WeeklyWorker

25.09.2014
Gagging: should not be a part of our practice

Transparency is a principle

Demanding ‘confidentiality’ when it comes to internal disputes makes us look like a combination of Little Stalins and the Life of Brian, argues Mike Macnair

Politics is currently characterised worldwide, with limited exceptions, by a drift to the right. This drift is episodically interrupted by the election of ‘realist’ centre-left governments, which temporarily delay the rightward trend, but prepare the ground for forces further right (like Hollande in France). Britain is not one of the exceptions, obviously. The Cameron government is well to the right of those of Major and Thatcher, and the rise of the UK Independence Party, and Cameron’s decision to promote English nationalism as a response to the concessions needed to win the Scots independence referendum, both portend further rightward movement.

There is a sense in which this dynamic seems odd. After all, ‘recovery’ after the big crash of 2008-09 has been slow and limited and, if the ‘Marx is back’ talk has died down, the falsity of marginalist deregulationism and so on is now generally accepted. Moreover, class and economic inequality has become much more salient in public discussion (see, for example, the publicity round Thomas Piketty’s Capital in the 21st century). So why is the main dynamic still towards the right? Or - to put the same point another way - why is the left so weak?

The centre-left or ‘realist’ left is committed to reforms which are ‘realistic’ within the framework of the nation-state and the existing constitutional order. But the historical reality is that major reforms in the interest of the left’s working class constituency were achieved not by ‘realism’ of this sort, but by putting the upper and middle classes in fear that if they did not make major concessions, they could lose everything to socialist revolution. This was as true of the rise of the pre-1914 mass social democracy as it was of the impact of the Russian Revolution and, after 1945, of Soviet tanks on the Elbe. But the ‘realist’ left has abandoned the socialist aim (which is the core of the threat); and the upper and middle classes see no reason to make concessions. The result is episodes of ‘hope’ for change around such unlikely figures as Tony Blair and Barack Obama, followed by disillusionment and a turn to the rightward-moving right.

The far left’s weakness has a comic aspect and a tragic aspect. The comic aspect is expressed as ‘Monty Python’s Life of Brian’, meaning the multiple anti-Roman splinter groups of that movie. Many comrades can see the problem, with the result that we have had a series of ‘unity projects’. Most recent is Left Unity - in name a unity project, if in practice it is more like a new competing left group.

The tragic aspect is that we are all overshadowed by the general identification of socialism with the failed and tyrannical Soviet and similar regimes. There is no reason to expect this identification to just go away with the lapse of time. In the first place, the old feudal-absolutist monarchies went on for hundreds of years, using the Italian city-states as an awful example that ‘There is no alternative’ to their regime - until the bourgeoisie, in the shape of the Dutch and then the British, managed to create regimes which overcame the Italian dynamic that went from republic to internal factional warfare, to tyranny.

Second and more immediately, the left itself periodically reminds those who know it - and less frequently, the general public - of the Stalinist regimes. This is not a monopoly of the far left: see, for example, the ejection of Walter Wolfgang from the 2005 Labour conference, or the ‘Unison monkey trial’ (ending in the courts and the mass media with £49,000 damages given against the union).1 But precisely because the far left claims to aim for a better future, its bureaucratic regimes and the resulting episodic scandals deeply poison the credibility of the idea of socialism. The bureaucratic regimes also generate the splits which produce the Life of Brian comedy side.

The most spectacular recent example is the ‘comrade Delta’ case in the Socialist Workers Party. This displayed the SWP’s (women-majority) disputes committee doing worse than the current practice of the bourgeois courts in handling a rape allegation against a senior party member. Inevitably, it too hit the mass media - to some extent precisely because of the SWP’s attempts to keep it quiet, including the expulsion for ‘factionalism’ of some members who wanted to raise the issue. And it ended in a messy, two-stage split, producing not one, but two splinters: the International Socialist Network and Revolutionary Socialism in the 21st century.2 If the splintered left is the Life of Brian problem, the bureaucracy could be called the ‘Little Stalins’ problem.

