WeeklyWorker

20.11.2014
Who judges the judges?

Good intentions and the road to hell

Where now for disputes and ‘safe spaces’? Mike Macnair examines the issues

Fortunately, the Left Unity conference rejected the ‘safe spaces’ document proposed by Felicity Dowling, Terry Conway et al. But this is only a temporary reprieve, since conference also in the end rejected the alternative proposed by Tina Becker and Robert Eagleton (based on Communist Platform’s draft). So the issue will surely be re-addressed next year.

Also, very regrettably, conference accepted the mistaken approach of the disputes committee to its work over the last year and its procedures. So LU goes forward having adopted by this indirect route commitments to secret inquisitorial trials in internal complaints and disputes, without recognition of the basic obligation to hear both sides.

It has also committed to operating a body which clearly is, as a matter of English law, quasi-judicial (it determines civil rights and obligations in relation to the contract of membership between LU and its individual members), but explicitly denies that it is quasi-judicial or has the obligations of this role.

And conference has adopted a report which is very probably actionably defamatory of some of the identifiable individual members dealt with by the DC - particularly those suspended (a course of action it claims is in these cases necessary for the safety of other members). The defamation risk is precisely because, having refused to report any information about individual cases, it inevitably makes by innuendo serious, unsupported allegations against any and all of the small number of people it has dealt with.

Communist Platform will not back any litigation against LU, and other members are probably unlikely to think it desirable or worthwhile to sue. But the LU officers would certainly be well advised to take formal legal advice, from specialists in (a) the law of voluntary associations and (b) defamation law, about the party’s potential liabilities created by these decisions.

Safe spaces

The substantive arguments around ‘safe spaces’ are reported in Yassamine Mather’s article opposite. Here I am concerned with how we got to the situation where no real decision either way was taken, and how we go forward from here.

As I reported in my November 13 article, ‘How to vote at conference’, the standing orders committee ruled the third alternative motion on this topic, ‘A brief guide to party solidarity’ (proposed by the disputes committee), out of order on the ground that the DC had no standing to submit motions.1 The motion was then submitted by Tony Aldis and Gioia Coppola as a ‘delete all’ amendment to the ‘safe spaces’ policy. The SOC now ruled this out of order on the ground that ‘delete all’ amendments are unacceptable.

As to the principle involved in SOC’s second ruling, it is true that such amendments are in general undesirable, as are very long amendments, which would be better expressed as motions. But, where, as in LU’s practice, there is no opportunity to see the motions submitted until after the deadline, rejection of ‘delete all’ amendments in effect silences those who, on reading the original motion, decide that the flaws in it are so fundamental that it is necessary to present a full alternative. The result of refusing such amendments is then likely to be anger and a messy procedural argument.

So it proved. On Saturday morning John Tummon moved rejection of the SOC’s report on two points. The first was to admit to discussion and voting on the ‘Brief guide to party solidarity’ proposal. This was clearly carried on a show of hands. The second was to admit an emergency motion from Greenwich and Lewisham, which stated that the DC had no power under the LU constitution to suspend members. This was clearly lost (56 votes for, 70 against, abstentions not counted).

Between the Saturday and Sunday sessions, supporters of the ‘safe spaces’ policy document met and came up with what they called a “composite” between their document and the ‘Brief guide to party solidarity’. This consisted of adding to the ‘safe spaces’ document several items, including: (1) provision for a meeting between the ‘safe spaces’ commission, the DC and the LU leadership to take discussions further; and (2) the following passage from the ‘Brief guide’:

B3. Members who bring LU into disrepute - eg, by subjecting other LU members or supporters to violence or intimidation or who steal party property - will be subject to suspension and/or termination of their membership. Any police agents, racists, fascists, misogynists or homophobes discovered in our ranks face automatic termination of their LU membership. We take seriously the security and the protection of LU and all of its members.

The first that conference - or the chairs of the session - heard of this “composite” was in Felicity Dowling’s speech introducing the ‘safe spaces’ document. Comrade Tummon immediately rose to object to the admission of this “composite” to the agenda. It was not clear who had been consulted in constructing it, but he, who had been involved in drafting the original ‘Brief guide’ and had successfully moved rejection of SOC’s decision to rule this out of order, had not. Conference voted narrowly to admit the “composite”: 77 for, 71 against, abstentions not counted. We thereby in effect reversed Saturday’s decision to overturn the SOC’s original ruling; the debate would offer, as the only alternatives, the latest ‘safe spaces’ version, and the Becker/Eagleton proposal.

