INVESTIGATION OF A COMPLAINT ABOUT YOUR CONDUCT2
07/06/2016 by socialistfight
Gordon Nardell, Convenor, LRC CsC
Trained Christian Fisher; admitted as solicitor 1987; solicitor, Eversheds, Leeds; academic research, public law and human rights; legal officer, European Commission of Human Rights 1994-95; called 1995, Inner Temple; practised public international law in the Legal Affairs Directorate of the Council of Europe 1996-97; Assistant Parliamentary Counsel 1997-98; independent practice 1998 to date; appointed QC March2010. Elected leader of the European Circuit of the Bar of England and Wales 2012. Publications: Contributor to Burnett-Hall, Environmental Law(3rd ed., 2012); various articles on regulatory decision-making including Inspectors and Experts: the Duty to Give Reasons in Cases Turning on Expert Evidence  JPL 888. Parliamentary drafting work includes Competition Act 1998, Human Rights Act 1998, Financial Services and Markets Act 2000; Energy Bills 2008 and 2012-13. Member of non-executive bill drafting panel of the Scottish Parliament 2000-03. Panel of remote legislative drafters for the Falkland Islands Government. Elected member of Southwark London Borough Council 2006-10.
Comment by Gerry Downing on the items below:
You will see from the latter from Michael Calderbank below that the LRC had decided to “suspend your membership of the organisation while those steps are taken, up to a maximum of 42 days.” Some 65 days later I got the letter below from Gordon Nardell QC, so obviously the suspension was by then null and void.
Nonetheless, ignoring their breach of their own procedures, and ignoring messages asking for clarification, these charges are presented to me.
Note that these charges, that took 65 days to lay, are not the original complaint against me that caused the suspension in the first place. This is the barrister’s charge and the original complaint I am not allowed to see, nor am I allowed to know who presented the complaint or indeed anything that happened at that meeting because I cannot see the minutes. On inquiry I have discovered that no minutes have yet been produced and it seems unlikely that they ever will be voluntarily.
This is entirely understandable because a completely different version of events immediately emerged in public from the twitter accounts of Dave Osland (present) and then Andrew Coates (not there but close confidant of Osland/Osler). These alleged that I had been expelled, not suspended, for antisemitism and by a unanimous vote of the NC. Of course this is totally contrary to the constitution of the LRC and apparently some cautious soul recommended that the advice of Nardell QC be sought on what they had just done. And he told them apparently they had to go by their constitution as a matter of law. So they had broken the law, we might speculate.
So either Osland and Coates are lying or those others present at the NC meeting are lying. Hence the extreme reluctance to produce the minutes of the meeting. I must see the original complaint which, in my understanding, is the only thing that the Complaints Sub-Committee can proceed with against me, not some post-hoc legal cover-up which this document drawn up by Nardell is.
So I am now charged by the barrister Nardell, who I believe was not present at that NC meeting of 2 April, on charges that he took 65 days to draw up.
Moreover he now gives me, a semiretired bus driver, 7 days to respond to these charges, although it took one of the country’s leading barristers 65 days to draw up this very legalistic 2,500 word document.
Lastly I want to say that this is part of the same witch hunt against me and Socialist Fight that Guido Fawkes began, that David Cameron followed up in Question Time on 9 March 2015 and that the shadowy Compliance Unit in the Labour party then wielded against me using their Star Chamber powers to expel me without hearing or right of appeal. I am basically being attacked for my Marxist/Trotskyist philosophical ideological beliefs on this matter which are directly informed by Jewish Belgium Marxist/Trotskyist leader Abram Leon and his book, The Jewish Question, A Marxist interpretation. This constitutes a discriminatory practice with which I will be charging my persecutors.
From: Michael Calderbank <email@example.com<mailto:firstname.lastname@example.org>>
Sent: Wednesday, 6 April 2016 12:40
To: Gerald Downing
Subject: Fwd: draft message to Gerry.
Sorry for the time it has taken to reply.
I can confirm that you have been the subject of a formal complaint, and the matter is now being referred to the Complaints Sub-Committee (CsC) under the LRC Standing Orders. The complaint includes allegations of “anti-semitic claims” made in broadcast or written material. We view it as extremely important that any individual against whom allegations are made is treated fairly, and the LRC Rules and Standing Orders provide a procedure which ensures this. The CsC will investigate and will contact you to explain what has been alleged and ask you to comment. If the CsC consider it appropriate they will present a report to the NEC, which you will receive a copy of. The NEC will then invite you to a meeting at which a decision will be made on whether to uphold the complaint and, if so, what action to take.