Left Unity’s name indicates an attempt to overcome the Life of Brian phenomenon, and its constitution is (in part) an attempt to overcome the ‘Little Stalins’ problem. But the attempt to do so moves in two directions, neither of which will work, and which are also in tension with each other.

The first is legalism and legalistic constitutionalism: so elaborate in the LU constitution that it looks like a Heath Robinson machine. If LU really attempted to comply with the constitution’s elaborate ‘checks and balances’, this would work like the constitution of the old Commonwealth of Poland before 1791 with its aristocrats’ liberum veto, to block any decisions at all being taken.3 Hence, inevitably, there will be, as Walter Bagehot said of the British constitution, a “ceremonious part” and an “efficient part”. Whether the “efficient part” will be democratic or bureaucratic is left completely open by the unworkability of the “ceremonious part”.

The second attempt is ‘intersectionality’, expressed particularly in the ‘safe spaces’ proposals.4 Many of those who split from the SWP and some on the left outside the SWP explained the ‘Delta affair’ in terms of inadequate feminism or ‘rape apology’. In reality this explanation focused on the symptom - the abusive use of the alleged victim’s sexual history by the SWP DC. It left out the real causes, which were two: first, cronyism and behind that the top-down, clientelist dynamics of the SWP’s overblown full-time apparatus; and, second, the organisation’s culture of secrecy. As I and others have argued before now, ‘intersectionality’ and ‘safe spaces’, like their 1970s-80s precursors, will lead to witch-hunting and splintering between competing oppressions.

Left Unity disputes

LU is now in danger of sliding both into splits driven by ‘intersectionality’ and into a mode of conducting its affairs, and in particular its disciplinary proceedings, which will reproduce the problems of secrecy and unaccountability of the SWP ‘Delta’ case, where justice could not be seen to be done. I stress in danger of. What is involved so far is bad decisions, not yet codified, which can be reversed without too much difficulty. But they do need to be reversed, or LU will be in danger of adding to the tendency for the left to discredit itself by its own Life of Brian and ‘little Stalins’ phenomena, rather than offering an alternative to this problem.

On May 15 this paper published an article by comrade Laurie McCauley, a Communist Platform supporter, on recent developments in the Manchester branch of LU. Comrade McCauley was particularly critical of the “shit-storm” which had appeared in the branch over the case of the allegations against RMT official Steve Hedley. The majority of active members of the branch did not take kindly to this criticism, and on June 11 an inquorate meeting of the branch passed two resolutions. The first “affirms some basic principles of privacy and accountability among its members. Our branch meetings and e-lists are private, not publicly readable. We do not expose participants’ identities and private statements to the public ...” The second censured comrade McCauley for “his unaccountable behaviour, most notably with his public article in Weekly Worker No1010 ... We refer this matter to the disputes committee of LU. By referring him to the disputes committee we exclude him from branch and list discussions until this matter is resolved.”

Manchester has not been the only scene of ‘intersectionalist’ witch-hunting around the Hedley allegations. Bianca Todd’s refusal to support their Hedley witch-hunt has led to her being targeted by the ‘intersectionalists’ in a motion at LU’s national council meeting on September 20. Thankfully, overwhelming opposition at the NC led to the motion being withdrawn.

The Manchester decision has rapidly turned into an argument about whether disputes committee (DC) proceedings should be ‘confidential’. On June 20 Alan Story for the DC wrote to comrade McCauley:

Laurie

We note that you have not replied to the two messages we have sent you this week regarding confidentiality.

So we asking you today (June 20) a third time: do you agree that the communications involved in trying to resolve the dispute between you and the LU Manchester branch should be kept confidential?

Your agreement on this matter and your agreement to cooperate in a collegial fashion with the LU disputes committee means that we can then try to move things forward and next hear the views of both parties to this dispute.

If you do not reply in the affirmative in the next 48 hours, Laurie, we will draw our own conclusions and recommendations and inform you, the LU Manchester branch, and the LU executive committee of those conclusions.

The two latter bodies will then be able to reach their decisions about this matter.

It is important to be clear about this: this email demands confidentiality as a precondition for hearing the views of both parties to the dispute.

