Human rights illusions
Dave Levy has proposed that Labour should make its disciplinary procedure comply with the European Convention on Human Rights. Mike Macnair shows that the project is totally delusional
The Alliance for Workers’ Liberty’s Solidarity for July 21 gave two pages to Dave Levy of Lewisham and Deptford Constituency Labour Party (writing in a personal capacity), arguing that “the Labour Party’s disciplinary processes must be made to comply with article 6 of the European Convention [on Human Rights]”.1 He makes a series of nine specific proposals, which would in essence further judicialise Labour’s disciplinary procedures.
This approach is fundamentally misconceived. It misunderstands what the current relevant ‘human rights’ law is; it fails to grasp how far the current law has already moved away from political democracy; and, in consequence, it remains within the ‘universe of discourse’ of the labour bureaucracy’s regime of control, and would in fact hand to the right weapons for use against the left.
Now it may be that the AWL intends to offer a critique of Levy’s approach in the next issue of Solidarity. But Levy’s mistakes are part of the common coin of the Labour left (and, indeed, of the left more broadly). So they are worth criticism here.
What comrade Levy argues is that the October 2020 Equality and Human Rights Commission report on ‘anti-Semitism’ in the Labour Party2 and the Labour Party’s response to it was wrong - not because of the insufficient evidence to support its conclusions or the evidence of bias, as other authors have argued,3 but because it was legally wrong. He states that the EHRC
have failed to meet their duty of balancing Human Rights and Equality Law, and that this has been accepted with alacrity by the party’s ‘new leadership’. They mention Freedom of Speech which is enshrined in Article 10 of the European Convention but not the Right to a Fair Trial (article 6), nor to the right to Freedom of Association (article 11) - both of which are engaged in the politics and good governance of a political party.
The task posed is then to make Labour’s disciplinary procedures ‘human rights-compliant’ - in particular, compliant with article 6.
Comrade Levy objects that the substantive rules under which people have been expelled or suspended are too broad and vague; and that the procedural forms of the disciplinary process are unfair - in particular because Labour’s national constitutional committee (NCC), which acts as the judge, receives legal advice only from the party (ie, the party bureaucracy), which is the prosecutor. Both these objections are drawn from the thought-world of criminal justice: the rules must be clear and precise; the judge is to be fully independent, and hence must hear legal argument from both sides.
In order to overcome these problems, comrade Levy calls for nine numbered points,4 which are a mixture of general principles (some repetitive) and very specific rules:
- The codes of conduct and procedures need to be written down and made ECHR-compliant.
- There needs to be a rule that they are to be interpreted so as to be ECHR-compliant.
- There needs to be a complaints department independent of the NEC and the leader (Labour’s own Crown Prosecution Service).
- Suspension should be sharply limited to “defined emergency cases, where further harm is highly likely if the alleged culprit is allowed to continue to hold office or attend meetings …” and for a limited period. The confidentiality clauses in suspension letters are “excessive”, though “the privacy of others, including alleged victims, must be respected”.
- Sanctions would be decided by the NCC, which should have a budget and independent legal advice. Summary expulsion for supporting political organisations not official Labour bodies should be abolished.
- There should be no “CLP route” to a complaint (where complaints are initially raised in the CLP).
- The process has to be “fair and proportionate” to both “complainer and accused” and have speed and certainty.
- The general secretary’s role is too powerful; there should be a Chief Financial Officer, Head of Compliance and Data Protection Officer, who should be directly accountable to conference and “have accountability to the law above that of their accountability to their employers” - a form of “checks and balances, as exist within most private sector organisations”.
- There should be a ‘Members’ Ombudsman’.
After all this, comrade Levy’s conclusion is that
... any changes must bring Labour’s disciplinary process into compliance with the ECHR’s rights to a fair trial. Disciplinary offences must only seek to sanction acts of harassment, crime in which the party or another member is victim, and crimes or misdemeanours as a public servant. Personal hostility is also unacceptable. Processes must be fair, proportionate, offer members certainty and a right to an effective defence and meet the party’s safeguarding responsibilities. Factional abuse must stop.
