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THE stream of Labour members receiving letters giving the notice of administrative suspension or notices of investigation are told:
“We must therefore ask you to ensure that you keep all information and correspondence relating to this investigation private and that you do not share it with third parties or the media (including social media).
“That includes any information you receive from the party identifying the name of the person who has made a complaint about you, any witnesses, the allegations against you, and the names of party staff dealing with the matter. If you fail to do so, the Party reserves the right to take action to protect confidentiality, and you may be liable to disciplinary action for breach of the party’s rules.”
The constraints this places upon subjects of disciplinary process are oppressive and contrary to their entitlement to free expression under Article 10 of the European Convention of Human Rights as incorporated into the Human Rights Act 1998:
“Everyone has the right to freedom of expression. This right shall include freedom to hold opinions and to receive and impart information and ideas without interference by public authority and regardless of frontiers.”
As most letters contain neither the name of any complainant, the names of any witnesses, nor the name of any member of the party staff it would be impossible to publicise these in any case.
Being investigated in a sea of anonymity is, itself, of considerable concern. The names of complainants and witnesses may be withheld in cases where there may be a justified fear of retaliatory harassment.
Does the party suspect the recipients of these letters are likely to engage in such behaviour and if so what grounds does the party have for such a belief?
Any burdensome requirements must be applied to individual, carefully considered instances; not rolled out wholesale.
The letters claim:
“The Labour Party’s investigation process operates confidentially. That is vital to ensure fairness to you and the complainant, and to protect the rights of all concerned under the Data Protection Act 2018.”
The party fails to explain how the person receiving such a notice has their rights protected by a duty of confidentiality imposed on them. Perhaps because they would be totally unable to.
In the past these letters were signed by a member of the Governance and Legal Unit. Now they are not signed by any named individual, but end: “Yours sincerely, The Governance and Legal Unit, The Labour Party.” In many years of handling trade-union casework, I have never encountered the names of staff dealing with a case being kept secret.
Not being able to discuss the nature of the allegations is a fundamental attack on political liberty. The Labour Party as a political organisation should be a locus for political debate so we can all learn: the allegations made are a political act and free debate of them would enable the accused member and others to explore the issues raised, learn from them and, if appropriate, modify their behaviour, and/or attempt to convince others of the validity of their analysis.
It is absurd for the party to seek to inhibit such a process of political education and damaging to the development of the party to combat anti-semitism, racism and other forms of discrimination.
There is a further and disturbing element. The instruction as printed suggests that accused members are not even entitled to share their documents with an advisor or lawyer or family member and that they are required to prepare their response to a potentially life-changing letter unaided.
Jewish Voice for Labour knows that members can, in fact, seek assistance and share their documents for that purpose. Not all members will know that and the standard letter conceals this important information.
This cannot be accidental as the standard letters have obviously been drawn up with some considerable care. Care is not shown to members targeted by these letters who will feel isolated and threatened. Withholding this vital information is more than harassment — it is abuse of a malicious order.
As investigations are a quasi-legal procedure we should expect they meet the minimum requirements of a right to a fair trial under article 6 (3) c of the EHCR: “to defend himself in person or through legal assistance of his own choosing.”
Further, the short time scales for response to complex, and frequently ill-framed, allegations are at variance with article 6 (3) b: “to have adequate time and facilities for the preparation of his defence.”
The party does not have unfettered discretion on how to deal with members. There is clear case law that states there is an implied duty of fairness and natural justice in handling disciplinary processes.
The Court of Appeal recently ruled against the party, stating that “discretion conferred on a party under a contract is subject to control which limits the discretion as a matter of necessary implication by concepts of honesty, good faith and genuineness, and need for absence of arbitrariness, capriciousness, perversity and irrationality.”
The prohibition on members disclosing the allegations made about them is a clear breach of this obligation.
The standard letter recognises that the party’s heavy-handed approach puts the mental health of its members at risk and may even lead some to contemplate suicide: it invites them to consult their GP or the Samaritans.
It is hypocritical of the party to pretend such care. It is hard to conceive that it has met its duty of care by seeking to ameliorate the negative effects of its actions: it would fulfil its duty only by not engaging in abusive behaviour in the first place.
Starmer must require the party to reconsider urgently these blanket restrictions which are contrary to the spirit of the Chakrabarti report on how best to make progress on such issues. They are also contrary to any spirit of human decency and natural justice.
Failure to bring the party into line even with minimally acceptable practice will demonstrate that he is keen to pursue the abuses committed by others but content to draw a veil over those he is responsible for.
Mike Cushman is a member of Streatham Constituency Labour Party and membership secretary of Jewish Voice for Labour.
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