WeeklyWorker

15.07.2021
Expecting judges to take our side is naive in the extreme

Courts are not our friend

Failure of legal attempt to challenge the ‘anti-Zionism equals anti-Semitism’ witch-hunt exposes broad-left illusions in ‘fairness’ and ‘playing by the rules’. Mike Macnair explains

On July 8 Mr Justice Butcher handed down a judgment comprehensively dismissing the claims of several Labour party members victimised in the ‘anti-Semitism’ witch-hunt-cum-smear campaign that their Labour ‘disciplinary proceedings’ were unfair. On July 12, the court awarded the party £110,000 in costs, which will function to deter further litigation of the same sort: part of the routine modern practice by which the monarch franchises to the English legal profession the selling and denying of justice in violation of Magna Carta chapter 29.

The claimants have not even achieved the “day in court” which would expose the abuses of the Labour Party’s disciplinary procedures. There are two reasons for this. The first is that really fundamental British state interests lie behind the ‘anti-Semitism’ witch-hunt. The US alliance is essential to the British state - all the more so since Brexit; and the US has a fundamental geopolitical interest in negative control of the Middle East oil taps, the most fundamental weapon of modern war, against the continental Europeans and China, which leads to the intense support for Israel. It was this US and British state interest which lay behind the smear campaign, with the result that the mass media - liberal, Labour-rightist and state (BBC), as well as Tory - remains thoroughly disciplined in refusing to give any significant voice to any doubts about the ‘anti-Semitism’ narrative.

The second reason is that the claimants and their lawyers sought to defeat the Labour leadership in court, rather than merely to expose them: the politics of the claim were subordinated to its legalities. And there are two consequences. First, the claims Butcher J rejected would, if accepted, have had an utterly marginal impact. Second, the claimants gave a quasi-endorsement to a part of the smear campaign, the Equalities and Human Rights Commission’s biased report on anti-Semitism in Labour.

Judgment

What seems to be available directly online is simply Butcher J’s judgment.1 In earlier procedural manoeuvrings the claimants were more successful (although not losing at the earlier stage ends up merely increasing the costs).2 From the judgment, the points claimed which actually reached hearing were three. The first was that the disciplinary proceedings against the claimants were unfair because the ‘code of conduct’ under which they were charged had not been disclosed.3 The second was that the Equality and Human Rights Commission had found that the disciplinary procedure was unfair, that the party had accepted that it was unfair, and that, having done so, it was unfair to the claimants to proceed against them under the existing disciplinary procedure, rather than terminating the proceedings and starting afresh. The third was that the party had misrepresented the extent of the obligation of confidentiality under the disciplinary procedures. All three claims were rejected.

The line followed by Butcher J’s judgment generally is that, to start with, the Labour Party is an unincorporated association. Hence it is governed by its rules as a contract between the members - what the French call a contrat d’adhésion, in which the terms are non-negotiable. Hence, they are to be interpreted in the same way as commercial contracts generally. It is presumably for this reason that it was considered appropriate to assign a commercial law specialist (Butcher J) rather than a public law specialist to hear the case. Chapter 2, Clause II.7 of the party’s rules says:

Members have the right to dignity and respect, and are to be treated fairly by the Labour Party. Party officers at every level shall exercise their powers in good faith and use their best endeavours to ensure procedural fairness for members.

Butcher J made the point that this express requirement of procedural fairness in the rules ousted any possible implication of terms as to fairness, ‘natural justice’, ‘due process’, or whatever. The case-law on ‘fairness’ tells us (in particular, through Lord Mustill’s lead judgment in Doody - a 1994 case on the operation of life sentences):

The standards of fairness are not immutable. They may change with the passage of time, both in the general and in their application to decisions of a particular type …

[I]t is not enough for [the applicants] to persuade the court that some procedure other than the one adopted by the decision-maker would be better or more fair. Rather, they must show that the procedure is actually unfair …4

These two points together were decisive against the first claim. While the code of conduct had not been published, the evidence showed that the claimants (or their associates) had general knowledge of the contents before the proceedings. So they were not prejudiced by lack of detailed knowledge of it - in particular, by their inability to rely on paragraphs [13]-[16] of the Code of Conduct, which purport to protect debate about the legitimacy of the state of Israel as well as of its actions from accusations of anti-Semitism, though they contain extensive ‘weasel words’.