And there should be motherhood and apple pie, too.
The European Convention on Human Rights was created in 1950 as part of the early stages of the cold war. It is always necessary, since confusion on the point is widespread, to point out that the ECHR is not European Union law, but a separate inter-state agreement. There is a European Court of Human Rights at Strasbourg, which can entertain complaints by states against each other, or by individuals if states have accepted this (the UK signed up to this ‘right of individual petition’ in 1966). The Human Rights Act 1998 ‘incorporated’ the ECHR into English law.
The convention was in origin one of the ways in which ‘the west’ self-identified against ‘totalitarianism’; although the British foreign office was central in its creation, the colonial office cursed it as potentially blocking the normal methods of British colonial rule by arbitrary imprisonment, deportation, and so on.5 Most of its clauses, however, have limits and caveats which potentially eviscerate the very broad rights granted. Comrade Levy relies on three provisions and assumes the interpretation of a fourth.
Article 6: 1. In the determination of his civil rights and obligations or of any criminal charge against him, everyone is entitled to a fair and public hearing within a reasonable time by an independent and impartial tribunal established by law. Judgment shall be pronounced publicly but the press and public may be excluded from all or part of the trial in the interests of morals, public order or national security in a democratic society, where the interests of juveniles or the protection of the private life of the parties so require, or to the extent strictly necessary in the opinion of the court in special circumstances where publicity would prejudice the interests of justice.
The remainder of the article is concerned specifically with criminal charges: that is, ones which lead to state punishment (imprisonment, fines, etc) and thus have no direct relevance to Labour Party disciplinary procedures. What is striking is the vagueness of the ‘reasonable time’ rule (which has never prevented British courts running so slowly that claimants in industrial injury cases may be dead before their case comes to trial); and the extreme breadth of the exceptions to the right to public trial.
Article 10: 1. Everyone has the right to freedom of expression. This right shall include freedom to hold opinions and to receive and impart information and ideas without interference by public authority and regardless of frontiers. This article shall not prevent states from requiring the licensing of broadcasting, television or cinema enterprises.
2. The exercise of these freedoms, since it carries with it duties and responsibilities, may be subject to such formalities, conditions, restrictions or penalties as are prescribed by law and are necessary in a democratic society, in the interests of national security, territorial integrity or public safety, for the prevention of disorder or crime, for the protection of health or morals, for the protection of the reputation or rights of others, for preventing the disclosure of information received in confidence, or for maintaining the authority and impartiality of the judiciary.
Again notice the extreme breadth of the exceptions in paragraph 2 to the broad right granted in paragraph 1:
Article 11: 1. Everyone has the right to freedom of peaceful assembly and to freedom of association with others, including the right to form and to join trade unions for the protection of his interests.
2. No restrictions shall be placed on the exercise of these rights other than such as are prescribed by law and are necessary in a democratic society in the interests of national security or public safety, for the prevention of disorder or crime, for the protection of health or morals, or for the protection of the rights and freedoms of others. This article shall not prevent the imposition of lawful restrictions on the exercise of these rights by members of the armed forces, of the police or of the administration of the state.
Again the broad rights granted are corralled by equally broad exceptions. Notice that the right to join trade unions is not accompanied by any right to take industrial action.
The fourth article comrade Levy uses is article 8, on the ‘right to privacy’:
Article 8: 1. Everyone has the right to respect for his private and family life, his home and his correspondence.
2. There shall be no interference by a public authority with the exercise of this right except such as is in accordance with the law and is necessary in a democratic society in the interests of national security, public safety or the economic wellbeing of the country, for the prevention of disorder or crime, for the protection of health or morals, or for the protection of the rights and freedoms of others.
