Hodging their bets
Labour’s Kafkaesque disciplinary procedure is part of the ongoing attacks on free speech, writes Mike Macnair
On August 7 the Labour Party bureaucracy withdrew its investigation into Margaret Hodge for (allegedly) shouting abuse at Jeremy Corbyn. This would be excellent news - if it had been done for the right reason. The use of party disciplinary procedures against people who get angry and shout is an extremely bad idea.
In fact, however, this seems not to be what has happened. While ‘Labour sources’ have briefed that Hodge has expressed regret for losing her temper, she has issued through her lawyers an explicit denial than this is the case (peculiar, since it can hardly be imagined to be defamatory to claim that someone has expressed regret for losing their temper, given that there does not seem to be any dispute that Hodge did shout at Corbyn). What Hodge wants us to believe - and may well be true - is that the Labour Party apparatus has been induced to back off by legal threats.1
Meanwhile, Ian Austin, MP for Dudley - in the past one of ‘Gordon Brown’s boot boys’ and a man who had to apologise in 2012 for making a false allegation of holocaust denial against a Palestinian rights campaign2 - has published his own lawyers’ letter to Labour HQ in relation to an allegation of ‘abuse’ similar to that against Hodge. Austin’s lawyers claim - certainly rightly - that the Labour Party’s disputes procedures are “Kafkaesque” and failing to “observe the most rudimentary principles of natural justice”.
The problem, of course, is the stunning double standards involved. Of course, neither Hodge’s nor Austin’s lawyers can be blamed for pointing out that their clients are being victimised by a disciplinary regime which violates the elementary principles of natural justice, and which constitutes attacks on freedom of speech. That is their job. It is whoever has advised that this “Kafkaesque” system is acceptable - or who has stood up in court to defend employers’ Kafkaesque disciplinary procedures and develop the precedents which purport to support this regime - who is in violation of the duties lawyers ought to owe to the integrity of the legal system.3
But Austin and Hodge themselves - and their political and media backers - are positively calling for allegations of “anti-Semitic” speech to be dealt with more summarily - that is, more in violation of the principles of natural justice. Indeed, several ‘anti-Semitism’ cases already dealt with have been characterised by the party bureaucratic prosecutors abandoning such charges in mid-stream, only to proceed on wholly different grounds.
And the anti-Corbyn ‘anti-Semitism’ campaigners’ agenda is itself for a systematic violation of freedom of speech. It attempts to use the so-called “internationally agreed” definition of anti-Semitism to prohibit in the UK forms of criticism of the Israeli state which are commonplace in the Israeli press (comparisons with apartheid, and so on). Hodge’s and Austin’s arguments through their lawyers thus involve them in obvious double standards.
The problem is that the Labour apparatus’s response to this double-standards attack - to try to discipline Hodge and Austin for ‘abusively’ attacking the leadership - is to jump on the wrong side of the double standard and try to hold a line which is indefensible.
The stunning unanimity of the British media in promoting the ‘big lie’ campaign about ‘anti-Semitism’ in the Labour Party makes it clear that this campaign is neither just a product of Tory electioneering nor just of lobbying by the Israeli state (let alone any idea that it is the work of British Jews, some of whom have persuaded themselves of the big lie and got het up about it). To get such unanimity there must be briefings and pressure from the state core (the armed forces, security services and home and foreign offices) - most probably delivered particularly by some part of the security services.
Nor is it simply a campaign against Corbyn; though it is certainly the case that the securocrat core of the British state and the politicians and journos this group briefs believe that Corbyn is an unacceptable prime minister on national security grounds.4 But the idea that anti-Zionism is ipso facto anti-Semitism began to be used in the USA as a device to restrict free speech on the Israel question from the 1980s,5 and the IHRA ‘definition’ spun for this purpose dates back to June 2015, so that the project was in progress before Corbyn ‘won’ the Labour leadership TV debate on June 16 that year.6
Nor is it just about the UK. By 2014 ‘anti-anti-Semitism’ had had a powerful influence on Die Linke in Germany; by 2016 the pro-Israeli line had won over Syriza.7 A very similar campaign about ‘rising anti-Semitism’ based on a limited number of real incidents, but again blaming ‘new anti-Semitism’ allegedly due to hostility to Israel, and demanding more support for Israel, is being waged in France and by US media outlets about France.8
The source of this campaign is not that there is a rising tide of anti-Semitic incidents and attacks. There is at the most a slight rise within an overall low level. The exceptions are the overtly anti-Semitic policies and ‘holocaust guilt revisionism’ of the Hungarian Fidesz and Polish Law and Justice parties (in both cases immunised from criticism thanks to their support for the Israeli regime. Rather, the ‘new anti-Semitism’ campaign responds to and is primarily focussed on countries which failed to back the US in the invasion of Iraq (France, Germany) or experienced a mass anti-war movement (the UK).
