the rules describe how to make a complaint, where they are told they must write to their CLP Secretary. There is no documented way to complain about a member of another CLP, such as an officer of the LCF, or a member of staff in Regional Office, or a guest speaker at a meeting, although the rules imply that one needs to write to the GS, or a designated alternative. The list of designated alternatives is not published. Correspondence can easily be, and often is, lost.

Transparency, Privacy & Velocity

There are three problems with current practice related to transparency of the process, for both accuser and accused, privacy of the process for the accused, and the velocity of the process and conclusion. Both of the latter issues are aggravated by the high number of suspensions issued while investigating, and in high profile cases, the leaking of the suspension pending the hearing.

Complaints being lost, or being withdrawn under pressure is a clearly documented problem. Independence of the complaint handling process needs to be assured and would be part of a control on these problems, although would not address velocity. I am unclear if the slow speed of some complaints is down to the bandwidth of the NCC and/or its secretariat, the latter who seem equally busy auto-excluding members or suspending parties.

Segregation of Duties

Apart from the independence of the whole complaint handling process, a segregation of duties between receipt, investigation, prosecution, hearing, appeals and penalty needs to be established. I suggest that an enlarged NCC with dedicated, professionally qualified staff is the appropriate body and that the ideas of independent reporting organisation as suggested in the new statement on the treatment of sexual harassment complaints may be worth establishing in the rules.

In a section above I mention the need to establish a strong segregation of duties in the disciplinary process. The delegation of powers by the General Secretary, and the delegation of powers by the NEC have led to the situation where the Regional Directors act as complaint receivers, investigators, judge & jury, mainly in secret. This secrecy and lack of accountability needs to be ended. Justice needs to be seen to be done. It must be mentioned that there is no means of accountability or recall for the General Secretary who plays a central role in the disciplinary process.

A further potential misuse of the overconcentration of powers, is that the NEC is meant to be a control on the General Secretary and his or her staff yet there have been cases where NEC members have been suspended while investigations are undertaken. NEC members may require protection against malicious use to the disciplinary process. It should be noted that they only serve a two year term of office. The use of such protections is quite common in law, for instance in whistleblowing processes which guarantee that no revenge will or can be taken against whistle blowers.

Chain of Command

A review of the disciplinary rules must consider the establishment of both grievance procedures and whistleblowing, particularly in the context of Labour Groups. Just as it is not appropriate that all complaints, even those involving the General Secretary pass across his or her desk, it is not appropriate that a Labour Group Leadership controls the handling of complaints against itself. A review of the disciplinary rules should consider if the new rule, Chapter 13 Clause II 2. A Aims and Values, prohibiting Labour Councillors voting against a Labour Group proposed budget is in fact an additional tool in covering up potential criminal problems. This may be a particularly acute problem in executive Mayor led authorities, where the Mayor has the legal power of initiative.

These Labour Party and Labour Groups need grievance and whistleblowing processes.

Proportionate Pursuit

There are reports that a disproportionate expense is incurred in pursuing complaints, in particular legal costs incurred in the development and presentation of “charges”. The inequality of access to funds is, as Labour argues in Parliament, justice denied. The General Secretary, and his or her staff should conduct a proportionality test when preparing[7] cases for the NCC hearings, and consideration should be given to funding defendant’s legal costs. Another protection to the Party and the membership would be for the decision to prosecute to take into account, as do the CPS, a public interest argument. This would need to be written into the rules.

Within a CLP

The Chapter 6 Clause II process, on CLP complaint handling is worse, it’s cumbersome, politically charged, and impossible to keep private in the case where someone is either innocent or found not guilty. It’s rubbish and must be changed. (It’s worse in the case of all member’s meetings managed CLPs, imagine the convening notice, and some parties now have several 1000 members). I’d be interested in how many times it’s been used and how often it’s been used to avoid reference to the police.

Penalties

The definition of penalty durations in the rules is in many circumstances too long, particularly given some of the trivial offences leading to 4.I.2.B auto-exclusions. The custom and practice of requiring new members to have not supported another political party for a period of time, unless they are crossing the floor of a council chamber, should be abolished.

It should be made clear that under no circumstances should life time expulsion be considered to be proportionate[8].

Miscellaneous

The rules are silent on the duty of care to complainants, & alleged culprits.

The rules are silent on a question of standing. This is complex but surely, they must have been the victim or a witness to the action being complained about.

Conclusion

This all leads to a lack of certainty for ordinary members and even councillors.

It should be noted that all record keeping for the disciplinary process is open to data protection subject matter requests, and that record keeping is required for those expelled also.

