Tim Wilkinson reports…

Tim Wilkinson speaking at 2021 Labour Conference.

2021 Labour Conference Report 

A.  Notes on the EHRC rule changes

The ‘CAC 2’ report providing delegates with their first sight of the Day Two rule changes was circulated by email at 8.15am on the day.

They ran to 37 pages of intricate and highly technical writing, the effect of which could only be determined by careful cross-referencing with each other and with numerous provisions in the current rule book. The task was made more difficult still by incorrect cross-references, and inconsistencies between the described amendment and the post- amendment text.

With Conference proceedings starting at 9:50 am, and just over an hour and a half’s recess at lunchtime, this meant that even before allowing for travel, queuing and eating some lunch, delegates had barely more than three hours’ free time to consider them.

In view of the extreme complexity of the subject matter, this is plainly inadequate, and any delegate would be entitled to – arguably, required to – withhold support for rule change proposals that they have had so hopelessly inadequate an opportunity to assess.

Nonetheless, this report will focus on the merits of one particular group of rule changes which the NEC chose to bundle under the title ‘EHRC’. This is because remarks have been passed attacking the moral integrity of delegates who declined to support this group of rule changes, specifically on the basis that they constitute a ‘bare minimum legal requirement’ mandated by the EHRC.

A.1  ‘Bare minimum requirement’ claims

The rule changes are widely described as the ‘legally required bare minimum’ response to the EHRC’s recommendations.

Wendy Nichols, moving the rule changes:

“one of the key recommendations arriving out of the EHRC’s report was that the party implement an independent complaints process.

As a result the NEC unanimously agreed an action plan with the EHRC that, amongst other things, commits us to establishing an independent process … Conference, this group of constitutional amendments delivers that independent process along with the other recommendations and [sic.] we are legally required to implement if we are to reform our processes, correct the unlawful acts we have committed and rebuild the trust we lost…”

Ruth Smeeth (JLM) – first speaker:

“These rule changes do the absolute legal minimum to make the labour family a safe space for every minority so if you’re an anti- racist, if you believe in equality, if you want the scourge of anti- semitism to be removed from our party, then you have to vote for these rule changes.”

A.1.2 ‘Bare minimum’ claims rebutted

Shabana Mahmood, who spoke on behalf of the NEC said:

“conference, this package of constitutional changes delivers on the legal minimum that we are legally required to implement to satisfy the requirements of the EHRC’s report”.

More clearly than Wendy Nichols’ remarks, this avoids stating that the rule changes are the bare minimum, and instead says that they ‘deliver on’ the bare minimum. This is of course consistent with going considerably beyond that ‘minimum’.

Later on in her speech, Shabana Mahmood seems to suggest that the rule changes might actually represent a compromise between the EHRC’s requirements and the Party’s constitution: “the independence introduced strikes the right balance between our constitution and the legal requirements of the EHRC’s findings”. This would appear to suggest that the rule changes might actually fall short of satisfying the EHRC’s requirements! The issue is, to say the least, unclear.

In fact the legal requirement imposed by the EHRC’s recommendation was only to come up with an ‘action plan’ that the EHRC could then approve and monitor the implementation of. The Party was free to come up with any proposal and the EHRC could then certify that it achieved what they wanted. There was no unique set of proposals that the EHRC report laid down, and there was no requirement that the action plan should consist of the ‘bare minimum requirement’. In addition, even if the Party had agreed an unworkable or otherwise unwise plan, for example one that required rule changes that could not be passed, the plan could be varied by agreement and the EHRC could not unreasonably withhold its agreement.

 The Labour Party’s Action Plan actually contained two options, one of which (the ‘big bang’) would require rule changes and the other of which (the ‘mosaic’) would not. Even according to the plan devised by the NEC then, it was not in fact necessary to pass these, or any other, rule changes in order to satisfy the rather modest recommendations of the EHRC.

A.2  The ‘Independent’ complaints process

The EHRC’s recommendation for an independent complaints process arose from its finding that while Iain McNicol was General Secretary, staff habitually sent requests for input (which in fact appear to have been unsolicited) to the Leaders Office, and that the Leader intervened to try to speed up (not to block or reject) some complaints, including antisemitism complaints. This latter was held to discriminate in favour of Jewish complainants.

