26.06.2014
Confidentiality is a bosses’ tool
Left Unity should not deal with internal disputes through setting up secret trials, argues Paul Demarty
A few weeks ago, Owen Jones - writing on The Guardian website - found himself in the unusual position of agreeing with the Daily Mail. The affair under discussion was the somewhat disturbing matter of Britain’s first secret trial for some time.
We know, thanks to the efforts of gallant journalists, that there is a secret trial going on, of two men - named for public purposes AB and CD - on terrorism charges. We know nothing else - and at this point, anti-terrorist legislation is so bloated and authoritarian that the specification does not tell us whether the men were watching a bin Laden clip on YouTube or brewing up napalm in their bathtub.
Comrade Jones is perturbed - and he is hardly alone. It is “a direct challenge to the Magna Carta of 1215… once this precedent is established and a centuries-old tradition of justice broken, it will be much easier to hold trials in total secrecy in future.”1 He is not exactly right about the Magna Carta; the right to public justice was established in this country as a principle of common law by the Leveller, John Lilburne, at his trial for high treason in 1649. (He was acquitted.)
At the Weekly Worker, we must confess that Left Unity has increasingly delivered us into Atlanticism: both the first and second amendments to the US constitution have decorated the front page in recent months. Now it is the turn of the sixth:
In all criminal prosecutions, the accused shall enjoy the right to a speedy and public trial, by an impartial jury of the state and district wherein the crime shall have been committed, which district shall have been previously ascertained by law, and to be informed of the nature and cause of the accusation; to be confronted with the witnesses against him; to have compulsory process for obtaining witnesses in his favour, and to have the assistance of counsel for his defence.
Last week, we gave extensive coverage to a dispute that has arisen in Left Unity’s Manchester branch, which has seen comrade Laurie McCauley - a member of the Communist Party of Great Britain and LU’s Communist Platform - summarily suspended and referred to the disputes committee. Some of the charges against him are vague and baseless accusations of “bullying” and “oppressive conduct”, but such conduct appears to have been mysteriously tolerable until he decided to write up the whole farrago in this paper.2 Thus, we are forced to conclude that his opponents in the branch object primarily to his blowing the gaff on their bizarre behaviour - that they believe themselves in possession of the right to keep their branch affairs private.
The LU constitution has no clause one way or another on this (proof, if it were needed, that, no matter how Byzantine this document is, it does not cover every possible type of dispute). We have argued that on the basis of revolutionary ‘common law’ - the practices of our more illustrious predecessors in the movement,3 not to say the failures of others4 - that LU should commit itself to transparency, irrespective of how embarrassing it may be to individual comrades. The DC should throw out the complaint, reinstate Laurie and tell the Manchester comrades to grow up.
Shut up
It does not look like this sensible course of action will be taken, however. It turns out that the fragile things who populate Manchester LU are not the only people in the organisation who do not like publicity. Comrade Alan Story of the disputes committee writes to Laurie: “… do you agree that the communications involved in trying to resolve the dispute between you and the LU Manchester branch should be kept confidential?”
He continues in a cryptically threatening manner: “If you do not reply in the affirmative in the next 48 hours, we will draw our own conclusions and recommendations and inform you, the LU Manchester branch and the LU executive committee of those conclusions.”
Laurie, naturally, replied (The DC are very busy people at the moment, alas, and it would be rude to keep them waiting) - not in the affirmative: “Without any idea of the actual content of the charges being laid against me - and with my accusers refusing point blank to give an explanation, either to myself or the many concerned comrades that have repeatedly questioned them online - the disputes committee is demanding that I submit to being tried in camera, behind closed doors,” he wrote. “This is actually a scandalous, dangerous suggestion” - especially in the light of the secret trial we mentioned at the outset, he could have added.
National secretary Kate Hudson argues in response that “confidentiality is a normal part of the procedures which all parties to complaints are asked to respect.” Come again? A normal part of what? There is no reference in the relevant section of the LU constitution to disputes being treated confidentially.
Of course, as currently drafted, the constitution refers to the hotly disputed ‘safe spaces’ policy, which does insist on confidentiality. Yet on two counts, this clause is irrelevant. Firstly, the wording is as follows: “… the first recourse [in a dispute] will be to seek reconciliation and representation through the informal stage of the safer spaces policy”. So it is not a consideration for the DC. Secondly, the ‘safe spaces’ policy was kicked into the long grass by a substantial majority at LU’s founding conference, which found some of its provisions a little on the Kafkaesque side of things.