In this case, the ‘right’ itself is ambiguous: what is “family life” and what is “private … life”, insofar as it extends beyond “family life”? What is “respect” for one’s home and for one’s correspondence? The right has been considerably enlarged by interpretation beyond its probable original sense - notably towards protecting a right to privacy of business and financial information.6 But here too we have very broad exceptions in the ECHR itself.
I have quoted the text at length because the qualifications on the rights effectively make the argument that the Labour Party is in breach of the ECHR rights violently implausible.
In the first place, if we look at what are probably the real motivations of the anti-Semitism witch-hunt, the answer is that British national security requires the maintenance of the British position of subordinate ally of the United States. This was already recognised by the British state core in 1940, and the US reminded Britain of its subordinate position both at the Bretton Woods negotiation in 1944 and in forcing the British out of Suez in 1956-57.7 British military weaknesses in Afghanistan, Iraq and Libya have brutally illuminated dependence on the USA, and Brexit accentuates that. To have from 2015 a Labour Party leader who had played a leading role in the 2002-04 anti-war movement was therefore a present threat to British national security - which is an explicit exception in the ECHR. This, however, while true, is unlikely to be openly admitted.
Secondly, the witch-hunt takes the form of the accusation that the Labour left is anti-Semitic and therefore racist. It does so partly because ‘Israel’s right to exist’ is the ostensible ground of the USA’s enormous military aid to the Israeli state (which actually reflects US geopolitical interests in having negative control of the Middle East oil taps to strangle, potentially, Chinese or Franco-German military opposition). Therefore demanding acceptance of ‘Israel’s right to exist’ is demanding acceptance of Atlanticism. It takes this form also because the left’s long commitment to anti-discrimination has made it vulnerable to being accused of racism.
But then the consequence is that the right of free speech is arguably properly overridden by “the protection of the reputation or rights of others” under article 10 (2), and the right of freedom of association is properly overridden by “the protection of the rights and freedoms of others” under article 11(2) - that is, in this case, the right of Jews considered as a nation to self-determination, and hence of the narrower class of Israel-supporting Jews to freedom from “harassment” under the Equality Act 2010, section 26. Indeed, this line of argument can be justified on the basis of ECHR article 14, which comrade Levy does not mention:
The enjoyment of the rights and freedoms set forth in this convention shall be secured without discrimination on any ground such as sex, race, colour, language, religion, political or other opinion, national or social origin, association with a national minority, property, birth or other status.
Of course, a court could interpret the points the other way. Let us suppose, for example, that the Corbyn leadership had not been determined to conciliate the Labour right, but had brought disciplinary proceedings against rightwing Labour MPs who gave support to the Tories. It is likely that a court would in this case have found that the Labour Party’s disciplinary proceedings violated human rights, on the basis that they contravened freedom of speech.
The point is that the convention itself is so broadly drafted and has such wide loopholes that it gives an arbitrary power to judges acting under it. This is not a model that the left could rely on against the abuse of disciplinary proceedings and it certainly should not be promoted as an ideal.
Indeed, the excessive ‘confidentiality’ of Labour’s disciplinary proceedings can be justified under the terms of the convention itself, under the proviso in article 6 (1) for secret trials if “the protection of the private life of the parties so require”. The interpretation-expanded right to privacy under article 8 supports the same interpretation, and has been used more widely to erode the principle that ‘justice must not only be done, but be seen to be done’ - as in ‘super-injunctions’, which prohibit even revealing that the order has been made.8
In the instant context, the principle comrade Levy supports, that “the privacy of others, including alleged victims, must be respected”, produces a Kafkaesque regime of secret delation, in the style of the Venetian Council of Ten, the Spanish Inquisition (and the English ecclesiastical heresy proceedings polemicised against by Christopher St German and rejected by the Heresy Act 1534) and the 1930s use of delation to the GPU (later KGB) to settle various private scores. Secret delation was, indeed, a recurrent grievance under the Roman empire, which new emperors themselves denounced, and the right to confront your accusers was already demanded in the Bible. The road to hell is paved with good intentions - here, the good intentions of the ‘right to privacy’. Laying charges against other people is inherently a public act, and the costs of allowing a right to privacy for accusers outweigh any possible benefits.
