Formby’s impressive new disciplinary process gives cause for confidence

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Labour General Secretary Jennie Formby’s planned overhaul to the party’s disciplinary processes bodes well for all parts of the party – with the exception of the few members who behave in an antisemitic fashion.

Formby’s plan is firmly based on the principles of the Chakrabarti report to ensure that justice is not only done, but is done promptly and with due process.

A new disciplinary structure will centre, for cases of alleged antisemitism, around three-member panels, with each member having received specific training in dealing with such cases. Each panel will work to a standardised, ‘fast-track’ timetable to ensure cases are resolved promptly – and the process will be overseen by a new ‘in-house counsel’, whose identity is expected to be revealed shortly.

The new structure consists of thirteen key measures, but its crucial aspects – on top of the appointment of the new in-house counsel – are as follows:

  • time limited – the fixed timetable will prevent prolonged ‘limbo’-suspensions common under the previous general secretary
  • anonymised – details of complainants and accused will not be seen by panels, to ensure a fair assessment of the evidence and to depoliticise the process
  • evidence tests – the new in-house counsel, a highly-qualified lawyer, will specify what qualifies as evidence and how it is to be assessed, to improve the consistency and transparency of the process
  • specialised investigators
  • use of written evidence/testimony will predominate, helping to neutralise personality factors
  • mandatory training for those considered in need of it – the training providers have not yet been decided

Together with a new set of sanctions, allowing more appropriate measures – including ‘no action’ if complaints are found to be groundless – to be taken by the party before the ‘nuclear option’ of expulsion needs to be applied.

The new sanctions structure – divided into ‘informal’ and ‘formal’ measures, is reproduced below:

Informal Sanctions

In the cases, where the respondent’s answers to the fact-finding questions do not require further questioning, the Panel may decide that informal sanctions is the most appropriate course of action. This is likely to apply where respondents have shown understanding of the concerns arising from the matter and is unlikely ever to be appropriate in the most serious cases.

Where it becomes apparent during the investigation process that such informal outcomes have already taken effect, this may, where appropriate, allow the outcome to be reported to the Panel without the need for full consideration of all details of the case.

  • Reminder of Conduct: This is one step short of a formal NEC warning and can
    be given verbally
  • First written warning – if the member’s conduct does not improve the Party
    should issue a first written warning. The member should be informed that this is
    an informal disciplinary action, the details of the conduct must be outlined and it
    must be clear that any further decline or continuation within 12 months of this
    conduct could lead to formal disciplinary sanctions
  • Specific educational training to be decided by the NEC Antisemitism Panel
  • No further action

Formal Sanctions

In the cases, where it appears there is a case to answer, the Panel may decide that a
formal sanction is the most appropriate course of action.

  • Formal NEC warning – if the member’s conduct has not improved within the given
    period, a formal NEC Warning should be issued. A NEC Formal Warning should
    remain on file for a defined period, with appropriate weight given to it in future,
    depending on the length of time since the warning, and the similarity of any repeat
    alleged conduct.
  • Administrative suspension from all party activity (pending hearing): Until the NCC hearing has concluded, this member would not be able to participate in the Labour Party in any way, excepting in such ballots of all individual members as may be prescribed by the NEC.
  • Administrative suspension from CLP meetings (pending hearing): Until the NCC hearing has concluded, this member would only be able to participate in their branch meetings.
  • Refer to NCC without administrative suspension: The member would have no limits placed on their membership until the NCC hearing has concluded.
  • Re-endorsement interview for prospective candidate: where the member is a candidate for public office, this would instruct the LCF (or other appropriate body) to re-interview the individual on the basis of a change in circumstance.
  • Mandatory training: Specific training to be decided by the NEC Antisemitism Panel. This outcome could be combined with any of the above.
  • No further action

The new process also includes steps to minimise the extent to which campaigns for or against an accused person are conducted in the public domain before a case is decided, which is to be welcomed – but will of course depend on goodwill and integrity on all sides.  The report includes a warning to those considering a breach of this guideline that it may well be regarded as bringing the party into disrepute – with disciplinary consequences for those held responsible.

The new process, created with the hard work of Jennie Formby and her staff and guided by legal experts, represents a major achievement and it should be welcomed by those who have the good of the party and respect both for due process at heart.

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36 responses to “Formby’s impressive new disciplinary process gives cause for confidence

  1. I have always liked the comment a very good local CLP Secretary said to me: ” Labour Party membership is a gift, not a right.” In that sense it needs to be earned, unlke the Conservative Party or the Lib Dems where it seems wankers are positively welcome. The aforesaid Secretayr knew the Party Rule Book backwards. That is an advantage. Personally. I am rule ‘phobic’. While Skwakwbox is praising Formby’s efforts to make the process faster , watertight and fair, have no doubt that the right will not give up their objective to get rid of Corbyn.