By virtue of the DC’s decision, comrade McCauley remains in limbo: he is suspended by an inquorate branch meeting pending a DC decision, and the DC refuses to proceed without a prior commitment to confidentiality.

As a matter of technical constitutionality and general English law, there is nothing in the formal LU constitution which requires confidentiality of the DC proceedings or permits the committee to impose such a requirement. The reason for this is that at the founding conference, a disputes committee was elected, but the draft ‘safe spaces’ policy, which was supposed to serve as its terms of reference, was referred back. This left only the very vague statement in the constitution that the DC’s “role will be to investigate disputes and complaints about the behaviour of individual party members referred to it ...” As a matter of English law, in the absence of express terms of reference requiring confidentiality, a quasi-judicial body like the LU DC is not bound to act confidentially. But it is bound by the rules of natural justice, principally ‘audi alteram partem’ - the obligation to hear both sides. By refusing to hear both sides, on the ground of confidentiality, without any express term for confidentiality, the LU DC’s decision is judicially reviewable, and, according to the strict letter of the law, the DC has placed LU in actionable breach of contract with comrade McCauley.

The DC’s odd views on English law were also on display in the papers for the September 20 national council - on a different issue, relating to whether the EC can treat the creation of two rival LU branches in Glasgow as an ‘organisation’ question, or whether, having been referred to the DC, it has to be treated as a ‘disputes’ issue. Four members of the DC assert that, “Where an issue is a disputes issue and is being handled by those organs dealing with disputes and is then taken out of the process by the executive, there is a clear breach of the judicial process in the party as well as a breach of the constitution. The legal impact of this is that those members of the executive branch who have taken this decision make themselves jointly and severally liable in the event of any legal claim resulting from such action by any member affected by it.”

Since, however, the DC has no clear, agreed remit, the ‘safe spaces’ policy having been referred back, the legal argument offered here is manifest nonsense: it is not as a matter of law a breach of contract or judicially reviewable for LU bodies to take different views on the scope of DC business, where there has been, as yet, no clear conference decision on the scope of the DC’s remit. If anything, the LU constitution provision - “Its role will be to investigate disputes and complaints about the behaviour of individual party members referred to it ...” - would probably be construed in court as ejusdem generis (‘of the same kind’: ie, that the phrase, “about the behaviour of individual party members”, limited the meaning of the “disputes” which are DC business, so that the EC’s view complained of is probably right as a matter of English law.

On June 24 the DC made a statement to the executive committee on the Manchester issue. The statement reasserts that comrade McCauley is “refusing to cooperate”, which - as can be seen from the email quoted - means merely that he is refusing to accept the DC’s imposed requirement of confidentiality. There is not the slightest suggestion of any refusal to cooperate other than refusal to accept the demand for such a commitment.

The minutes of the executive meeting on July 26 show that the EC “supports the request for confidentiality for DC processes and urges party members to cooperate with the process”. It “agreed to refer to NC to consider implications where party members refuse individually or collectively to comply with DC and party processes”. It does not appear that the NC on September 20 considered the issue.

In any case, what started out as a stupid piece of misbehaviour by the majority in the inquorate Manchester branch meeting, connected to the Hedley allegations witch-hunt, has now turned into an important issue of political principle: should the proceedings of the LU disputes committee be subject to a requirement of confidentiality?

Behind this is another ‘confidentiality’ issue: should LU branch meetings (which, incidentally, are commonly advertised to the public) be immune from reporting? But this is a more general issue about the conduct of politics. This paper has argued repeatedly in favour of transparency in politics in general, and has practised and continues to practise it, against the wishes of those who would prefer to keep political differences private. Confidentiality in quasi-judicial disciplinary proceedings is the more immediate problem. And it is inseparable from the issue of open or secret trials, which has a long history.

Open and secret trials

The history of the issue of open or secret trials may go back as far as old kingdom Egypt (c 2649-2150 BCE) and the old Assyrian period (c 1950-1840 BCE).5 But the first point at which we have extensive evidence is in classical antiquity.

