The judgment in the LA4J case – a comment
JVL introduction
This analysis of the recent judgement in the LA4J case (Diana Neslen & others v The Labour Party) by a retired litigation lawyer indicates some of the challenges faced by many party members, including many Jews, who have experienced the opaque Labour Party processes relating to unwarranted antisemitism allegations.
You can see the full judgment here.
Analysis
It’s difficult not to get the impression that the recent judgment, on the claim against the Party by several members accused of antisemitism, is one of those cases where the judge decided what he wanted to do and then thought of some reasons to justify it. In fact, his comment at the end of his judgment, where he declared that it’s effectively the policy of the courts not to intervene in disciplinary proceedings, meant that he was never going to agree with the claimants.
The judge accepted the Party’s contention that a House of Lords judgment concerning an application for judicial review by several convicted murderers was directly applicable. Although acknowledging that the Lords’ judgment was given in the context of a statutory discretion, the judge was quite comfortable in following that case in that fairness is “essentially an intuitive judgment” which in this case seemed to mean that he could decide as he pleased. The judge relied on the case insofar that “what fairness demands depends on the context of the decision” but ignored the next sentence that insisted that “an essential feature of the context is the statute which creates the discretion”. If he had cared to, the judge could comfortably have distinguished between the two cases.
While happy to opine that at least part of the claimants’ case was akin to consideration of the rights of murderers, the judge decided that their case was also akin to being suspended from the local social club for some minor breach of a club’s rules, emphasising that the Labour Party is somehow just like any old unincorporated association. He ignored or, dare one say, almost pretended not to understand, how devastating an allegation, let alone a finding, of antisemitism can be to the reputation and even well-being of the claimants. Not to mention how the case was potentially politically significant (although he happily supported the Party’s claim that it was in the interests of the wider public to use the discredited procedures).
“Interestingly, the judge cited the leaflet “No Place for Antisemitism” as a source for where the claimants might have found the disciplinary code being used by the Party. Not surprisingly, I can’t find that leaflet – thoroughly rubbished by the JLM at the time of its publication – on the Labour Party website.
And the Judge’s finding against the claimants, on their complaint that they understood the Party was demanding confidentiality, seems disingenuous. The Party wrote to each claimant that: “The Labour Party’s investigation operates confidentially… We must therefore ask you to ensure that you keep all information and correspondence relating to this investigation private, and that you do not share it with third parties … That includes … the allegations against you … If you fail to do so, you may be liable to disciplinary action …” This could only have had one meaning, especially to any lay-person. Yet the Judge found against the claimants at least in part because he held that the operative word was “ask”.
The difficulty for anyone challenging the Labour Party on anything to do with antisemitism allegations is that they are fighting what has become an entrenched conventional wisdom i.e. that there is rampant antisemitism in the UK in general and in the Labour Party in particular. Indeed, the way the judge listed the draft charges against one of the claimants (unnamed) seemed intended to indicate what a dreadful bunch they must be.
This article supplements two earlier JVL statements on the case
I did not support this action as it was obviously high risk (I’m not speaking with the benefit of hindsight). The key is that Labour as it currently is may not be as it is tomorrow and it’s pointless fighting a losing battle against the present.
Surely the judgment is clear that this is nothing to do with antisemitism but about process and the party’s right to decide on conduct as it sees fit within that process, even though we disagree. Indeed the action by the claimants was brought on process. It wasn’t a test of antisemitic behaviour.
It is incumbent on us to fight for control of the party but this is not the way. We are not going to be able to consistently challenge the current leadership on the merits or not of social media posts and articles that give rise to disciplinary action; and the next best thing, on process, has failed here.
The unnamed author says:
“The difficulty for anyone challenging the Labour Party on anything to do with antisemitism allegations is that they are fighting what has become an entrenched conventional wisdom i.e. that there is rampant antisemitism in the UK in general and in the Labour Party in particular.”
Surely the ‘entrenched conventional wisdom’ is about Labour only.
A simple case of you can never win.