    PR rebuttal and pro-active PR in Corbyn’s office is hugely difficult with the MSM ranged against them. The anti-Semitism Lobby, arising as it did largely from a desire to attack destabilise and get rid of Corbyn has taken scalps that should never have been taken.

  2. Very wary of that ‘training’ issue, both for panel members and for those accused. If that’s the training from the Jewish Labour Movement – its totally inappropriate. I’d also want a statement excluding from the panel anyone who is a member of any organisation with a stated view on the issue in question, ie for anti-semitism – no member of JLM, JVL, or LFI.

    • My guess is that there will be a long list of charges thrown out of court that will reveal the reality behind the vague accusations, hearsay and misunderstandings and false allegations . Those found out to be true and valid deserve what they get.

  3. All looks good and much better than before except one critically important thing that needs to be clarified: what definition of antisemitism will be used? If just the first part of the IHRA definition, which is all I understand the LP has adopted, then we can live with that though it is unnecessarily clumsy. But if the LP is pressured into accepting the ‘examples’ given, which wrongly conflate antisemitism with anti-Zionism then we have a real problem, legally and politically.

    Legally because the PSC and Free Speech on Israel took counsel’s opinion which suggested that these ‘examples’ would not stand up in court. Politically because the definition then becomes discriminatory against Palestinian Arabs. I am a British Palestinian who argues that Israel was and is a racist ‘endeavour’, one of the ‘examples’ given. I do so because my father was denied the right to return home in 1948 when he was studying in Britain. This was simply because he was not Jewish. The same fate befell 750,000 or so other Palestinians in 1948/49 and the internationally recognised right to return of Palestinian refugees, now numbering 5 million or more, For saying what is a part of our family history we are disgracefully labelled as anti-semites when many of us have spent our lives fighting all forms of racism including antisemitism.

    Also, when this procedure is fully implemented will people like Marc Wadsworth be allowed to have the disgraceful expulsion decision overturned? And will Jackie Walker be given a fair hearing under the new procedure?

    • if criticising Israel was antisemitism then what would we make of the MSM attacks on Iran. Russia, Syria, Venezuela, China and many many more

  4. Thanks to Chris Khamis for such a lucid description of exactly what the position is. I hope Jenny reads it and reflects.

  5. It represents a considerable improvement but I have some concerns.
    The particular focus on antisemitism in these proposals seems to suggest that any AS allegations would be treated differently than any other allegations e.g. racism vs BAME, disability discrimination, LGBT discrimination, pregnancy discrimination, gender discrimination, age discrimination etc.

    I really hope that is not the case because it could represent a breach of the Equality Act 2010. If another protected characteristic is treated differently that could amount to direct or indirect discrimination.

    The need for equal treatment goes both ways you can neither treat one protected group worse nor another better (the exception is in relation to disabled people who have asymmetric rights under the Equality Act 2010). If this new scheme is universally applied to all members then it would be a distinct improvement.

    My other concern is that it seems to neglect to expressly state the rights of members. I would have liked a clear statement that at a minimum guaranteed the 3 key rights under natural justice:

    i. The accused member should receive notice of the charges so that he may consider and prepare his defence;
    ii. He must be afforded a fair opportunity of saying something in his defence (Audi alteram partem);
    iii. The rule against bias (Nemo iudex in causa sua).

    These principles must underpin the entire disciplinary process for it to accord with the legal requirements that have been set by the Courts over the years.

    Another key question would be “a 3-member panel” of what? NCC or NEC or a new body? It can’t really be the NEC or a sub unit of the NEC making the final determination because that would quite obviously offend against point iii. The body that determines a charge cannot then decide if that charge is proven. Either the NCC or another new body must do this unless the NEC gives up all power to discipline and suspend and this is instead allocated to a different body. However, it is organised it must be separated out or it will likely breach natural justice and be subject to potential legal challenge. I assume this will be put forward at Conference as a set of rule changes as it seems to me it would require new rules. I am also keen to see if this will include a right to representation for ordinary members who cannot afford a barrister/solicitor.

    This all seems like a step in the right direction and an incremental improvement but there is still some detail to be fleshed out and nailed down to ensure that members rights are fully balanced out vs the need for reasonable internal disciplinary measures.

    Once we know who the Legal Director is I will write to them to offer comment and to offer my assistance in the process.

    (A quick response to poetrymusuem above. Joining Labour is a ‘privilege’ a no one has any right to join but once you join then you are a party to the members contract and you have legal contractual rights that are enforceable and not merely privileges.)