The decision taken by the NEC at its last meeting was to exercise its power under the LRC Constitution to suspend your membership of the organisation while those steps are taken, up to a maximum of 42 days, commencing on the date of that meeting, Saturday 2 April. This is not, of course, in itself an indication of either culpability or innocence. However, the LRC takes allegations of racist (including anti-semitic) language and behaviour very seriously, and as the complaint, if upheld, could result in sanctions including expulsion from the organisation, it was considered appropriate to take this measure in the meantime.
Michael, for the NEC
CsC LRC, PO Box 2378, London E5 9QU
By e-mail to email@example.com
6 June 2016
INVESTIGATION OF A COMPLAINT ABOUT YOUR CONDUCT
The LRC’s Complaints Sub-Committee (“CsC”) has been asked to investigate a complaint made about your behaviour, based on comments about “Zionists” and Labour’s “Jewish question” you made during a broadcast interview with Andrew Neil broadcast on The Daily Politics on 10 March 2016. The CsC consists of Clare Wadey, Austin Harney, Maria Exall, and myself as Convenor. This letter explains how we intend to proceed, and invites you to comment if you wish to do so at this stage.
We propose to treat the complaint against you as an allegation of infringement of Rule 9A of the LRC Rules and Constitution, which was inserted at this year’s SGM. Rule 9A reads:
“Suspension and termination of membership 9A
(a) If an individual has:
- i) at one or more meetings of the LRC, behaved as mentioned in rule 9(a), and the LRC considers that the conduct in question is so serious or persistent that it is necessary to act under this rule;
- ii) behaved in a violent, abusive, intimidating, bullying or defamatory manner towards any member of the LRC;
iii) used words or behaviour of a discriminatory character or which improperly make reference to an individual’s personal characteristics (which may include gender, race, ethnicity, sexuality, disability, age, religion or belief);
- iv) seriously breached any rule or provision of standing orders about the conduct of LRC elections; the NEC may exercise the powers conferred by subparagraph (b).
(b) The powers are:
- i) to suspend the individual from membership of the LRC for a specified period, or
- ii) where the NEC considers the conduct in question so serious or persistent that it is necessary to do so, terminate that individual’s membership of the LRC (or, where the annual renewal of that individual’s membership is imminent, decline to renew that membership).
(c) Where the NEC finds that an individual has acted as set out in subparagraph (a) of this rule, that ndividual is a member of an affiliated organisation, and the NEC is satisfied that the conduct in question is so closely related to the activity of the organisation as to make it inappropriate for the organisation to continue to be affiliated, the NEC may terminate the affiliated membership of the organisation (or, where the annual renewal of that organisation’s affiliated membership is imminent, decline to renew that membership).
(d) The NEC may terminate an individual’s membership, or decline to renew that membership, if it is satisfied that the individual no longer meets the conditions for membership set out in rule 6.
(e) The NEC may also terminate the affiliated membership of an organisation, or decline to renew that membership, if it is satisfied that the organisation no longer meets the conditions for affiliated membership set out in rule 8.”
Rule 9B is also relevant. Paragraphs (a) and (d) read:
(a) The NEC may not exercise any power under rule 9 or 9A (b) unless it has first given the individual concerned a fair opportunity to be heard.
(d) The NEC may issue guidance about the conduct of members of the LRC, and in exercising any power under or relating to Rules 9, 9A and this Rule, the NEC, and any sub-Committee, must take any applicable provisions of such guidance into account.”
The NEC issued guidance on conduct last year. The NEC and CsC are obliged to take it into account in applying Rule 9A. The relevant paragraphs (8, 9, 16 and 17) read:
“8. When attending LRC events, representing the LRC, or identifying themselves as an LRC supporter, whether physically present or participating remotely via online communications, LRC members are expected to repudiate all forms of harassment, prejudice, hate speech, abuse or discriminatory behaviour.
9. Using discriminatory language or engaging in any form of abusive behaviour based on an individual’s personal characteristics (which may include gender, race, ethnicity, sexuality, disability, age, religion or belief) is incompatible with continuing membership of the LRC. Allegations of such conduct must be speedily referred to the CsC.
16.The LRC reserves the right in serious cases to suspend, terminate or not renew the LRC membership of any individual, or the affiliation of any organisation or local LRC group, found to be in gross or persistent breach of this guidance on conduct. Such a decision will be made by the NC following this guidance note and in accordance with the rules and standing orders of the LRC.
17.The LRC has no intention to impede free expression, nor will the CsC or NC tolerate the abuse of conduct complaints to unjustly target any individual or group. The purpose of conduct rules and guidance is to protect the LRC as a body where socialists can unite, organise and campaign in a comradely and tolerant atmosphere. However, if demonstrated, serious or persistent misconduct is likely to lead to the suspension, termination or non- renewal of an individual’s LRC membership or an organisation’s LRC affiliation. Examples of such misconduct include, but are not limited to, the use of hate speech or discriminatory language based on personal characteristics, making threats, repeated abuse, continuing disruption of meetings, personal intimidation, online bullying, deliberate misrepresentation or defamation (a damaging and untrue factual statement about a person, not an expression of opinion).”