Both of these occurred at the processing phase of Complaints handling, conducted by Party staff, notably the Governance and Legal Unit (GLU), under the direction of the General Secretary. The rule changes introduced by the NEC do not address this crucial and under-scrutinised phase of the process at all.

Instead the rule changes focus on transferring powers away from the NCC. This is particularly inappropriate in view of the fact that the current rules preclude the NCC from taking account of the process by which a complaint reaches it. This means that no matter how biased or unfair the behaviour of the Party bureaucracy in the crucial initial phase might be, the NCC must ignore it in reaching its decision. This could have been corrected in these rule changes but was not.

A.2.1  The NCC

The NCC, unlike the General Secretary’s staff, was not found to be tainted by bias or political interference. In fact, the NCC appears in this respect to be unique among elements of the Party’s complaints apparatus, since in Williamson MP v Formby ([2019] EWHC 2639) the NEC was found to have failed to conduct itself impartially and fairly and to have interfered unlawfully in the complaints process.

This is unsurprising, since the NCC is a quasi-judicial body dedicated to the sole function of determining complaints impartially and free from interference. Appendix Six of the rule book contains detailed procedural rules for the conduct of NCC hearings.

For reasons that will become clear, of particular interest are the rules concerning the selection of panels:

A6.12	On presentation of a charge, the NCC Secretary will report the charge to the Chair and Vice-Chair of the NCC. As soon as practicable after presentation of a charge, the NCC Secretary, after consulting with the NCC Chair (or Vice-Chair if the Chair is unavailable), will appoint a three-member panel to determine it. The following provisions apply to membership of panels:
A6.12.A	As required by Rule 1.IX.3.C, a panel must include at least one member from each of Divisions I (trade unions) and III (CLPs).
A6.12.B	Each member of the NCC is to have an equal opportunity, and obligation, to act as a member of a panel as often as required to ensure the timely determination of charges referred to the NCC. But that obligation is subject to paragraph 13 (recusal). Account must also be taken of the differing personal circumstances of members, including their employment situation and (in the light of the likely venue for a hearing) their place of residence and any additional needs.
A6.12.C	In appointing a panel, regard must be had to written guidance issued by the General Secretary, NCC Chair and Vice Chair on the composition of panels. The guidance must contain provision designed to ensure that each panel includes, so far as practicable, at least one member sufficiently experienced to act as panel chair, and that account is taken of the desirability of the panel reflecting the diversity of the NCC as a whole.

A6.12.D	As soon as possible after their appointment, the panel will appoint one of their members to act as panel chair.
A6.13	Members must recuse themselves from a panel if, at any stage during the proceedings on a charge, facts are, or become, known to them (other than as a result of a request for recusal of a member) which would lead a fair-minded observer to conclude that there is a real danger that the member would be biased in favour of the NEC’s or respondent’s case, or would not determine the charge with an open mind. Examples of such facts include:
A6.13.A	the member is closely associated with the respondent, complainant or a witness (for example, a close friendship or a close family or business relationship);
A6.13.B	the member was previously involved in the events to which the allegations relate.
A6.13.C	Previous participation as a member of the NCC in an earlier stage of the proceedings, or in proceedings on a charge involving the same individuals or similar allegations, does not in itself result in the appearance of bias or a closed mind.
A6.14	Paragraph 12 applies to the replacement of a member who is recused or otherwise unable to continue to participate in a panel.

A.2.2  The new rules

Since there did not seem to be any need to revise the role of the NCC in the disciplinary process, it is remarkable that the main effect on existing structures of the EHRC rule changes was to reduce the number of cases likely to be assigned to the NCC, and to increase the influence of the NEC – the party executive – in the process.

The new rule 6.1.I includes one of the most serious apparent mistakes in drafting: rule 6.1.I.D.ii states

“In relation to any alleged conduct or behaviour by a member to which Chapter 6.I.1.D does not apply…”

Which means the remainder of the rule – which would provide one route for referring cases to either the NCC or the new ICB (explained below) can have no effect since, paradoxically, it applies only to matters to which it does not apply! Even if this could be corrected, it is not entirely clear whether the reference to 6.I.1.D would be taken to apply to 6.I.1.D.i or 6.I.1.E.