  6. One assumes that these new rules will apply to MP’s behaviour in equal measure !
    It would be very interesting to see how things would have panned out in the Smeeth lie of anti-Semitic behaviour against Marc W

  7. Following on from what Chris and Duncan have said: 1) Your headline suggests that this is a set of proposals that applies across the board in disciplinary matters; further on it becomes clear that these proposals only relate to accusations of anti-semitism. 2) There are several mentions of “training,” “education,” and at least 2 references to the NEC Antisemitism Panel. This is the elephant in the room. If any of this training/education is to be carried out by members of the Jewish Labour Movement or if any members of the Jewish Labour Movement are members of this panel, how can we expect any justice from people whose stock in trade is defending Israel by any means necessary (including by forcing the IHRA definition of antisemitism down the Labour Party’s throat)? Akehurst/Rose and friends are currently busy touring the country carrying out “training” in a) how to oppose Momentum and b) “antisemitism” awareness and most probably, subtextually, in both cases c) how can we get rid of Jeremy Corbyn as soon as possible so that normal service to our masters in the imperialist power-blocks can be resumed? Without any clarification as to how these arbiters/judges are going to be selected, particularly the in-house legal and investigatory team members, this news leaves too many questions unanswered. Where also does this leave people who believe, many with good reason and good historical justification, that Zionism itself is an antisemitic and racist creed?

    • The principles will apply across the board, but obviously not every aspect is relevant to every type of complaint – the specialised a/s panels will only apply to a/s complaints, for example, although they’ll be mirrored by the similarly-specialised teams for sexual harassment allegations.

      • I have now had a chance to read the leaked paper and that is not the inference I drew from it. It seemed that the specialist panels are to deal only with AS or sexual harassment.

        This does seem to me on its face to represent a significant difference in treatment as compared to other protected characteristics.

        Why is a specialist panel needed for AS but not for e.g. BAME racism? or disablist conduct? So, a panel member needs special training to recognise AS but racism or disabled discrimination is so obvious and self-evident that no training or specialist panel is needed for those protected groups?

        For the process to be fair and equitable every complaint needs to go through the same process. I am wary that creating sub processes in this fashion that seem to distinctly prioritise particular complaints and therefore particular protected characteristics looks to me like they may fall foul of the Equality Act 2010 and amount to a form of indirect discrimination.

        Equality Act 2010:

        S.19. Indirect discrimination
        (1) A person (A) discriminates against another (B) if A applies to B a provision, criterion or practice which is discriminatory in relation to a relevant protected characteristic of B’s.

        (2) For the purposes of subsection (1), a provision, criterion or practice is discriminatory in relation to a relevant protected characteristic of B’s if—

        (a) A applies, or would apply, it to persons with whom B does not share the characteristic,
        (b) it puts, or would put, persons with whom B shares the characteristic at a particular disadvantage when compared with persons with whom B does not share it,
        (c) it puts, or would put, B at that disadvantage, and
        (d) A cannot show it to be a proportionate means of achieving a legitimate aim.

        This is a judgement call in part on whether it does discriminate and the Court of Appeal has gone beyond the statute and interpreted it to require at least prima facie evidence of some kind of causal link to be demonstrated, Naeem v Secretary of State for Justice [2015] EWCA Civ 1264.

        The Party could attempt to argue under S.19(2)(d) it was a proportionate means of achieving a legitimate aim but the wording is based on the original European Directive which means it has to be objectively justified by a legitimate aim and the means of achieving that aim must be appropriate and necessary. This would mean if a different provision, criteria or practice could have achieved the same aim but without being indirectly discriminatory it is not going to be justified as necessary and would fail this test.

        Sorry that is all a bit technical but, in my view, it is next to impossible to see how hiving off the AS part of the disciplinary process in the suggested manner and with potentially a fast tracked process for AS and specialist training for the dedicated AS panel does not indirectly discriminate against other protected characteristics by virtue of the fact that they are not receiving equal treatment. I seriously doubt political exigency is going to meet the legal test of a legitimate aim that is appropriate and necessary.

        This aspect in my view needs a reworking to create a level playing field for all members in all disciplinary cases (the one allowable exception might be preferencing disabled members as it is allowed as part of making reasonable accommodation).

        Credit to those who are making a good faith effort to improve the process but it clearly needs some additional tweaking.