The discussion heard eight speakers from the floor. Four were supporters of the “composite” (Terry Conway, Anna Fisher, Bianca Todd and Susan Pashkoff). Two were supporters of the Becker/Eagleton alternative (Sarah McDonald and the seconder, Robert Eagleton). One, Simon Hardy, spoke against the procedure of late compositing, as an “access issue” (ie, it is very hard for people with vision and/or hearing issues to get clear what had been proposed; in reality, it is very hard for damn near everyone, including the chairs) and against the added section B3 from ‘Brief guide’ quoted above, as being counterposed to LU’s aim of a mass party - surely it would be better to recruit those who generally agree with us, but may have some racist or homophobic prejudice, and try to win them. He drew attention to the use of such policies against the left in the student movement. The final speaker, Ruth Cashman, made very similar points: the adoption of the latest ‘safe spaces’ proposal would mean that LU intended to recruit only the very pure.

This was not an unfair or unbalanced allocation of speakers. But in effect, the limits both on number of speakers and on speaking time meant that it was quite impossible for anyone (even the movers when they summed up) to respond to anyone else’s arguments. This is endemic in the ‘plebiscitary’ procedure adopted by LU of having numerous items crammed into agendas, as I pointed out in my November 12 article.

What happened was that, following a procedure recommended by the SOC, the ‘safe spaces’ “composite” and the Becker/Eagleton alternative proposal were voted against each other as counterposed proposals, with ‘abstentions’ counting (as the chairs had to explain) as votes against both proposals. In this vote, 65 voted for the Becker/Eagleton alternative, 61 for the “composite” and 36 against both. The Becker/Eagleton alternative proposal thus had the plurality, and a vote was now taken whether to ratify it as the decision of conference. This was defeated - 68 for, 79 against, abstentions not counted. This meant that the ‘safe spaces’ crew actually preferred to have no code of conduct at all if their own proposals were rejected.

I am told that some supporters of ‘safe spaces’ have approached the movers of the alternative with a view to discussions. This is welcome, but it has, of course, yet to be seen how productive such discussions can be. While there is no doubt that the alternative based on the Communist Platform’s draft can be strengthened, improving the ‘safe spaces’ document from our point of view would involve more radical surgery. If we thought the document could be made acceptable by minor amendments we would not have put forward a counterproposal. The question posed by discussions between the two sides is then how radically ‘safe spaces’ supporters are willing to reshape their proposal and, conversely, how many of the CP’s major objections we would be willing to give up, for the sake of getting agreement.

There is another question. What did the 36 people who voted against both proposals - who must be taken as representing a broader current of opinion beyond conference - want? I do not know how Simon Hardy or Ruth Cashman voted; neither positively recommended a vote for the Becker/Eagleton alternative proposal, so I do not know if their speeches represented this group. What they both did argue was rejection of ‘B3’ from the DC ‘Brief guide’ as committing LU to create a ‘party only of the pure’. The point is explicit in ‘B3’. Hence, it may be that ‘safe spaces’ supporters shot themselves in the foot with the “composite”: both because it looked like an anti-democratic manoeuvre, and because ‘B3’ was objectionable to people who did not accept the Becker/Eagleton alternative proposal.

Communist Platform comrades have argued that even without this explicit commitment to a ‘party only of the pure’, it is implicit in the ‘safe spaces’ document. It is not clear whether the comrades who voted against both texts understand this point, though the underlying 1970s women’s movement argument for ‘prefigurative politics’ in the form of ‘The personal is political’ was there in both Terry Conway’s and Susan Pashkoff’s speeches from the floor in the debate.

Disputes and trust

The discussion on the disputes committee report and draft standing orders was even more cramped. After Shelia Mosley introduced the report (by reading parts from it) I moved reference back very briefly. This was defeated on show of hands.

Joseph Healy then introduced the DC standing orders proposals. He argued that the DC had been forced to introduce suspensions without any constitutional power to do so, in order to prevent branches disintegrating. Confidentiality was vitally important and the amendments which would get rid of it (Sheffield) or water it down (Phil Pope and Mike Thomas) were to be rejected: vulnerable people had to be protected, and in addition a DC member who was a solicitor had advised that otherwise the DC would have no protection from defamation liability.