In any case, there are still a number of references in the new rules to referring matters to ‘the NCC or ICB’. The choice between the two seems to be a matter of discretion for the NEC and in some cases possibly the General Secretary. Furthermore, some or all of these references to the NCC may be illusory, given that from 2022 the new NCC rules will state:

1.IX.2b.D. The NCC may not hear or determine any matter that could be determined by the ICB under Chapter 1.XI.

A.2.3  The new complaints assessing bodies

The new bodies are:

• an ‘Independent Review Board’, appointable by the General Secretary subject only to the requirement that its members be legally qualified. Its function is to ‘review’ disciplinary decisions of the NEC and its Disputes Panel, and to review any other aspect of the disciplinary process. The IRB does not hear appeals, but can declare that the NEC has or has not abided by the rules and guidance. The only outcome of a review is that the IRB reports to the NEC and General Secretary, who presumably then decide what to do next. This might perhaps include re-hearing the case once they know what not to do or say, or referring it to the ICB (see below), or something

Crucially, the General Secretary decides when to call on the IRB to exercise any of these functions, and can pick which member or members will do so. Since all it does is give a legal opinion and report back, the IRB’s main function in reality seems likely to be to forestall potential legal challenges by either (a) certifying a decision as in accordance with the rules – which even if its opinion (which may even be protected by legal advice privilege) is dubious, is likely to make the decision hard to challenge or (b) conceding that the decision was unlawful but giving the NEC another bite of the cherry. It could also, conversely, be called on to overturn inconvenient decisions. The fact that it would be within a General Secretary’ power to ‘take a punt’ on getting such an outcome in selected cases represents a subtle source of potential bias within the disciplinary process.

• a ‘Standing Recruitment Committee’ appointed by the General Secretary subject to no restrictions at all. The SRC appoints the ICB (below). It may appoint the IRB (above) instead of the General Secretary doing so, but there is no indication as to when or why it would do this, and it seems likely that it will only happen if the General Secretary so decides.

The General Secretary has reportedly chosen a Standing Recruitment Committee of six, consisting of: crossbench peer Lord Bob Kerslake, Labour peer Baroness Margaret Prosser, Dame Louise Ellman, Councillor Farah Hussain (London Borough of Redbridge), Councillor Asher Craig (Deputy Mayor of Bristol) and Councillor Bev Craig (leader designate, Manchester City Council).

• an ‘Independent Complaints Board’ consisting of four lawyers and four HR professionals, none of these eight having been members of any political party in the past five years, and four applicants who have been members of the Party for the past five years and have spotless disciplinary records. These twelve members are selected by the Standing Recruitment

The NEC can choose to refer any case to the ICB, either in its entirety or just to decide what sanction to impose. So far as the new rules say, this could include one of the few cases that would still be on course to be heard by the NCC, and maybe even cases that are already in the process of being heard. The SRC completely takes over the NCC’s role in hearing appeals against NEC/Disputes Panel decisions that have come through the GLU. If it upholds an appeal however, it does not clear the member of the charges as the NCC would do. Instead, it sends the case back to the NEC to try again.

It should be clear from this summary that the new rules place a great deal of discretionary power in the hands of the General Secretary and that the elaborate new apparatus operates largely at the direction of, and in a way which does little to control the power of, the NEC. It seems quite perverse that an ‘independent’ complaints process should place more power in the hands of the executive, and the bureaucracy: all the more so since these are the two elements of the process that have actually been found to be subject to improper influence.

A.2.4  Breaches of basic principles

The features of the system examined so far have the character of discreet ‘nudges’ and subtly deviant pathways that undermine the apparent independence of the system.

Two further features of the new process appear more clearly and openly to breach basic principles of judicial (or as in this case, quasi-judicial) independence.

