Saying the Quiet Part Out Loud

Sunday's meeting of the Jewish Labour Movement was interesting. In the first half of the day, Angela Rayner brewed up a storm on social media. She said "thousands and thousands" should be suspended from the Labour Party if they don't "get real" about antisemitism. What this means is anyone's guess, especially when the Deputy Leader herself went on to Newsnight a couple of weeks back and said Jeremy Corbyn's comments about the political uses of antisemitism were true, but that he shouldn't have said them. Or perhaps we're looking at something a bit more blanketing. As readers know, the ban on constituency parties taking business about this case has been justified by the General Secretary as an anti-antisemitism measure, of protecting Jewish members because some might find discussion of disciplinary processes uncomfortable. This absurdity has given Angela Rayner and Keir Starmer free reign to frame this issue and talk it over with non-Labour JLM conference attendees like Joan Ryan and Mike Gapes, but not a privilege afforded to the people who pay the wages of the party machine and have worked to give Angela and Keir the offices they enjoy.

In the law laid down to constituency officers, the recommendations of the EHRC report itself are ruled not competent business. To even suggest an independent complaints process might not be a good idea is, according to the mood music coming from the top, evidence of not "getting real". A mite embarrassing when, in his contribution to the JLM conference, Peter Mandelson himself criticised the report's recommendation for an independent complaints process. To quote LabourList's Sienna Rodgers, she reports "I’m worried about one thing. That is this recommended approach by the EHRC of an independent process." He says the NEC should "take ownership" of process and "an independent process can’t do that." Unfortunate, but unlikely he'll receive a gentle phone call from the dear leader about what the line is.

Mandelson is right to be concerned. The introduction of an independent process is a thin end of a wedge. But first a bit of history. Throughout the labour movement's existence, the party and the unions have been wary of court intervention into their affairs. In more recent times the 1980s and 1990s saw legally enforced assaults on workers' organisations, with stringent rules applied to the regulation of labour and what unions can and can't do. These weren't about "cleaning up" the unions (still some way to go), though they did have the knock-on effect of ensuring union money moving into politics was the most tightly scrutinised and therefore the cleanest money there is. No, these measures were about tying unions up to make them less effective in disputes. If the efficacy isn't present, what's the point? Sustained membership decline over decades was partly thanks to the legalistic chains thrown around our organising capacity.

This suspicion toward the uses of the law goes back to the very founding of the labour movement, how early organisers were harassed, arrested, imprisoned, and transported has left a cultural legacy of institutional independence, of our movement's mindedness to sort its own affairs and generate its own forms of sovereignty, up to and including dispute resolution. This attitude persists on the left, considering its fidelity to a broad understanding of class and class power. And it has persisted on the right because it confers them a free hand. If they control the leadership body of the organisation they're ensconced in, they are, effectively, the law within that institutional space. For different reasons, left and right have a common interest in keeping the movement's governance structures independent of outside oversight.

This mutual understanding came undone early in the Corbyn years. In July 2016 following the parliamentary party's first rebellion against the membership, former party candidate Michael Foster took Labour to court against the NEC's decision to allow Jeremy Corbyn to defend his leadership without having to go through the PLP nomination process. His argument relied on uncertain words in the rule book, which the NEC subsequently clarified in its ruling giving a Corbyn defence the green light. The challenge was always going to be a hiding to nothing, and his legal counsel duly relieved him of thousands of pounds for a no-hope case. But the taboo was broken. Subsequently a group of members took legal action against the party for the rules the NEC placed on voting members and the suppoerter category for the second leadership contest between Corbyn and Owen Smith - their initial success was overturned at the Court of Appeal and the NEC's decision upheld. In both cases the NEC acted within the competencies conferred upon it by the rule book, nor had acted unlawfully and so its decisions stood. Yet one thing that went virtually unnoticed at the time was the activity of our friend Tom Watson. While most of the PLP were hoping and praying for Foster's success, the then Deputy Leader publicly opposed court action. He defended the principle of party sovereignty and autonomy. You see, he understood how central this was to any future consolidation of power by the Labour right.

Fast forward to the last couple of years, the demand for an "independent" complaints process shows how little the current Labour right understand themselves and the conditions most conducive to their factional operation. During the 1980s, the right's hold on the NEC and party machinery, and not forgetting the crucial institutional backing of the trade union apparat, meant hundreds of leftists - mostly, but not entirely Militant supporters - were slung out the party without any pretence to even-handedness or natural justice. It's all there, lovingly documented in John Golding's The Hammer of the Left. In 2020, the right's power is not what it was. Major unions are not in their pockets, and if Unison elects a left candidate for Genereal Secretary they won't be able to rely on them either. A substantial proportion of the membership are rebellious, but, crucially, the right have boxed themselves into a corner. Angela Rayner might talk tough to the rightwingers who fill out the JLM's membership, but under existing arrangements she has no formal power to expel anyone. And both she and Keir Starmer are now compelled by the EHRC - and their own repeated promises - to hand that power away.

Why does this matter? One should not be naive about "independent processes", their character, and their political content, but it does introduce a new dynamic into proceedings. The expulsion demands Labour MPs have raised over the years are already, according to the EHRC, a politicisation of the complaints process and therefore unwelcome. By instituting an outside semi-judicial body, this can no longer happen. Second, as a formally independent body it will adjudicate on the basis of party rules but will necessarily draw on wider legislation on racism, harassment, and discriminatory practice when determing the outcomes of complaints. It will also be expected to operate on the basis of natural justice, otherwise its decisions are even more open to legal challenge by "defendants". And, crucially, the independent panel is not subordinate to Labour's NEC. This is where the problems lie for the Labour right. Mandelson fears such a process because it introduces the rule of law into the party. Frame ups become harder to manage if hard evidence is required. Getting rid of inconvenients and annoyances is tougher if one can't cook the panel beforehand. And where does it stop? Are the party's hideous working practices under threat? And what about the pervasive stitch up culture when it comes to candidate selections?

This is why Mandelson is worried. Not out of any principled reason. He broke ranks with the party's establishment because he knows what the score is. He was there in the 1980s and understands where the power bases of the right are, and how it should be exercised. Therefore to see his epigoni, whose formative years were not conditioned by a struggle with the left, forget all the lessons he learned by willingly giving away a lynchpin of their institutional power must be mind-boggling and infuriating. It repesents an unnecessary weakening of their capacity to run the party as they see fit, and it must gall to see them not just welcoming it, but arguing for it. It's too late to backtrack now. Wouldn't it be funny if the consequence of anti-Corbyn agitation turns out to be a new set up making shadowy, secretive, factional politics that much more difficult?

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