  8. Sounds an improvement but would feel better if the NCC panel was staffed by 3 Leftie academics.

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  10. If it IS the case that these new procedures only apply to allegations of A/S, then one has to ask ‘Why?’. Anyone who knows anything about the allegations made against Kelvin Hopkins by Ava Etemadzadeh AND has seen the statement he issued at the time through his solicitor, will know of course that the allegations are complete fabrication, or are we supposed to believe that a woman who had a man rub their crotch against them – which she found “revolting”- would send that man a text an hour or two later thanking him for coming and giving a talk AND tell him he’s “a star” AND sign off with a x – ie a kiss?

    Anyone investigating the matter would see in a matter of minutes that her claims are/were false, and yet Kelvin has been suspended for seven months now on these totally trumped up charges.

    Well, well, well, I just happened to do a quick search just to confirm that Kelvin HAS been suspended for the length of time I thought he had, and came across the following article in The Guardian, none of which I had heard about before, and with the usual phony outrage by LP Tories:

    https://www.theguardian.com/politics/2018/mar/22/kelvin-hopkins-ava-etemadzadeh-labour-mp-cross-examine-harassment-accuser

      • For anyone who hasn’t seen/read it before, I meant to say.

      • I think this bit in the Skwawkbox post would be particularly relevant, Allan:

        ‘The new process also includes steps to minimise the extent to which campaigns for or against an accused person are conducted in the public domain before a case is decided, which is to be welcomed – but will of course depend on goodwill and integrity on all sides. The report includes a warning to those considering a breach of this guideline that it may well be regarded as bringing the party into disrepute – with disciplinary consequences for those held responsible.’

        Given that these allegations were the top news on the BBC and other media for 24h last Nov when the story first broke and then again at the different stages of the procedure, I really don’t see how it can be said that Kelvin Hopkins will receive a fair hearing. In addition, to the mainstream media, a quick look at AE’s twitter feed will show that she has kept up a persistant campaign of accusations against her ‘sex pest’ (even demanding that Andrea Leadsom prevent him from speaking in HoC .. on foetal alcohol syndrome). Tbh she ought to be very concerned that he will sue her for defamation. Jess Phillips may also have a case to answer after her newspaper articles demanding that Hopkins be sacked.

    • I’m sure everyone remembers that Bex Bailey claimed that when she tried to report the rape she alledges happened to a party official, she was supposedly told by this party official that she best keep quiet about the rape or it could be damaging to her and, as a consequence of this, the NEC called in a QC to investigate the matter. But it’s now seven months later and we haven’t heard a dickybird more about the matter. And it goes without saying that it would have taken no more than a day or two at the very most to identify who this party official was.

      Anyway, a couple of weeks ago I emailed the NEC to ask them if this party official had been identified – NOT who it was or what their name is – and received an email back saying they do not discuss cases under investigation. In other words, we’ll never get to learn whether their actually WAS someone that Bailey alledgedly reported it to (that said the things she claimed they said). And isn’t it odd how the media – and especially the right-wing press – don’t appear to have shown any interest in who this “party official” is in the months following.

      Now contrast THAT with the news coverage of Kelvin Hopkins being given the opportunity to question Ava Etemadzadeh – ie the very fact that it was leaked to the media! And for the obvious reasons – ie so that SHE, and some of her cohorts, could pretend to be upset or angry that the NEC was allowing Kelvin to do so. And the reason we’ll never learn whether the party official was identified in the Bex Bailey case is because they don’t exist, and ALL of it, including the rape allegation, is and was complete fabrication.

      https://www.thesun.co.uk/news/5876311/labour-mp-threatens-to-quit-party-after-it-emerges-woman-abused-by-politician-could-be-quizzed-by-her-attacker-during-investigation/

      • The absolute absurdity of this situation of the NEC allowing Kelvin Hopkins to question Ava Etemadzadeh about her allegations just this minute occured to me! Are we really to believe that those investigating the case wouldn’t themselves have thought to ask her the glaringly obvious questions:

        1. Why did you send Mr Hopkins a text an hour or two after he alledgedly rubbed his crotch against you – which you have said you found “revolting” – thanking him for coming to the university to speak AND telling him that he’s “a star” And signing off with a x – ie a kiss?

        2. And in the light of the claim that he rubbed his crotch against you – which you say you found “revolting” – why did you contact him several weeks later to ask him for a postal address that you could send him a Christmas card to, and yet again sign off with a x – ie a kiss – and then send him said card?

        3. And why did you go to the House of Commons to meet up with him some weeks later and have lunch with him given what you claim he did, which you found revolting, and then send him a text shortly afterwards thanking him for a lovely time and yet again signing off with an x?

        4. And apart from meeting up with him anyway in the light of the crotch-rubbing incident you claim happened – which you found “revolting” – why did you, and why would you, send him such a text if what you say is true that during this meeting at the HoC he asked you personal questions (which made you feel uncomfortable), and that he said to you that he would have liked to take you to his office had it been empty?