A.2.4.1  Panel Selection

The members of the ICB are, according to the process as laid out in the rules, not directly appointed by the General Secretary. A layer of indirection is supplied by the SRC. The General Secretary appoints the SRC and the SRC appoints the members of the ICB. This may or may not make a huge difference in practice – it’s not hard to imagine a General Secretary picking a group of people like-minded or biddable enough to ensure only ‘acceptable’ outcomes – but at least it’s something. Unfortunately, the General Secretary has much more direct influence than that.

Cases are decided not by the ICB as a whole, but by ‘Independent Complaints Panels’ of three members – one each from the lawyers, HR and Party members sections. These ICPs operate by majority vote so any coalition of two members can control the panel.

In the case of appeals against NEC disciplinary decisions (which under the new 6.1.H are made to the ICB instead of the NCC) there is an additional step: a member of the lawyers section of the ICB reviews the appeal and can summarily reject it (but not uphold it) before it is even considered by an ICP.

The crucial factor is that the General Secretary gets to choose who, from within each section, will be on the ICP (or which lawyer will review an appeal), on a case by case basis. Beyond the requirement that the panel must comprise one member from each section, there is no further limit or constraint on the General Secretary’s discretion to select panel members. This is in marked contrast to the detailed rules on composition of NCC panels quoted above.

This discretion – exercisable in full knowledge of the details of the particular case under consideration – gives enormous power to a General Secretary, who by selecting two panel members (or one reviewer of an appeal) that can be reliably predicted to decide in a certain way, could in effect control the outcome.

Note that this observation concerns the integrity of the process and not of any individuals. Under a process of this kind, improper political control can – and is likely to – develop without any conscious bias or bad faith, and certainly without the need for any explicit collusion.

In any case, it seems quite clear that having a member of the executive hand-picking judges to hear individual cases is well established to be contrary to basic principles of judicial independence:

Lady Hale – Judges, Power and Accountability: Constitutional Implications of Judicial Selection:

• pp.17-18: Choosing who should be a judge is not the whole story. Choosing which judge or judges should hear which cases is less discussed but also raises constitutional issues. It is one thing to choose ‘horses for courses’ – the most suitable judge to hear the particular case. It is quite another thing to choose the judges most likely to decide the case in a particular way…
• We like to think that the outcome of any particular case is determined by the law and the evidence and not by the predilections of the individual judge. We like to think that we are not predictable in the way in which we will decide the hard cases where the outcome is not clear. But we cannot have it both ways – we have already accepted that it matters who the judge is…

• In the Supreme Court of the United Kingdom we sit in panels…We have once sat eleven, all the serving Justices. We did that so that no-one could say that the result would have been different had the panel been different. Determining the panels is ultimately the responsibility of the President of the court, but there are safeguards to deter him or her from any attempt to pack the panels. The lists are drafted in the first instance by the listing officer, who chooses the dates, and the Registrar, who chooses the panels, using a combination of ‘horses for courses’ and random selection of non-specialists. These are then considered and approved by the President and Deputy President together. So the list is not the work of one person alone and others should be able to spot if anything untoward were going on.

UN basic principles on the independence of the judiciary:

14. The assignment of cases to judges within the court to which they belong is an internal matter of judicial administration.

Venice Commission – Report on the independence of the judicial system, part I: the independence of judges:

Judges or judicial panels entrusted with specific cases should not be selected ad hoc and/or ad personam, but according to objective and transparent criteria.

Committee of Ministers of the Council of Europe – Recommendation CM/Rec(2010)12 on judges: independence, efficiency and responsibilities:

24. The allocation of cases within a court should follow objective pre-established criteria in order to safeguard the right to an independent and impartial judge. It should not be influenced by the wishes of a party to the case or anyone otherwise interested in the outcome of the case.

A.2.4.2  Removal of ICB members

The new rule 1.XI states:

• 9. The NEC shall issue procedural rules and guidance that must be followed by the Independent Complaints Panel.
• 11. The Independent Complaints Board Members shall each have terms of not less than two years but may be removed by the General Secretary if they are found to have breached the Independent Complaints Board Code of Conduct.
• 15. An Independent Complaints Board Code of Conduct may be issued as the NEC sees fit from time to time.

This allows the NEC to devise and constantly revise its own rules for how ICB members should conduct themselves, and the General Secretary single-handedly to enforce them. Conference has no input into these additional rules or principles. In practice a great deal depends on what the NEC chooses to put into this code and how vaguely it frames its terms.