Trials in ancient Athens (400s-300s BCE) were unambiguously public, before large juries of citizens.6 In late republican Rome criminal trials, inheritance cases and repetundae trials, where public officials were accused of extortion, were also public before juries of citizens. Ordinary civil disputes had a bifurcated structure: the first stage, usually before the praetor (the judicial magistrate) formulated the issue in dispute, and appointed a iudex (judge) chosen by the parties; the second, before the iudex, established the disputed facts and the outcome. Process before the praetor was certainly public; process before the iudex is less certain, but it was certainly public enough for the advocate, Cicero, to publish his speeches before iudices as well as those before juries.7

Towards the end of the 1st century BCE the Roman republic collapsed and was replaced by a military dictatorship, originally under Augustus: the ‘empire’. At first the dictatorship took a disguised form, with republican constitutional forms partially maintained: the ‘principate’. Later, from around 300 CE, the monarchical character of the regime was openly accepted: the ‘dominate’. Under the empire there was a gradual tendency for first the open criminal trials before juries, and then also civil procedure before the praetor and iudex or recuperatores, to be replaced by private investigations conducted by imperial bureaucrats or by the provincial governor or his deputy: the cognitio procedure. The shift seems to have started in connection with treason and spread outwards (just as in modern times special procedures for anti-terrorism cases tend to be generalised).8

The fall of the western Roman empire in the 400s CE produced a return to public trials before lay collective local or central courts for all sorts of claims.9 The 1100s CE, however, saw what RI Moore has called The formation of a persecuting society (Oxford 1987); and in this context private cognitio procedure was revived, initially for treason and heresy cases (heresy being argued to be ‘treason against god’), but, as in the Roman empire, spreading outwards to encompass broader fields.10

The secret character of the church court heresy procedure became controversial in England in the early 1500s, after the 1512-14 case of Richard Hunne, who was accused of heresy after he challenged in the secular, common law courts a church court decision in a dispute with his local parson. Hunne “committed suicide” in the Bishop of London’s prison.11 In A treatise concerning the division between the spiritualty and temporalty (1532), common lawyer Christopher St German objected to the private character of the church’s heresy jurisdiction as inconsistent with the right to know the charges against you and your accusers (which is in the Bible ...). In 1533 ‘Saint’ Thomas More responded with his Apology, St German replied to this with Salem and Bizance (Jerusalem and Byzantium) and More came back with The debellation of Salem and Bizance. More’s core argument was that without the use of secret trials, unidentified accusers and so on, “heretics would swarm the streets”. How true ... after the Heresy Act 1534, which transferred trials to the public, common law courts, heretics and even atheists, pagans and so on have indeed eventually come to “swarm the streets”.12 But perhaps we prefer it this way ...

Secret trials were thus the hallmark of the inquisition, whether Spanish or papal. They were also the hallmark of the early modern European witch-hunts: the secret examination of witnesses - and the use of torture to force the defendant to confess and implicate others - were essential to the spread of the contagion of the suspicion of witchcraft. Their absence in the English common law produced the relative infrequency of witch trials in England in the period when they were at their height in Europe (and Scotland).

A particular species of secrecy which was adopted by the European laws, but only by some aspects of English law, was the secret examination of witnesses by judicial officers in the absence of the parties. The results were not usually permanently secret; rather, the witnesses’ statements were written down as ‘depositions’ and later ‘published’ to the parties, and commonly read out in open court at the public hearing.13 Nonetheless, early modern common lawyers objected to this procedure, fundamentally on the ground that witnesses were more likely to lie in private than in public, but also on the ground that public oral adversary cross-examination was more likely to bring out inconsistencies in the witness’s statement or facts favourable to the adverse party than examination by a judicial officer on pre-written interrogatories.14 The infamous Court of Star Chamber, abolished in 1641, used this procedure - and in its ore tenus procedure did not disclose to the accused the charges against them until after they had been interrogated with a view to obtaining a confession to some crime. But it did not go so far as to hear cases wholly in private.

The issue of secret trials resurfaced from the 1760s, when the British government used vice-admiralty courts (using European-style procedure with secret examination of witnesses) to prosecute cases involving the Navigation Acts (requiring trade to pass through London) and its unpopular revenue laws.15 The result of this history, together with the drafters’ consideration of earlier rights documents and debates, was the adoption of the sixth amendment to the US constitution, requiring that, “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.”