5.The procedure for consideration of complaints under the LRC Rules is set out in the LRC Standing Orders. The relevant paragraphs are as follows:
“32. The CsC must first decide whether the matters alleged fall within Rule 9 or 9A. If not, but the CsC considers that they raise an issue in relation to Guidance issued under Rule 9B, the CsC may:
offer advice to the persons concerned;
where appropriate, seek to mediate between the persons concerned;
1. report to the NC with any recommendations for resolution of the matter and/or any future steps to prevent its recurrence or to improve members’ understanding of appropriate conduct for LRC members.
33 [not relevant]
34.If the CsC, whether on receipt of a complaint or after receiving further information after initially proceeding under paragraph 32, considers that the matters alleged fall within Rule 9 or 9A, it should if possible proceed (or continue to proceed) under paragraph 32. But if the CsC does not consider that appropriate, it shall take such steps as it considers necessary to investigate the matter and establish the facts, and shall report its findings and opinion to the National Committee as soon as possible.
35.Where the NC receives a report under paragraph 32 indicating the CsC’s opinion that a member has behaved in a way that falls within the NC’s powers under Rule 9 or 9A, the following procedure must be observed:
The Political Secretary must notify the member concerned of the matters alleged and must provide him or her with a copy of the CsC’s report and particulars of any facts or evidence on which the report is based (if not contained in the report).
a. The NC must arrange a hearing at its next scheduled meeting or at a meeting convened for the purpose (but not less than 7 days after the member has received the material referred to in paragraph (a)).
b. At the hearing, the member concerned (or the appointed representative of an affiliated member) must be given a fair opportunity to answer the allegations, including the opportunity to present evidence.
c. The NC must decide whether the matters alleged have been established and, if so, whether and how to exercise its powers under Rule 9 or 9A.
d. A nominated member of the CsC may speak to its report and present evidence; but neither a member of the CsC who has participated in the CsC’s consideration of the matter or preparation of its report, nor any member of the NC who has otherwise been involved in the matter, may otherwise participate in the hearing or the NC’s decision.
e. The Political Secretary is not to be treated as involved in the matter merely as a result of taking the steps required by paragraph 31 or by subparagraph a. of this paragraph.
f. A person is not to be treated as involved in the matter merely as a result of participating in a decision to suspend a person from meetings or membership pending the NC’s substantive decision. Where the matters alleged fall within Rule 9, a person is not to be treated as involved in the matter merely because he or she chaired any meeting at which the conduct alleged took place. “
6. So the CsC’s task is to investigate allegations of breaches of the LRC Rules, and to decide whether the matter should be the subject of a formal report to the NEC, in which case the NEC has to consider whether a breach of the Rules has taken place and if so what action, if any, to take under Rule 9A( b). The procedure laid down by SO34 ensures that where the CsC reports formally to the NEC on a member’s conduct, the member receives a fair hearing as required by Rule 9B(a).
7. Acting under SOs 32 and 34, the position we have reached is as follows.
8. We have viewed the YouTube video of the Daily Politics interview. To aid matters we have made the following transcript of the relevant part. This is not quite verbatim but we believe that it is a fair account of what was said:
Q/ You say need to confront the “Jewish Question” – what do you mean?
A/ The fact that Israel commits heinous crimes against the Palestinians, bombing without let or hindrance, and that’s presented in the Western media as an attack on terrorism.
Q/That’s Israel, not the Jewish question
A/ It’s not the Jewish… It is Zionism as such
Q/ I’m interested because you talk about Zionism – you say and your group says — you say zionism plays a major role in politics in all advanced capitalist countries, Zionists are behind the witch-hunt against Jeremy Corbyn, zionists hold great sway over our 3 main political parties, Zionism is in the vanguard of injecting anti-muslim hatred into western politics, Zionism is in the vanguard role in the capitalist offensive against the workers.
Sounds to me … for you the Jewish question is a Zionist conspiracy…
A/ It doesn’t add up to a Zionist conspiracy – it adds up to something very material – the number of millionaires and billionaires of zionist persuasion within the American ruling class and within the European ruling class in general, it’s their economic and political power that lead to the ridiculous situation…
Q You think Zionists, as you call them, play key role in that?
A/ They obviously do play a key role, they have dual citizenship in fact most of them
Q/ That language is reminiscent of Nazis in the 1930s – rich Jews controlling the German economy…
A/ Indeed no, if you want take what Netanyahu says, Netanyahu says actually the holocaust was caused by the Grand Mufti of Jerusalem not by the Nazis…
G/ I don’t have Netanyahu to interview, I have you… I just think if you list the things that you accuse of Zionism [sic], it sounds very much – I don’t want to push this too far – but people listening may think they hear shades of the Protocols of the Elders of Zion.