Any such code of conduct will almost certainly include a requirement to adhere to the NEC guidance mentioned in 1.XI.9 above, so it is almost inevitable that the threat of summary removal will to some extent apply to the way in which ICB members conduct and decide cases. ICB members are unlikely to be engaged under employment contracts, so they would have little recourse – should they even wish to be seen to ‘make trouble’ by challenging their removal – if they were removed because they were perceived as producing the ‘wrong’ outcomes.

Again, in assessing the integrity of the process, it is necessary to consider what the rules allow, rather than guessing whether any particular NEC or General Secretary will exercise restraint in framing the Code of Conduct. Independence that can easily be interfered with is not really independence at all. As the final quote below makes clear, rules that could remove a judge (or one of our ICB quasi-judges) should be laid down in the most basic rules, not in changeable codes devised by the executive.

Lady Hale – Judges, Power and Accountability: Constitutional Implications of Judicial Selection:

• p.13 …The terms and conditions of appointment are also important. Length and security of tenure mean that judges are not looking over their shoulder in fear of removal if they make unpopular decisions.

UN basic principles on the independence of the judiciary:

• 2. The judiciary shall decide matters before them impartially, on the basis of facts and in accordance with the law, without any restrictions, improper influences, inducements, pressures, threats or interferences, direct or indirect, from any quarter or for any reason.
• 12. Judges, whether appointed or elected, shall have guaranteed tenure until a mandatory retirement age or the expiry of their term of office, where such exists.

Consultative Council of European Judges – Opinion no. 1 (2001) on standards concerning the independence of the judiciary and the irremovability of judges:

57. It is a fundamental tenet of judicial independence that tenure is guaranteed until a mandatory retirement age or the expiry of a fixed term of office

Consultative Council of European Judges – Opinion no. 3 (2002) on the principles and rules governing judges’ professional conduct, in particular ethics, incompatible behaviour and impartiality:

• 77. As regards disciplinary liability, the CCJE considers that:
• i) in each country the statute or fundamental charter applicable to judges should define, as far as possible in specific terms, the failings that may give rise to disciplinary sanctions as well as the procedures to be followed

These sources of course apply to actual judges in national legal systems. Nonetheless they contain principles of general application that have been developed in light of universally applicable observations about the nature of independent decision-making. If the new process is intended to be independent, a failure to observe these basic principles is a serious problem.

B The NEC report

As promised in the statement accompanying my candidacy as a conference delegate, I attempted to challenge the NEC, by way of a reference back of the NEC report, over its withdrawal of my access to Party systems (though for the moment this is less of an issue since the ‘membercentre’ database is at the time of writing offline after a cyber- attack that is currently shrouded in mystery but may be a repeat of the last one, which occurred in May).

Other members were keen to take up this route to challenging NEC decisions too. The full story is documented in a 20 minute video here.

In short: I received evasive and, I believe, inaccurate responses to my attempts to move reference back. In the process of avoiding any challenge to the NEC’s decisions, the chair declared both the CAC 1 report and the NEC report passed without the required show of hands, and in the case of the NEC report, with no discernible sign of assent in the 2 or three seconds between rather casually mentioning it (it was not on the agenda) and declaring it passed!

Although this was immediately challenged by members, the challenge was ignored, and in the following days Conference and CAC chairs denied that any challenge had occurred. In my opinion, these events crossed the line from mere stage management into territory that can only be described as subverting the purpose and process of Conference.  Readers who have got this far are invited to view the video and make up their own minds.

In any case, the attempt to assert the supremacy of Conference over the NEC was seen off for the time being.

The balance between central co-ordination and democratic participation has in my opinion become seriously skewed in the direction of central command and control, to a degree unprecedented within the Labour Party and in a way that is unhealthy for the party’s functioning and ultimately damaging to democracy on the national electoral stage. As this process continues, there may be all the more need for members to assert their rights and defend the sovereignty of our Conference more effectively in future conferences. To that end, there may be valuable lessons to be learned from the events at this year’s conference.

Tim Wilkinson