What is demanded is blank-cheque support for the ‘right to exist’ of the state of Israel. This blank-cheque support will be cashed in demands for blank-cheque support for Israeli action against ‘existential threats’. For Corbyn’s Labour right opponents, these ‘existential threats’ already include Hamas in Gaza and any attempt to break the illegal siege of that territory. They will very soon include the Iranian regime - already claimed by both Israeli and US politicians to be an ‘existential threat’ to Israel.
In short, the USA has a geopolitical interest in retaining ‘blocking control’ of the Middle East at the expense of potential rivals (France, Germany, Russia, China). It will retain this interest as long as the current shape of military technology - armoured vehicles and aircraft at the sharp end, and trucks for logistics - continues; because this shape of military technology makes access to oil supplies fundamental to military capability. Israel is pivotal to this blocking control, but there are other independent US interests - against Iran, against the Syrian Ba’athist regime and its willingness to give Russia basing rights, and so on.
Because US interest is at the expense of the European, Russian and Chinese states, there is a logic in which these states attempt to develop their own Middle East policy. The US has an interest in trying to make such independent policies politically illegitimate. It is this interest which is reflected in the ‘IHRA definition’ and in the Europe-wide campaign around ‘new anti-Semitism’.
It is an interest which is shared by the British state core, which long ago accepted a role as a subordinate ally of the USA. The British state was embarrassed by the open divisions over Iraq. It has more recently been deeply embarrassed by the failed and fatuous 2011 intervention in Libya, which both exposed total British military dependence on the USA and produced merely a failed state; and by the consequential 2013 failure to win a parliamentary vote to join US operations in Syria. All the more need for the British state to hype up the Europe-wide ‘new anti-Semitism’ campaign.
Corbyn is a particular target because of his role as a public leader of the Stop the War Coalition at its height; and because his winning the leadership of the Labour Party was a disaster for British capitalist and state political management. Further, the ‘anti-Semitism’ campaign has worked: like the leaderships of Die Linke and Syriza, the Labour leadership round Corbyn has responded to this smear campaign by giving more and more concessions and hostages to fortune.
The fundamental character of the Labour leadership’s response has been to give ground all along the line, throwing embarrassing supporters to the wolves, in the hope of defusing the issue and winning a general election on issues of economics alone.
Bringing disciplinary proceedings against Hodge and Austin appeared as a partial shift from this line. It seemed to ‘call out’ Hodge and Austin on the right wing’s double standards: that is, that whenever anyone gets angry at them, this is ‘abuse’ and ‘intimidation’; but, when they get angry at other people, it is merely ‘free speech’.
But, as the decision to back off seems to show, this is not a defensible line. The problems are that the Labour Party’s disputes procedures are systematically unfair, and therefore not defensible against anyone who can afford lawyers (and who will not be condemned by the judiciary’s political biases); and that the double standards are already built in to the idea of demanding ‘civility’ in political argument.
The fundamental objection of both Hodge’s and Austin’s lawyers to the Labour Party’s disciplinary investigations of their clients are that these proceedings are unfair because they fail to set out openly the charges against them - the rule which is claimed to have been breached, and how. This issue is inseparable from the issue of open or secret trials, which has a long history. It may go back as far as Old Kingdom Egypt (c 2649-2150 BCE) and the Old Assyrian period of Assyria (c 1950-1840 BCE).9 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.10 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.11
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 open criminal trials before juries, and then also civil procedure before the praetor and iudex, 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).12
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.13 The 1100s CE, however, saw what RI Moore has called The formation of a persecuting society (Oxford 1987); and in this context secret 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.14
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.15 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”.16 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 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.17 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.18
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 him until after he had been interrogated with a view to obtaining a confession to some crime. But the Star Chamber 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.19
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:
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, the issue of 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.20
Between then and the recent past, public trial has been the basic norm. But secret trials have been creeping back in. Surprise, surprise, the ‘war on terror’ and anti-terrorism legislation is a central disputed area.21 Other areas are ‘super-injunctions’, 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.22
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.