Thanks for the measured, informed view of a qualified, experienced lawyer.
Regrettably, even if an appeal were possible I think it would be immoral to ask the very brave LA4J to put themselves over the parapet again. I can only thank them that they sought justice on behalf of all of us … and say how sad I am that (in my view) they didn’t receive it.
I have been expelled from the Labour Party for alleged Holocaust denial. Yes, for many years, I have fought for the rights of the Palestinians, just as I have for black South Africans, Tibetans and many others but, a Holocaust denier I am, absolutely, not and have never been. The whole episode breaks my heart. Now, past 70, I would very like to visit the Holy Land but, fear the unjust labelling by the Labour Party may prevent me from doing so.
‘No Place for Antisemitism’ was available on the Labour website for years after it first appeared. It seems to have been superceded now by these pages https://labour.org.uk/antisemitism/antisemitism-training/ i.e. the training webinar produced by JLM (available only to Labour members by logging in) and by this https://labour.org.uk/antisemitism/
Instead of enhancing and throwing support into a new democratic socialist alternative to this inherently corrupt party of the establishment, the claimants decided to play a game that the British establishment has been playing for generations, where it makes all the rules and interprets them as it sees fit. To have won this case would have required a fair impartial system that didn’t exist in the first place. I threw in some support for this cause, I’m not excepted from the same criticism, but all it has achieved or will achieve is to expose the aforementioned corruption of the whole UK system, in which having no alternative but two main parties is largely responsible for. It is no bad thing that this rigged game has been exposed, but isn’t it time to move on and break this deadlock with a new party number three? Become Jewish Voice of the Left, instead of Labour? The left has no real voice or representation in parliament, this is sticking out like a sore thumb, and I think fussing about membership of what has become an awful obnoxious party is a pointless waste of energy. I understand how hurtful this has been to the claimants but it’s now apparent they will not get the justice they deserve from the party or the legal system, so it’s time to nail a coffin lid over Labour for real, once and for all.
I chose to support the LA4J legal challenge to the Labour Party’s unjust and dishonest victimisation of brave members of the Labour Party.
I did so – Not because I was optimistic of success – But because it was a necessary and correct act of solidarity with victimised comrades.
£110,000 is a considerable amount – Contributed by activists, socialists, trade-unionists and fighters for justice in this legal challenge.
We are all activists and campaigners.
I cannot help but reflect on the campaign that such a sum could have financed to expose the lies and chicanery of the Starmer/Evans “project” and to advance the arguments for justice and socialist principles which we all support.
We can spend a lot of resources endlessly talking to each other.
We can risk huge resources talking to unsympathetic judges.
Maybe it is time to start talking to the thousands of ordinary trade unionists, and to the many who never hear our arguments and possibly believe the establishment’s lies.
Increasing numbers of us may face the witch-hunt with little hope of successfully challenging unjust and dishonest accusations.
We must not let this silence us.
As one of the LA4J claimants, I think I can say that I don’t think any of us looked at the court action through ‘rose tinted spectacles’ as we are all socialist campaigners with different background stories. We were well prepared by our legal team, saw this as one part of the struggle to democratise OUR movement’s main Party and realised that the judge that sat in the Full Hearing was luck of the draw.
The fact that the judge in the previous pre-hearing went in exactly the opposite direction, coming down in favour of all our arguments, awarding 50% costs in our favour and ordering the Full Hearing gave us some hope that our points had merit in the court’s eyes.
We did achieve some victories.
We forced the Party to publish in the days before the hearing the infamous ‘Code of Conduct on Antisemitism’ that they had been secretly using to judge me and hundreds of other members in NEC panels behind our back.
They dropped the cases against a number of our claimants – again before the court case.
And we had established that the confidentiality clause request that members should not talk to anyone except their GP and the Samaritans on pain of another possible disciplinary charge is just that, in practice a disingenuous request.
Because we proved it by seeking legal advice and representation.
The task now I think is to carve a future political representation involving in particular our trade unions and Party units that will do what our trade unions and socialist societies intended when they established the Party in 1900