The constitution does, however, allow for ‘confidentiality’ in a certain sense: “The disputes committee shall adopt its own procedures and standing orders, subject to approval and amendment from time to time by national conference.” So, one presumes, the DC could decide that all parties to a dispute have to give evidence standing on a table on one leg - until such time as a conference is called to ‘amend’ such a requirement. This “normal” aspect of procedures is not anointed by any democratic vote, in other words, but has been made up on the hoof by the DC comrades. They should reconsider.
After all, such procedures will become a “normal part” of British anti-terror law, if AB and CD are allowed to meet their fate as planned. Comrades will no doubt, at this point, protest that this is hyperbole. Such comrades lack a sense of irony - no, LU is not about to adopt a regime of extra-judicial internal terror. The principle is the same, rather than the degree or the likely effects - it is sad, rather than frightening, to see this cloak-and-dagger act at work in a small left organisation with no significant means of coercion at its disposal.
Likewise, it may be objected that the sixth amendment specifies criminal trials, and Laurie is not accused of any crime. The trouble with both these arguments has to do with why it is that criminal trials should be so specified. In civil litigation, parties to a dispute are formally equal before the law (if very rarely in practice).
In criminal law, the defendant is arrayed not against a private litigant, but the full power of the state: in short, it is inherently an unequal relationship of force. The insistence of democrats, liberals and others down the years on juries, a stronger standard of proof (‘innocent until proven guilty’), the right to counsel and to face accusers, and open justice has to do with levelling the playing field somewhat in a situation where inequality of force is inevitable.
The specification of criminal trials here has to do with the fact that, for classical liberal ideology, it is only possible to admit to such an inequality of force in direct conflicts between a private citizen and the state. Marxists are under no such illusions. So, while we do not claim that the DC and other supporters of confidentiality in handling disputes draw inspiration from the Star Chamber, we are concerned that it is perfectly clear - particularly from the draft ‘safe spaces’ policy - that they do draw inspiration from the resolution of disputes in the workplace.
No gain
The trouble is that, upon a moment’s examination, the notion that these procedures favour those further down the social pecking order is transparently foolish. A contemporary example: Dov Charney, the founder and erstwhile CEO of detestable clothing brand American Apparel, has recently been ousted, which has had the effect of bringing his ‘colourful’ career, littered with allegations of egregious and frequently bizarre sexual harassment, back into the public eye.
We know about the endless allegations against Charney because, as a self-promoting narcissist, he more or less adopted them as part of his public image (sexist types often imagine such behaviour to be attractive to women, for some reason). Confidential HR mediation does not typically have this effect: it removes some of the means by which ordinary women can hold lecherous managers and bosses to account.
Variants of this are common. Hefty gagging clauses imposed on NHS whistleblowers enable the bullying of the next whistleblower, for instance. A leftwing example is provided - where else? - in the Socialist Workers Party rape scandal, where it was not until a transcript of the disputes committee report-back was leaked in toto that any possibility of examining allegations against ‘comrade Delta’ existed.
Trade union attempts to confront bullying by representing workers in mediations and tribunals are very worthy, of course; but their increasing prevalence over industrial action is a result of the unions’ weakness in the current situation. Supporters of confidentiality in dispute resolution misrecognise this as a gain, and seek to impose on LU a mode of justice cut to measure for the bosses. This is no way to build a leftwing organisation.
There are those, finally, who interpret all this as a hostile attack on LU. This is quite emphatically not the case. We have said all along that this approach to resolving disputes will simply cause them to multiply, and - worst of all for a notionally socialist organisation - will exacerbate the informal hierarchies that exist, inevitably, in class society.
Failure to pay attention to this guarantees far more severe embarrassment and disaster down the road: cover-ups and whistleblowers, the prurient interest of the Daily Mail … in short, the full SWP Monty. In justice, as in all things, the interests of the masses lie in maximum transparency. Secrecy is for bureaucrats, tyrants and bosses l
paul.demarty@weeklyworker.org.uk
Notes
1. http://www.theguardian.com/commentisfree/2014/jun/05/britain-first-secret-trial-rights.
2. ‘What safe spaces lead to’ Weekly Worker May 15.