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. For Labour to try to defend its unfair disciplinary procedure leaves the party 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.
Of course, it may be argued that the Labour Party’s disciplinary procedure is about the party’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 onto 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.23 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 disputes decision against a member expresses the party’s collective disapproval of that member’s conduct. The party delegates that decision to disciplinary bodies. Again at minimum this requires that the outcome must be public. The accountability of the committee 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. And it is fundamental to basic fairness that the accused should know the case against them.
As I said earlier, whoever assured the Labour machine that these procedures were defensible was giving stunningly bad advice. Though the courts are moving towards secret and unfair trials for the benefit of the state (terrorism), and of business and the rich (superinjunctions) the Labour leadership cannot expect such favours.
The demand for civility requires us to think, briefly, about the figure of the polite bully. I guess everyone will recognise this character from their schooldays: the boy, or girl, who does not themselves and directly issue threats, and so on, but uses their position as prefect, or whatever - or merely their own popularity and their victim’s unpopularity - to make life intolerable for their target. A common outcome is that the target - the person bullied - ends up ‘cracking’, shouting at or attacking their tormentor, and then being disciplined by the school.
The polite bully should also be familiar from workplaces, working in the exact same way. In this context, the polite bully is usually someone who holds a position of power. Rude and violent bullies can also be found at work, of course; but not every workplace bully is even a David Brent. Polite bullying by policemen is also a commonplace.
In the Labour Party, polite bullying by elected representatives and full-time officials has been utterly normal for the last 20 years or perhaps longer. It has served to enforce the right wing’s monopoly control over the selection of candidates and over whose views can be permitted to be expressed - which, in turn, is a monopoly on behalf of the firms who pay lobbyists and contribute to MPs’ activities.
In this context, legislation - or party rules - to enforce ‘civility’ and ‘respect’ are apt to produce exactly the common result in school bullying cases: that the bully’s victim is penalised rather than the bully him- or her- self. Consider, for example, the ‘Unison monkey trial’ victimisation of Socialist Party activists over a leaflet;24 or the ejection of Walter Wolfgang from 2005 Labour Party conference for heckling Jack Straw over the Iraq war.25
Why? The answer is that the ability to bully comes not from the expression of anger, but from holding a position of power; whether it is an institutional position of power, as in the case of officials or elected representatives, or arises merely from relative popularity or the ability to manipulate, as in the case of class bullies.
The expression of anger makes a moral claim on the person to whom anger is expressed. This may be a claim against that person; or it may be claim for solidarity from the person being addressed against a third person or group. Whether it is morally justified to express anger depends, in essence, on whether the underlying moral claim is justified.
It may be tactically ineffective to express anger, yet morally justified; this is commonly the situation of the victim of polite bullying. It is, on the other hand, possible - and, indeed, true in a great many cases - that all that is possible is to express anger, and hope that this anger will either shame the bully or shame other people into solidarising with you. For an extremely important example, the Tory anti-union laws (maintained by New Labour) have made almost all coercive use of the strike weapon impossible, so that most strike action is exactly a protest which aims to shame the employer and evoke broader solidarity by displaying the anger of the strikers about how the employer is treating them.
The demand for ‘civility’ and ‘respect’, enforceable by disciplinary proceedings, is a demand that there be no expression of anger. The consequence is that it is, inherently, a demand that the existing social hierarchies of power should be maintained.
This point is not new. It was made by James Q Whitman in 2000 in his article, ‘Enforcing civility and respect: three societies’, comparing Germany, France and the US.26 Whitman argues that speech regulation on the basis of ‘dignity’ and ‘respect’ in Germany and France grew out of aristocratic claims that they be shown more respect than others. “American incivility,” Whitman concludes, “is woven into the cloth of the American egalitarian tradition.”
The history equally shows a persistence of ‘intimidation’ as a form of class struggle; and of objections to ‘intimidation’ as a means of protecting the boss’s right to threaten his or her employees with adverse economic consequences, but to penalise employees’ threats to the boss. Thus, for the 1700s, EP Thompson’s 1975 study of ‘The crime of anonymity’.27 Thus in 1807 MPs were intimidated into voting for the abolition of the slave trade.28 Thus in the early 1800s, ‘Nedd Ludd’ and ‘Captain Swing’, and in south Wales ‘Rebecca’. Thus the employers’ arguments, episodically through the 1800s and into the early 1900s, for keeping trade unions illegal on the ground that they ‘intimidated’ scabs.