        I could go on, but it is quite evident of course that those in the NEC who are supposedly investigating the case are a party to these fraudulent claims, as they are with the vast majority of other false and bogus claims (about A/S, sexual misconduct, homophobia, etc, etc).

        The best thing that Kelvin could do – and do it for the sake of the LP under JC’s leadership – is to resign from the LP and sue Ava Etemadzadeh for defamation AND also start legal proceedings against the NEC members who have been (supposedly) conducting the investigation and sue them as individuals for malpractice (and whatever else they are guilty of……. the word corruption comes to mind).

      • I couldn’t find a reply to your last comment so am posting here. As I understand it, the NEC disputes panel were presented with a short report and a recommendation from the investigating LP staffer to refer to the NCC which is the body that decides whether to suspend or not. Apparently, the NEC disputes panel deals with 20 or more complaints in 2 hours ie 6 mins/case and so cannot possibly consider each case in detail.

        Hence, the LP staffer had enormous power to determine the decision (many of these have now resigned and been removed … as has Iain McNicol). IMO the very different treatment meted out to John Woodcock (anti Corbyn) and Kelvin Hopkins (pro-Corbyn) strongly suggests that the process may have reflected the anti-Corbyn political bias of the investigating officer.

        Your suggestion that Kelvin Hopkins resigns and sues is very understandable but it would be a sorry end to a well respected career… and on the say so of a rather inconsistent young woman and 6 naff notes to Kerry McCarthy sent over a 20y period. I would rather that the NCC is advised by an in-house lawyer and that the case is dropped as having inadequate evidence.

  11. If the core definition of anti-Semitism is used, it may prove difficult to successfully expel many members on these grounds alone. However, if the charge is simply changed to ‘bringing party into disrepute’ this makes the anti-Semitism definition somewhat academic.

    I understand this is how Marc Wadsworth was, and how Ken Livingstone would have been dealt with. Some members may feel as if they have inadequate protection from this rule being misused, or conversely MPs being granted immunity, where it is most in need of being used.

    My feeling is that cases can only be dealt with free of political pressures outside the political party process by a totally independent panel. Otherwise there will be substantial pressure on the party to expel members unjustly.

  12. I would never accept training from the BBOJ or LFI I would rather resign .The thought frankly disgusts me

  13. Anyone with any sense involved in the Labour Party will know that there is probably less AS in Labour than in the general public. What there is however is plenty of rightful criticism of Zionism which has been used by the Israel lobby to attack Jeremy Corbyn because of his support for the Palestinians suffering at the hands of Israel.

    Zionism which begets racism and segregation is completely at odds with Socialism and because we in the LP have our basis in equal rights and fairness, we are duty bound to criticise it no matter who it upsets. It must be remembered that the LFI and others are in the LP for one reason and one reason only, it is to deflect criticism from apartheid Israel. Even their opening statement on their web site is false “Working Towards a Two State Solution” If anyone believes it, they are either naive or complicit. The LFI receives finance from Israel and the last thing Israel will countenance is a two state solution, they want the Palestinians to disappear, it’s as simple as that and until then, they would prefer continuous conflict.

    There should be no State, religion or ‘ism’ which is immune to criticism and as for this ridiculous notion of ‘training’ to recognise AS, I for one reject it completely, I am perfectly happy with the dictionary definition of AS i.e. “prejudice against Jews because they are Jews”. I will not accept any deliberately cobbled together definition such as from the IHRA to be used against me or others. It is solely designed to staunch criticism of Israel and their murderous actions against Palestinians.

    Perfectly good people have been targeted by pro-Israel factions within the Party for suspension and/or expulsion. It’s about time we stood up to these people who see little or no wrong in Israel’s actions and ditched this policy of appeasement. They must be called out for what they are, bullies whose aim is to destroy Jeremy Corbyn by any means possible.

  14. I think many people think this is a minor issue, with high risk consequences and the party is on a hiding to nothing fighting it. I think the opposite. This is Labour’s crunch issue. Pass this one and we go on to victory. Fail and we cannot win anywhere.

  15. Oh dear, the usual SNAFU. You appoint your Q.C. BEFORE you design the disciplinary process. They then supervise the design and oversee the implementation. What self respecting lawyer would agree to be involved with the incomprehensible dogs breakfast as described?

    • As the article states, QCs were hired in for the process. It’s only the in-house counsel not yet appointed

  16. Publicly defending yourself against allegations will now be ‘bringing the party into disrepute’ and grounds for expulsion even if innocent of the original charge. Kafkaesque 😕

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