In the French Revolution, public trials was also posed as a political issue, at least as far as criminal trials were concerned, by the secrecy of the procedure of the ancien régime, and the revolutionaries very early adopted a system of public criminal trial partly modelled on the English system. It was the Thermidorean reaction and the Bonapartist regime which partially restored ‘inquisitorialism’ in this field in France.16

Between then and the recent past, public trial has been the basic norm. But secret trials have been creeping back. Surprise, surprise, the ‘war on terror’ and anti-terrorism legislation is a central disputed area.17 Other areas are ‘superinjunctions’, which prohibit reporting even the existence of the judicial decision, used by celebs and corporations to avoid embarrassment; and the family courts, where secrecy in the name of protecting children also protects ... judges from public criticism.18

There are two patterns in this long history. First, there is a historical pattern. Ascendant ruling classes tend to limit the powers of the bureaucratic-coercive state; they rule successfully themselves because they are driving the development of the society forward. As they begin to lose this authority, they become more statist and more power is conceded to the state. We have entered into the period of decline of capitalism, and with this decline comes increased statism. The increased use of secret trials and the fact that ‘confidentiality’ and ‘privacy’ are increasingly normalised arguments are one and the same phenomenon. The idea that we can argue from this ‘normality’ to how our disputes procedure should work is to internalise the existing decaying capitalist order.

Second, secret trials are normally an instrument of bureaucratic-coercive state (or church) authoritarianism, and the demand for public trials is a demand for accountability of those above to those below. In this sense, for LU to commit itself to ‘confidentiality’ of its disputes procedure risks LU identifying itself politically with the later Roman empire, the papal and Spanish inquisitions, the French ancien régime, Thermidor and Bonapartism, the contemporary British security service and the elite users of superinjunctions.

Internal affairs

Of course, it may be argued that the disputes procedure is about LU’s internal affairs, and so completely different from the question of trials in the public courts. This argument would be profoundly mistaken.

In the first place, judgment against a defendant in a criminal or civil proceeding expresses the society’s collective disapproval of the defendant’s conduct - even if it is merely holding on to a thing which the court decides belongs to the claimant. At minimum this requires that the outcome must be public, the principle violated by superinjunctions. Moreover, the society delegates this decision to judges and juries, but - rightly - does not entirely trust them: there is too long a history of abuse of the judicial power for personal (bribery, etc) or political ends.19 Society has therefore insisted on public trial as a safeguard against this abuse. It is not merely a safeguard against people being wrongly jailed.

These principles obviously apply with equal force to the internal disciplinary procedures of a political party. A DC decision against a member expresses the party’s collective disapproval of that member’s conduct. We collectively delegate that decision to the DC and perhaps the appeals committee. Again, at minimum this requires that the outcome must be public. And the accountability of the DC requires that the proceedings be public - not necessarily in the sense of courtroom trial, but at least in the sense that there is no norm or requirement of confidentiality. It should be exactly obvious that half the problem in the ‘Delta’ case was that the normal secrecy of the SWP DC’s proceedings meant that justice could not be seen to be done.

Secondly, LU is obviously not running a public criminal judicature. It does not have the resources. This is again a lesson of the ‘Delta case’, and one at least of the drafts of the ‘safe spaces’ policy rightly recognised the point. But it is also the case that we, the left in general, including LU, are suspected by the general public (and by a good many anarchists and unorganised lefts) that if we did have political power and had to run a public judicature, it would be like that of Stalin’s Russia (and similar states). This suspicion is understandable for the reasons given at the beginning of this article. Since we do not have political power, we cannot demonstrate that this suspicion is false by actually providing an honest public judicature. But we can allay these suspicions to some extent by showing that in our own disputes procedures we can avoid as far as possible doing worse than the British capitalist state’s judicatures.20

The effect of committing to a requirement of confidentiality in the disputes committee’s procedures is the opposite. It will be to reinforce suspicion that power is being abused (even where in fact it is not) and more generally to reinforce the Life of Brian and ‘little Stalins’ images of the left.

mike.macnair@weeklyworker.co.uk

Notes

1. Labour at least apologised afterwards - see ‘Labour issues apology to heckler’, BBC News, September 28 2005. ‘Unison monkey trial’: see Weekly Worker September 10 2009; or ‘£49,000 for union activists branded racist over “wise monkeys” pamphlet’ Evening Standard September 11 2013.