  1. The Nolan principles must be written into the rule book and all voluntary and full time officers of the Party must commit to be bound to them.
  2. An independent complaints receiving organisation may need to be established, or outsourced. (NB the appointment of independent scrutineers for national elections is a model as are the proposals in the Anti-Sexual Harassment policy ).
  3. The rules need to define how a member can make a complaint, and what, if any standing they require to make the complaint. It needs to define who a complaint must be addressed to.
  4. The disciplinary process must be both transparent to the complainer and the membership and provide reasonable privacy to the accused, particularly where the accused is found to be innocent.
  5. The use of suspension while under investigation should be constrained by the rules.
  6. The Secretary of the NCC should be an Officer of the Party and independent of the General Secretary, the Secretary of the NCC must be a qualified professionally accredited lawyer. The Secretary of the NCC must have a duty to provide independent advice. [9]
  7. The disciplinary process must establish strong rules[10] on the segregation of duties between complaint receipt, investigation, decision to prosecute, judge & jury, penalty assignment and appeal.
  8. The rules should be revised to create an independent complaints process dealing with the Officers of the Party, including the General Secretary; similar rules need to be in place for equivalent senior officers or public officials in the nations’ governments and party organisations and in local government.
  9. NEC members require protection against malicious use of the disciplinary process.
  10. The establishment of a grievance procedure/process allowing for the exclusion of the accused and their management from the complaints process.
  11. The establishment of a whistleblowing procedure/process allowing for the exclusion of the accused and their management from the complaints process and a commitment to no revenge[11].
  12. Decisions to prosecute must be proportionate and in the greater interest of the Party.
  13. A defence at the NEC disputes committee and the NCC should be funded by the Labour Party
  14. Review the impact of the new rule Chapter 13 Clause II 2. A on whistleblowing in council groups, and consider repeal.
  15. The review should consider abolishing the CLP complaint handling process.
  16. Ensure that record keeping meets the needs of the Data Protection Act and the coming GDPR.

Privacy

Throughout the rules and the developed custom and practice there is no statement of the duty of privacy to either the accused or victims, where the victim is an individual. There is some difficulty here in that the normal principles of natural justice is that courts and court processes are open; police investigations are not although once someone becomes a suspect, they need to be told and miranda rights explained. An accused has the right to see the evidence against them. In serious cases, the Party’s duty to refer complaints to the police must be made clear.

Being able fulfil this need for privacy and discovery strongly implies that an application system[12] is required to handle complaints and discipline. Such a system would be able to have data leakage policies and access controls placed upon it. It would also enable[13] any GDPR record keeping requirements, i.e. to prove that only those entitled to read this personal data have access to it.

The need to perform defendant discovery strongly implies that all relevant role holder’s email systems must be within the Labour Party’s mail domain. How otherwise can an email search be performed that is known to meet both the needs of subject matter access requests and effective defendant discovery.

  1. The rules need to state the rights of privacy for any accused, this needs to take into account the principle of “innocent until proved guilty”.
  2. The Party’s duty to refer complaints about criminal breaches of the rules to the police should be made clear.
  3. Compliant handling should be managed by an IT application system to which “adequate technical & organisational protection” had been applied.
  4. Labour Party role holders must be given labour party mail addresses; access to these will be subject to the agreement to an Acceptable User Policy.

ooOOOoo

[1] Actually, the rule defines unacceptable organisations more broadly than this, creating both an inconsistency in the rules, and increased uncertainty.

[2] Any reasons for exclusion that may be still extant, can be handled using Chapter 6 procedures.

[3] Possibly the rules should exclude people for membership of an organisation registered as political party with the Electoral Commission and/or supporting their campaigns rather than leave the definition of unacceptable organisations undefined.

[4] Care needs to be taken on this rule as the government is moving towards a definition of serious as an offence warranting a 6 month prison sentence; also some crimes of civil disobedience should be considered acceptable.

[5] I argue that the whole disciplinary process needs access to legal advice and skills. I envisage this as independent of the General Secretary, but probably an in-house lawyer.

[6] Except while conference is sitting.

[7] Elsewhere in this paper, I argue for strengthening the capability of the in-house legal team.

[8] The case law around this is extensive; the problem is that penalties without review ignores both remorse and rehabilitation.

[9] This is repeated, the independent, legally qualified advice is needed both for the determination of the meaning of the rules and for the determination of complaints and cases.

[10] This must not be subverted by the NEC & General Secretary’s powers of delegation, and the additive effect that these two routes of delegated power create.

[11] Not easy in a democratic organisation, we may have to trust the membership, even in factions to support the law before the Party or their factional loyalty.

[12] The surrounding controls on email are not good enough to meet the needs of natural justice nor that of GDPR record keeping.

[13] It would also make the requirement to encrypt traffic on the internet easier to enforce.

Image Credit: @flickr European Parliament CC 2010 BY-NC-ND

  1. Some has pointed out to me that the process by which a charge is agreed, involves an investigation, legal advice to formulate a charge and two meetings of the Disputes committee of the NEC, one of which may take evidence from the accused and their legal team. All this makes a defence very expensive. We might want to place a cap on the expense, or guarantee the funding of a defence. It’s further evidence that the NCC needs independent legal advice, i.e. independent from the prosecutors.

  2. Three left members of the NEC have been recently been charged with disciplinary offences and suspended. In Ken Livingstone’s case, he was forced to stand down as a candidate for the NEC. While all members deserve protection against malicious complaints, the NEC’s role in controlling the General Secretary and their staff, suggests that perhaps, as I propose for the GS, a different process and threshold should be set for NEC members. (I recognise that this is now more complex since the amendment to 2.I.8)

  3. Is this strong enough on the right to privacy before charges are agreed?

  4. The transfer of rules interpretation from NEC to NCC needs to be more strongly stated.

  5. I have added text on the transfer of powers, a right to privacy, the weaponisation of the disciplinary process against the NEC, and on proportionality and funding.

  6. I suppose I should add protection from malice to the NCC also.

  7. The unstated truth is that there has been a concerted campaign to use the disciplinary process for political and personal gain.

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