The primacy of private rights under the convention is, of course, also reflected in First Protocol, article 1 - ‘Protection of property’:
Every natural or legal person is entitled to the peaceful enjoyment of his possessions. No-one shall be deprived of his possessions except in the public interest and subject to the conditions provided for by law and by the general principles of international law.
It is hard to see how any socialist can celebrate the ECHR as providing fundamental orienting principles, given this commitment to private property (in spite of the presence of the weasel-words limitations normal in the convention).
That said, there is another aspect of the private-public distinction in the ECHR, which involves some limited common ground between the convention’s authors and the workers’ movement. This is that the convention is about the control of the coercive power of the state - expressed in criminal law, civil law and regulatory rules, all of which are ultimately backed by the use of armed force. Thus corporations appear as “legal persons” which have human rights, not as public powers which need to be controlled. And thus the Labour Party and its internal disciplinary procedures are not direct objects of the convention.
The element of common ground with the workers’ movement which is involved here is article 11, freedom of assembly and association. The point is that association is a voluntary choice. Freedom of association thus necessarily entails freedom of disassociation: the right to split. If the right to split is fully judicialised, this turns the supposedly free association into an institution of the state directly incorporated by the legal system, like a local authority, and association becomes unfree.
Think, again, about the case of a rightwing Labour MP who gives support to the Tory Party against a leftwing majority in the Labour Party; or who corruptly acts as political lobbyist/agent for some capitalist or group of capitalists, in ways which are technically legal because money does not directly change hands - all too familiar a problem.9
Do we really want to bar a left-majority NEC from excluding the MP from the party, thereby disassociating the party from them, because their conduct does not amount to “acts of harassment, crime in which the party or another member is victim, and crimes or misdemeanours as a public servant” (comrade Levy’s proposal)?
Do we really want the process to be fully-lawyerised, thus implying £100,000 potential costs, as in the recent claim made by victimised members against the party, with the result that justice is sold by the lawyers?10 That is the practical meaning of comrade Levy’s proposals for the NCC to be made fully autonomous and to have a “Head of Compliance”, who has “accountability to the law above that of their accountability to their employers”.
We need to start from a radically different place: not from the principles of judicial supremacy and ‘juristocracy’.11 These were developed in the ECHR on the basis of the US constitutional model as part of the ‘western alliance’ system at the beginning of the cold war, and aggressively expanded from the time of the Carter administration (1976-80).
Instead, we need to start from the idea of democracy as self-government - and the idea of a workers’ party, whether the Labour Party or a Communist Party, as an instrument for working class political action independent of the capitalist class.
That implies that a workers’ party requires self-government as a means of taking policy choices without dictation by the capitalists’ state, or the capitalists’ advertising-subsidised media, or a judicial system which sells justice to the highest bidder and denies it to the lower classes through the ‘free market in legal services’.
Self-government as a starting point implies the opposite of the judicialised regime comrade Levy proposes. It implies that Labour’s NEC needs to take open political responsibility for splitting the party by expelling people on political grounds, which is what has been happening in the ‘anti-Semitism’ witch-hunt - not to set up a pretend form of pseudo-judicial procedure, of the sort it has been operating.
