LA4J – a report of the court hearing

Update: 22nd June 2021

Dear Supporter

We had our day in court on Thursday 17th June and are  now awaiting judgement. What follows is our Full Court report. There are 3 Declarations.

Declaration 1: Code of Conduct

The claimants asked that the court make a declaration with respect to the NEC Code of Conduct on Antisemitism (the Unpublished Code) namely that the party has breached the express and implied terms of fairness in its contract (against two of the claimants) by failing to disclose—and then later relying on—the Unpublished Code, which the claimants did not know was being applied to them.

This declaration had been sought for all eight claimants originally, after the Party repeatedly refused to disclose the Code in correspondence.  However, the Party did not publish it until the end of March and then only allowed six of the claimants to make new representations.  By that time two of the claimants’ cases had been concluded with sanctions applied, and those two claimants were denied their request for their cases to be reopened to make submissions on the Code.

LA4J consider that it is only fair and just for those accused of misconduct to know the criteria by which they are judged so they can mount their defence.  The absence of such criteria means the individual is effectively navigating treacherous waters without a compass.

In these cases the accusations were of antisemitism.   These are profoundly serious and painful allegations.   Diana Neslen’s immediate family has experienced violent antisemitism historically and recently.  Colin O’Driscoll has called out antisemitism in his Constituency Labour Party and fought against all forms of racism.  As well as the sanctions imposed on both of them by the Labour Party there is a serious risk of personal, professional and reputational damage as a result of these allegations.

Rachel Crasnow QC, the Labour Party barrister, asserted that knowledge of the Unpublished Code would not have made any difference to the claimants’ representations. because the respondents were able to make ‘meaningful responses’ without the Code.  She referred to the ‘draft charges’ based on the code but not the context of these charges, which sets out in detail what the Party considers to be, and even more importantly not to be, antisemitic conduct.

Why, if the party believes that there is no benefit to a claimant’s defence to know the Code, have they now published it and allowed those whose claims are yet to be settled to make new or revised representations using the Code but not the claimants whose cases have already been closed?

Declaration 2: EHRC

Immediately after the EHRC Report was published, the Party stated that they accepted all the findings of the EHRC report without reservation, they committed to following all the recommendations and to having processes that remedied existing processes. Their Action Plan sets out concrete steps and a timetable, making clear its intention to deal with existing cases by a modified and more fair system.

Starmer himself issued a public statement in October 2020: “The report’s findings are clear and stark… they leave no room for equivocation. …The report finds… an inadequate process for handling complaints of antisemitism… The Labour Party I lead accepts this report in full and without qualification. We will implement all the recommendations and we will implement them in full. That process starts today.”

We would expect – after declaring its intention to implement all the recommendations of the EHRC report in full, to great public fanfare – that the LP would be doing all it could to demonstrate that it was doing so.  However, when the unfairness to respondents was pointed out to them last November, the Party denied either such unfairness existed at all, or that it was relevant to the claimants.

The Party maintained this position in Court, claiming that none of the deficiencies identified by EHRC amount to unfair processes for respondents and any unfairness found predated our cases and had been remedied by the time of the EHRC Report! It is astounding to suggest – as the Party’s Barrister has – that the full acceptance of the EHRC report related only to those parts of the report criticising the lack of independence in the process. This ignores the findings of the EHRC report that the LP disciplinary processes failed to comply with natural justice in several crucial respects including to the particular disadvantage of respondents.

Our case is that, given those commitments, it is procedurally unfair to continue to use old discredited processes to discipline claimants and a declaration from the Court is sought accordingly.

Declaration 3: Confidentiality

Our case is that the confidentiality provision in Notices Of Investigation (NOIs) sent to those being investigated – materially misstates and exaggerates members’ obligations under threat of sanction. There is a total mismatch between confidentiality as set out in the rules, which provides for the Party to treat members fairly and, in good faith – and the warning given, on pain of penalty, in the NOIs.

And it seems that there is a level of duplicity, since members can be disciplined punitively following an accusation of antisemitism if they tell anyone, but no such expectation appears to exist of those within the LP, which is the source of regular leaks to the press regarding the disciplinary process.

The Party’s response is that their warning in the NOI doesn’t purport to be a reflection of the rules on confidentiality, just a request to keep details of the process confidential, going beyond any actual obligation. They say that the clause is there in the NOI to deter members from leaking information for political purposes – and they do benevolently set out the support available while being investigated and offer sources of support for well-being.

Of course, they say, the warning doesn’t ban the accused from talking to anyone – as shown by them not imposing additional charges on our claimants for talking to our legal team. So, according to the Labour Party, it obviously hasn’t prevented us from sharing information with lawyers and on our fundraising sites and released videos on YouTube. This apparently rebuts any suggestion that the confidentiality warning has any gagging effect.

This ignores the fact that our claimants considered  they were taking a risk even in just talking to a lawyer.   And it totally ignores the harm it has caused, eg one claimant not being able to explain why he had relinquished his LP position or being able to respond to allegations in the national press about antisemitism. Another claimant could divulge he had been expelled but not why. Some members in receipt of NOIs are fearful of sharing even with their own partner, their closest family, even the Samaritans and the CAB due to the threatening wording of the NOI.

Conclusion

These are multiple violations of natural justice and due process.

Interestingly, Ms Crasnow  put in a plea to the Judge to defer judgement until after the Batley & Spen by-election on 1^st July. The Party claim was that as George Galloway is standing and fighting the seat on how the LP is dealing with Palestine and AS, a judgement in our case prior to this could have an impact on their campaigning due to this being a period of sensitivity in the constituency.

The judge made clear that judgment was unlikely to be delivered before 1^st July in any event.  We therefore await his judgment.

This will include a judgement on costs. We do have further legal bills to pay, so any donations that you can make will be very welcome. And please share widely.

Thank you for your continuing support.

https://www.crowdjustice.com/case/justice-4-labour-party-members/