Tina Becker moved the Sheffield amendment A1, arguing for transparency. Phil Pope did not have enough time to explain fully the five amendments he and Mike Thomas were proposing (A2), but spoke to three of them - on referring criminal cases to the police, on suspension and on confidentiality. Anna Fisher moved amendment A3, which contained two points: the first to make the use of suspension more exceptional; the second to require the DC to decide on a case-by-case basis whether to investigate allegations, rather than using suspension as a threshold for investigation.

From the floor, Terry Conway spoke against Sheffield’s amendment on the ground that it was inconsistent with current law (that is, the Youth, Justice and Criminal Evidence Act 1999, chapter II, which prohibits cross-examination in person - not by counsel - in trials for sexual offences and of child witnesses in trials for child abuse offences). Lesley Mahmood raised the same point, relying on the recent suicide of a woman facing charges of making up a rape claim.2 Brian Green, from Norwich, who has been under suspension, attempted to raise the question of his own treatment by the DC, but was stopped by the chair. The reply for the DC insisted (as the documents do) that they do not see themselves as a quasi-court.

In the voting, the Sheffield amendment was defeated on a show of hands. The Pope/Thomas amendments were voted on in parts. The first sensibly removed a requirement to report all crimes to the police and replaced it with a statement that the DC would not “discourage or impede” potential victims of crime from reporting. It was carried. The next three fell: the fifth, which would allow the national secretary and executive committee to refer cases to the DC, was accepted. The Fisher amendments were both carried on show of hands.

Arguments in favour of ‘safe spaces’ and DC confidentiality, etc showed a certain amount of what can roughly be called ‘hedge-lawyering’. One justification of confidentiality offered was the right to privacy in article 8 of the European Convention on Human Rights; this certainly does not require privacy in relation to allegations made by or against you with a view to some sanction being imposed. The advice on defamation given by a DC member is, in the form in which it was reported, nonsense: ‘domestic tribunals’ like the DC do not have absolute privilege like courts, but they are protected by qualified privilege in reporting to, say, LU members, as long as their reports are not malicious. As I indicated above, the effect of a ‘no particulars’ report like that accepted by conference is that it is more likely to be actionable.

Cross-examination by the defendant in person in rape and child abuse cases is quite irrelevant, since all the versions - ‘safe spaces’, ‘Brief guide’, and the Becker/Eagleton alternative proposal - are rightly agreed that such serious cases should not be dealt with in-house. The DC is concerned with much less serious allegations - which are also, precisely because they are much less serious, far more likely to be exaggerated or wholly fabricated than rape claims. People with any length of experience on the left will have encountered the phenomenon several times. The argument that the DC is not a ‘quasi-court’ would not hold water in any real court.

Equally prominent, however, were arguments asking us to trust the authors of the ‘safe spaces’ policy or the DC. In relation to the latter, this was backed up with the point that we elected the DC in May. In reality, of course, members of the DC were elected unopposed. In a recently formed organisation, which has persistently too few bodies to fill posts, election does not in itself imply trust.

But the real point is more fundamental. Trust is not something automatic, except between a young child and its parents on whom it depends. Among adults, trust has to be earned by trustworthy behaviour. It is foolish to expect members of LU, only recently formed, to take on trust officers, committee members, etc, of whom they have little experience. All the more so since many ex-members of the Labour Party, or of left groups, have experienced persistently untrustworthy behaviour from leaders.

In this context, procedures like the late ‘compositing’ of the ‘safe spaces’ document tend to reduce trust. So does the adoption of secret inquisitorial trials and reporting only in generalities on the part of the disputes committee. I have every sympathy with the burden placed on DC comrades in the last year. I do not wish to suggest that their intentions are not good. But the road to hell is notoriously paved with good intentions.

mike.macnair@weeklyworker.co.uk

Notes

1. In my article I mistakenly said that the SOC ruled out the DC’s motion after the deadline. It turns out that it actually did so before the deadline, but communicated only with Alan Story of the DC, who was by then suspended (by the DC!) from LU membership.

2. www.bbc.co.uk/news/uk-29946823.