Thus the decision in Rookes v Barnard (1964) to invent a loophole in the Trade Disputes Act 1906 for the benefit of employers under the name of ‘intimidation’; and thus the themes of the early stages of Heath’s, Wilson’s and Thatcher’s anti-union legislation, given to them by the legal profession.29
I do not mean by any of this to argue that threats and intimidation are to be the preferred means of political struggle. The point is, rather, that by illegalising most effective forms of collective action, whether by anti-union laws, or by central government and ‘judicial review’ control of local authorities, or by seizing control of the Labour Party through its right wing, the capitalist class have succeeded in restoring the politico-legal order of the restricted franchise (OK, you may vote, but only for the employers’ chosen candidates) and the Combination Acts. That is, that they have left only forms of intimidation as means of fighting effectively for collective interests.
Hence for the Labour leadership to try to enforce speech controls, designed to impose civility and respect, is to accept the whole principle of the anti-union laws and the regime of capitalist control. The double standard which Hodge and Austin rely on is built into the idea.
Labour needs to move in the opposite direction. It needs to openly defend free speech, including free speech on Israel - and thus including Margaret Hodge’s and Ian Austin’s rights to get angry and shout - but also the rights of those below to get angry and shout (whether orally or the online equivalent).
3. Cf D Howarth Law as engineering Cheltenham 2014, chapter 4.↩
4. See, for example, ‘Jeremy Corbyn’s Labour Party is a “national security risk”, defence secretary claims’ The Independent September 12 2015; ‘Jeremy Corbyn is a danger to this nation’ The Daily Telegraph June 7 2017; ‘John Woodcock: Corbyn is a security risk, says MP who quit Labour’ The Times July 21 2018.↩
5. Chomsky’s 1989 book Necessary illusions already addresses the issue.↩
7. www.jacobinmag.com/2014/12/the-germans-lefts-palestine-problem; ‘Tsipras comes to Jerusalem: Israel and Greece’s ambivalent relationship’ Haaretz January 26 2016.↩
8. About 10 million hits for “antisemitism France” with early pages bringing up numerous such stories.↩
9. R Westbrook (ed) A history of ancient near eastern law Leiden 2003, Vol 1, pp109-110, pp442-43.↩
10. Useful discussion in SC Todd The shape of Athenian law Oxford 1993.↩
11. 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 1995.↩
12. 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).↩
13. W Davies and P Fouracre The settlement of disputes in early medieval Europe (Cambridge 1986) is usefully comparative.↩
14. For one of its features, the use of torture to extract confessions, see Y Thomas above note 8 (Roman law); JH Langbein Torture and the law of proof Chicago 1977, part 1 (European laws).↩
15. Oxford dictionary of national biography sn Hunne, Richard (d 1514).↩
16. 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.↩
17. M Macnair The law of proof in early modern equity Berlin 1999, chapter 5 provides a convenient, very summary account.↩
18. Ibid pp247-48 and sources cited there.↩
19. C Ubbelohde The vice admiralty courts and the American revolution Chapel Hill 1960.↩
20. E Esmein History of continental criminal procedure Boston 1913, pp397-400, 402, 408-434 for the issue and the initial reforms; 437-527 for the Thermidorean and Bonapartist development.↩
21. See, for example, ‘Terror trial to be heard in secret despite open justice victory’ The Daily Telegraph June 12 2014; and my own earlier article, ‘From Belmarsh to Rangoon’ Weekly Worker February 3 2005.↩
22. 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: eg, ‘New plan to end secrecy in family courts’ The Daily Telegraph August 19 2014.↩
23. Googling ‘judicial corruption history’ produces 20 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 a some relatively recent examples in our own history, see M Macnair, ‘Arbitrary chancellors and the problem of predictability’ in E Koop’s and W Salve (eds) Law and equity: approaches in Roman law and common law Leiden 2013, chapter 4.↩
24. ‘The Unison monkey trial’ Weekly Worker September 9 2009.↩
25. ‘Heckler, 82, who dared called Straw a liar is held under terrorist law’ The Daily Telegraph September 29 2005.↩
26. 109 Yale Law Journal 1279-1398.↩
27. In D Hay et al (ed) Albion’s fatal tree London 1975, chapter 6.↩
28. S Drescher, ‘Whose abolition? Popular pressure and the ending of the British slave trade’, 143 Past and Present p136 (1994).↩
29. A part of the very extensive literature on this history is cited in M Macnair, ‘Free association versus juridification’ Critique No39 pp53-82 (2011).↩