It also implies that comrade Levy is exactly wrong to propose the abolition of Constituency Labour Parties’ disciplinary powers. It is a ridiculous waste of resources to handle minor local disputes at national level, and also denies to the local parties the ability to practise how to handle disputes in a fair way, and face up to the common reality of conflicting stories. The proposal to create a salaried ‘Complaints Department’ - a Labour Crown Prosecution Service - would add to this cost all the notorious vices of the actually existing state CPS.12
For exactly the same reason, it is the underlying idea of self-government which provides a secure foundation to the right to open trial, and the rejection of the idea of secret legal advice given by the party to the NCC. Juristocratic ‘human rights’ rests on trusting judges to act in an unbiased way merely by virtue of their position. This sort of trust looks unjustified on the basis of both historical and international experience of judicial behaviour.13 But, if the principle of trusting judges is accepted, they may act in secret. Open trial, in contrast, enables lay supervision of the judiciary, which is impossible where trial is private. The same applies with equal force to quasi-judicial operations in an organisation like Labour. For exactly the same reason, where legal advice is relied on to prejudice some third party under the legal powers of the recipient, that advice should be disclosed, not kept secret on the basis of ‘legal advice privilege’.
The logic of self-government tells us what is procedurally wrong with the ‘anti-Semitism’ witch-hunt. Self-government is about the working class as a class - and hence, the members of unions and parties as such - having the right to govern themselves and the ultimate right to decide. This requires open decision-making, and the rejection of the practice of lying to the class or to the membership. Where the ‘leaders’ lie to the membership, they deny that membership the right to make a free choice - just as a fraudster who lies to a mark denies the mark the right to choose (which is why contracts procured by fraud are voidable).
If the Labour Party wants to make commitment to the Atlantic Alliance a condition of membership, it is entitled to do so. It follows that the same would be true of the party 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, paragraph 12).
What is dishonest and denies the membership a real choice - and the working class real choice - is for the party to claim simultaneously to be an Atlanticist and loyalist party, as it does by the witch-hunting operations, and 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’ witch-hunt/smear campaign.
The aim of democratic self-government, then, both in the state and in the workers’ movement, provides a guiding thread for an alternative way of thinking about the issues. Comrade Levy’s ‘human rights’ approach, in contrast, is to stay within the framework of Atlanticism and of the Labour Party bureaucracy’s dishonest ‘disciplinary’ operations.
Available at www.equalityhumanrights.com/en/inquiries-and-investigations/investigation-labour-party.↩︎
Eg, matthewwaterman.medium.com/the-ehrc-report-on-labour-antisemitism-is-a-mockery-of-justice-b673133708; newleftreview.org/sidecar/posts/a-fabricated-crisis.↩︎
Some of the numbered points contain unrelated matters.↩︎
AWB Simpson Human rights and the end of empire Oxford 2004.↩︎
www.echr.coe.int/documents/guide_art_8_eng.pdf; Jonathan Sumption in Trials of the state (London 2019, pp57-66) is Tory-biased on the original meaning but almost certainly right about the expansion generally. See also S Moyn Christian human rights Philadelphia 2015.↩︎
On 1940 see N Moss Nineteen weeks Boston MA 2003; On Bretton Woods: B Steil The battle of Bretton Woods Princeton NJ 2013; and on Suez: DB Kunz The economic diplomacy of the Suez crisis Chapel Hill NC 1991.↩︎
There is a convenient summary at www.alstonasquith.com/super-injunctions-a-brief-history-of-revealed-cases.↩︎
Cf D Osler Labour Party Plc Edinburgh 2002 - although Osler probably overstates the degree of innovation of the Blair years relative to Wilson-Callaghan.↩︎
‘Courts are not our friend’ Weekly Worker July 15.↩︎
See R Hirschl Towards juristocracy: the origins and consequences of the new constitutionalism Cambridge MA 2004 - although Hirschl’s account of the origins is more about class elites trying to retain control and less about US reorientation after Vietnam and the post-1968 crises than I would prefer. Cf also www.dissentmagazine.org/article/the-court-is-not-your-friend.↩︎
Googling ‘Crown Prosecution Service failures’ produces about 194,000 hits …↩︎
Some of this discussion appears in M Macnair, ‘Free association versus juridification’ Critique No39, pp53-82 (2011); see also ‘Can judges be trusted with the common law’: judicialpowerproject.org.uk/mike-macnair-can-judges-be-trusted-with-the-common-law.↩︎