A/ I reject absolutely the Protocols of Zion. It’s based on material political facts of the overwhelming political authority of Zionist politicians within the ruling classes of America and Europe, it’s not to do with their actual Jewish origins.”
9. We take the view that any action by the NEC under Rule 9A must be based on conduct taking place on or after the SGM held on 20 February 2016 at which this rule was adopted. The Daily Politics interview satisfies this. However, the quotes put to you in the interview, about the “Jewish question” and Zionism “in the vanguard” of various matters, appear to derive from an article dated August 2015, which appeared on Socialist Fight’s website. That article is at this link: https://socialistfight.com/2015/08/22/why-marxists-must-address-the-jewish-question- concretely-today/. The NEC would have no power to take action under Rule 9A solely on the basis of that article, because it pre-dates the SGM. However, key elements of the article were put to you in the interview; and while the authorship of the article is unattributed, you did not seek to dissociate yourself from it, but rather you answered the points put to you in terms that closely resemble its contents. We consider that your comments in the interview are sufficiently associated with the article to make it appropriate for us to take the article into account as part of the context.
10. On that basis, we consider that your remarks during the broadcast raise an issue under Rule 9A(a)(iii) – “words or behaviour of a discriminatory character or which improperly make reference to an individual’s personal characteristics (which may include gender, race, ethnicity, sexuality, disability, age, religion or belief)”. As LRC members we are deeply concerned at the present climate in the Labour Party in which the expression of trenchant views about the behaviour of the Israeli State, and of western political support for that behaviour, are wrongly conflated with anti- semitism. We have therefore adopted a cautious approach to the interpretation of your remarks. However, taking the above passage of the interview as a whole, and in the context of the 2015 article, we have reached the provisional view – subject to any comments you may wish to make at this stage — that your remarks cross the line. They appear to amount to criticism of persons on the basis not only of their political position or conduct, but also of their ethnicity.
11. That feature is lacking from many of the reported remarks of other individuals who have faced, or face, disciplinary action by the Labour Party. But its presence in your case leads us to take the view – again provisionally, and subject to any comments you may wish to make — that this is a serious enough matter to warrant consideration by the LRC NEC under Rule 9A.
12. I must stress that you are not obliged to comment in response to this letter. You will have every opportunity to make your case directly to the NEC. But we do wish to extend to you the chance to correct or add to anything set out above, or to make any observations that you feel may cast your interview comments in a different light.
13. If we maintain our provisional view that we should report formally to the NEC, we will need to ensure our report is ready for circulation to you and the NEC members at least 7 days before the next meeting, which is due to take place on 25 June. So if you do wish to take up our invitation to comment at this stage, would you please do so within the next 7 days, ie. by Monday 13 June. Please send any response via the LRC Political Secretary, Michael Calderbank, who will ensure it is copied to the members of the CsC
14. I am sorry to have to write to you in these terms, but you will appreciate the importance the LRC attaches to both freedom of political expression and the rooting out of racist language and conduct.
Convenor, LRC CsC
I’ve only skimmed this piece, but my immediate takeaway is that communists are remiss for merely defending anti-Zionists – rather than attacking Labour’s neoliberal “antiracist” rules. The effort to purify a mass party of all traces of racism is analogous to demanding that all Labourites be atheists. It is liberal/radical and idealist, not Marxist. And it will inevitably be applied unequally.
Most striking: “Using discriminatory language or engaging in any form of abusive behaviour based on an individual’s personal characteristics (which may include gender, race, ethnicity, sexuality, disability, age, religion or belief) is incompatible with continuing membership of the LRC.” Belief, even. I suppose the “antifascists” will self-expel for the rude ways they sometimes characterized fascists.
Let me confess: I’m not completely free of anti-Semitism. Encountering an unknown Jew, I am predisposed to conclude he or she is a Zionist. My default affect is dislike. So what? I’m imperfect, but I have insight into my prejudices. I refuse to believe most others who claim to be free of racism are qualitatively different from me. Idealism and idealization are tools of the class enemy.
Being suspicious of your own ethnic group on grounds that many or most of them are likely to be racist nationalists hardly seems like racism to me. The perception may be right or wrong of course, but the experience is hardly unique. Those on the left with origins in racist white milieux would find this familiar.
I wouldn’t call these rules ‘neoliberal’ so much as ‘liberal’ without the neo. A working class party would have rules with some overlap, but without the liberal-utopian ‘down with all bad things’ ethos.
But they do seem to have broken their own rules in any case.