On the second claim, Butcher J simply found as fact that the EHRC report did not condemn the Labour Party’s disciplinary procedures as unfair, but merely demanded that they be ‘strengthened’ for the benefit of people making complaints of anti-Semitism. Hence the report, and Labour’s acceptance of its conclusions, had no implications for the fairness of the procedures against the claimants.

The third point was extremely narrow. The claimants challenged what they had been told about the supposed duty to keep information about the disciplinary process confidential. They did not challenge some right to keep the disciplinary proceedings confidential. In this context, the claim also fell foul of the objections to the first claim: the claimants had not shown that they were prevented from taking advice, so they had not shown actual unfairness. In addition,

If there was a breach of the fairness term, which, as I have said, I do not consider that there was, it would undoubtedly be at the less consequential end of the spectrum. The courts are very reluctant to intervene in ongoing disciplinary proceedings, and will only do so if the matter in question is such a breach as cannot be remedied in the proceedings themselves, and will not micromanage the disciplinary process (para [60]).

Boiling the frog

At this point it is necessary to step back slightly. For a considerable time, governments and the judiciary have been engaged in boiling the frog of the democratic elements of the UK’s ‘mixed constitution’ (falsely called ‘democratic’) so slowly that the frog does not jump out until it is too late. Butcher J’s judgment in the case on Labour’s disciplinary proceedings is, on this front, not innovative: but it, and the narrowness of the claimants’ claims, reflect how far the democratic elements have already been undermined.

‘Fairness’ is a modern concept which substitutes for the requirements of due process, as they were called in the 1300s, which began in the 1700s to be called rules of natural justice. Two of the rules involved have been traditionally expressed in Latin maxims: nemo iudex in causa sua (no-one can be judge in his own cause); and audi alteram partem (hear the other side). They are not the only rules, though modern legal writing tends to subsume others under these. There is also the right to notice of the case against you, which was central to the ‘due process’ statutes of the 1300s, and notoriously violated by the Court of Star Chamber abolished in 1641. Again, the right to confront the witnesses against you was already in the Bible and (some) Roman legal writing; it was argued for by Christopher St German in the 1530s, against the secret accusation procedure of the church courts, was legislated for in (among other places) the Treason Trials Act 1696, and adopted in the ‘confrontation clause’ as part of the Sixth Amendment to the US Constitution. The right to open public trial was similarly part of St German’s arguments, reflected in the Heresy Act 1534.

The background to all these rules is that state, or church, officials are prone to invent criminal or civil cases against people for collateral purposes - whether extortion, in response to bribery, for personal or politically motivated revenge, or other political purposes.

Contrary to common modern beliefs, judges are not merely by virtue of their position free from these temptations. They are different from arbitrators, in that their decisions have coercive power. They have this power because, if you do not obey the court order, sheriff’s bailiffs will come to enforce it. If you use enough force to resist the bailiffs, the police will turn up. If you use enough force to resist the police, police marksmen will come and shoot you. In the USA, the escalation can go further …5 The coercive power of the judicial judgment thus depends on the coercive capacity of the state, and judges should be expected to be biased in favour of the state and state officials.

The rules of ‘due process’ are then safeguards against the abuse of process by officials and judges, by insisting on certain procedural protections, whose effect is to ensure that the abuse of process, though it cannot be prevented, has to be visible. ‘Fairness’ is a ‘boiling the frog’ phenomenon because it replaces the concrete rules with a general conception, which, as can be seen in Doody quoted above, becomes ‘flexible’ and discretionary for the judges.