2. The ISN promptly split again over ‘intersectionality’ issues. The SWP’s ban on ‘factionalism’ had in the recent past already produced another two splinters, John Rees’s Counterfire and Chris Bambery’s International Socialist Group (Scotland), though it is not clear that what separates these groups is anything more than genuflection to Scots nationalism.

3. http://en.wikipedia.org/wiki/Liberum_veto is a convenient summary.

4. http://leftunity.org/safe-spaces-policy-latest-draft.

5. R Westbrook (ed) A history of ancient near-eastern law Leiden 2003, Vol 1, pp109-10 (Egypt; public, but possibly private in treason cases), and pp442-43 (Assyria; public).

6. There is a useful discussion in SC Todd The shape of Athenian law Oxford 1993.

7. Criminal procedure: OF Robinson The criminal law of ancient Rome Baltimore 1995, chapter 1; res repetundae:A Lintott Judicial reform and land reform in the Roman republic Cambridge 1992, chapter 2; civil procedure: outline in JAC Thomas Textbook of Roman law Amsterdam 1976, part 2; public character of the trial to be inferred from advocacy: JA Crook Legal advocacy in the Roman world Ithaca NY 1995.

8. W Turpin, ‘Formula, cognitio and proceedings extra ordinem’ (1999) Revue internationale des droits de l’antiquité Vol 46, pp499-574; Y Thomas, ‘Arracher la verité: la majesté et l’inquisition (Ier-IVe siècles ap JC)’ in R Jacob (ed) Le juge et le jugement dans les traditions juridiques européennes Paris 1996, chapter 1 (role of treason).

9. W Davies and P Fouracre The settlement of disputes in early medieval Europe (Cambridge 1986) is usefully comparative.

10. For one of its features, the use of torture to extract confessions, see Y Thomas in note 8 above (Roman law); JH Langbein Torture and the law of proof Chicago 1977, part 1 (European laws).

11. Oxford dictionary of national biography study note Hunne, Richard (d 1514).

12. J Guy, ‘Thomas More and Christopher St German: the battle of the books’ in A Fox and J Guy (eds) Reassessing the Henrician age Oxford 1986, chapter 5.

13. M Macnair The law of proof in early modern equity Berlin 1999, chapter 5 provides a convenient, very summary account.

14. Ibid pp247-48 and sources cited there.

15. C Ubbelohde The vice admiralty courts and the American revolution Chapel Hill NC 1960.

16. E Esmein History of continental criminal procedure Boston MA 1913, pp397-400, 402, 408-34 for the issue and the initial reforms; pp437-527 for the Thermidorean and Bonapartist development.

17. See, for example, ‘Terror trial to be heard in secret despite open justice victory’ The Daily Telegraph June 12 2014 (and James Turley’s comment Weekly Worker June 26 2014); and my own earlier article, ‘From Belmarsh to Rangoon’ Weekly Worker February 3 2005.

18. Superinjunctions: http://en.wikipedia.org/wiki/2011_British_privacy_injunctions_controversy; cf also the Trafigura controversy in 2009: http://en.wikipedia.org/wiki/Trafigura. Family courts: see, for instance, ‘New plan to end secrecy in family courts’ The Daily Telegraph August 19 2014.

19. Googling ‘judicial corruption history’ produces 20.4 million hits. The issue is central to the origin myths of both ancient Athenian and Roman law (the laws of Solon, the Twelve Tables). For some relatively recent examples in our own history see M Macnair, ‘Arbitrary chancellors and the problem of predictability’ in E Koops and W Zwalve (eds) Law and Equity: approaches in Roman law and common law Leiden 2013, chapter 4.

20. Cf my ‘Bureaucratic “justice” and dealing with sex assault cases’ Weekly Worker April 18 2013.