The relevance of this stuff to the Labour Party is indirect. Labour is not the state, but a voluntary organisation, and if it wants to make commitment to the Atlantic Alliance a condition of membership, it is entitled to do so. It follows that the same is true of making it a requirement of membership to accept the indirect form of commitment to the Atlanticism which is commitment to Zionism, in the form of the claim that “The Party is clear that the Jewish people have the same right to self-determination as any other people. To deny that right is to treat the Jewish people unequally and is therefore a form of anti-Semitism” (Code of Conduct, para [12]).6

What is dishonest is for the party to claim simultaneously to be an Atlanticist and loyalist party, as it does by these measures, and to claim to be the political representative of the working class as a whole - as it does by its name, and by its affiliate structure, especially the affiliation of the trade unions. The party needs either to abandon the claim to represent the class as a whole or to abandon the pre-emptive commitment to loyalism, by getting rid of witch-hunting operations like the old anti-communist witch-hunts and the present ‘anti-Semitism’ smear campaign. The CPGB has argued that the second is the right choice, thereby opening Labour up to real (limited) unity of the class movement, as a ‘united front of a special kind’.

In this context of Labour Party doublethink, the disciplinary proceedings in the ‘anti-Semitism’ witch-hunt are, in fact, classic examples of the abuse of process for collateral purposes of the sort against which the rules of due process are directed. They are not on their face state action - but, in fact, it is the state at work, operating indirectly within and through the Labour Party, to maintain Labour as a state-loyalist organisation which pretends to represent the class as a whole. And thus, though these disciplinary proceedings are not properly judicial, and though Labour so far as it is a voluntary organisation has the right to choose to be Atlanticist if it wants to, the case displays precisely the vices of ‘fairness’ as diluting the rules of due process and thereby enabling its abuse in state interests.

Wasted claims

The political ‘realism’ of the broad Labour left is, in fact, unrealistic. It makes false assumptions about the willingness of the state and the capitalists to ‘play by the rules’, and hence supposes that if the workers’ movement ‘plays by the rules’ it will win. The falsity of this approach was displayed spectacularly in the December 2019 general election and by the failure of the Labour left’s response to the ‘anti-Semitism’ witch-hunt.

The defeat of the attempt to use litigation to fight back is another example of the same phenomenon. The claimants were forced to use ‘possibly winning’ arguments - which inevitably meant not challenging the EHRC report element of the smear campaign, but instead trying to use it. And it inevitably meant not directly challenging the method of secret disciplinary proceedings based on secret delation, but trying to nibble at the edges. And it also meant accepting the series of legal steps by which ‘fairness’ has displaced the rules of due process, by which the temperature has been gradually raised to a point at which the frog can no longer jump out. The result is then another brick in the wall of the arbitrary power of the Labour Party’s central bureaucracy, protected by the judiciary’s rewriting of the “not immutable” “standards of fairness”. The costs outcome will deter others, while the judgment will become citable against others.

As I said at the outset, there is not even an exposure effect, since the tepidity of the claims (to make them ‘winnable’) makes them boring news; and in any case the state and advertising-funded media has shown rigorous discipline in commitment to the ‘anti-Semitism’ smear campaign. To overcome this silencing effect, what is needed is workers’ independent media, which is not committed to state loyalism or labour-bureaucratic control. That means we need a Communist Party, as opposed to not just the hopeless attempts to manipulate our enemy’s media, but also the mess of sects with their own bureaucratically controlled papers that we have now.

mike.macnair@weeklyworker.co.uk


  1. www.bailii.org/ew/cases/EWHC/QB/2021/1909.html.↩︎

  2. ammarkazmi.uk/labour-on-trial-the-slow-death-of-blairism-5168f15f0609.↩︎

  3. It was, in fact, disclosed in March after the party had lost at the interlocutory stage; but Butcher J found that the explanation of the earlier non-disclosure offered in an affidavit by Labour’s ‘executive director of legal affairs’ as unconnected with issues of procedural fairness had to be taken to be true, and the decision not to disclose hence “not … in bad faith”: para [35], sub (4).↩︎

  4. R v Secretary of State for the Home Department ex parte Doody [1994] 1 AC 531, Lord Mustill at 560D-561B, cited by Butcher J at para. [31] (3) from the Labour Party counsel’s arguments.↩︎

  5. Eg, www.vox.com/the-highlight/2019/8/8/20747198/philadelphia-bombing-1985-move; www.npr.org/2019/10/30/774788611/police-owe-nothing-to-man-whose-home-they-blew-up-appeals-court-says.↩︎

  6. Quoted by Butcher J para. [15].↩︎