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Labour party disciplinary process for antisemitism complaints adhere to natural justice

Published:

Re: Neslen v Evans [2021] EWHC 1909 (QB)

In this case the Claimants sought to impugn the Party’s disciplinary process used to investigate antisemitism complaints. The Claimants, who were all members of the Labour Party subject to allegations of antisemitism or misconduct, sought declarations that the Party’s disciplinary process was unfair and in breach of contract on the basis that:

  • The Party had applied criteria, including guidance on the definition of antisemitism, contained in an unpublished Code of Conduct which the Party had not made available to the Claimants at the time they were charged with misconduct.
  • The Equality and Human Rights Commission’s (EHRC) recent Report into antisemitism in the Labour Party had found that the Labour Party’s disciplinary processes were fundamentally unfair and, in circumstances where the Leader of the Labour Party Sir Keir Starmer MP had accepted all the findings of the EHRC, the continuation of investigations into the Claimants’ conduct was unfair and unlawful; and
  • The Party had materially mis-stated the Claimants’ obligations of confidentiality in the disciplinary process.

 

Held: Mr Justice Butcher dismissed all the Claimants’ claims and found that the Labour Party had adhered to the requirements of natural justice in its investigation (and determination) of the Claimants’ disciplinary cases. The Court further found that the Claimants’ representatives knew about the terms of the Party’s Code of Conduct on antisemitism at a formative stage. The Court determined that the EHRC had not found that the Party’s disciplinary processes were fundamentally unfair and that the Party had made various improvements to its disciplinary procedures addressing antisemitism in 2019. Lastly, the Court found that the Party had not misstated the obligations of confidentiality to which the Claimants were subject in the disciplinary proceedings.

 

The Court’s judgment is significant for UK political parties and similar membership organisations like Trade Unions and professional bodies:

 

  • The requirements of fairness in political parties’ disciplinary proceedings are no higher than the basic requirements of natural justice (save if the contract of membership explicitly states otherwise). So far as giving notice of allegations is concerned, a party (and any other similar organisation, by analogy) is required to set out its concerns in a way that is sufficient for a member to address the allegations made against her if she wishes to do.
  • There is a public interest that political parties ought to proceed to determine allegations of discrimination properly. Those disciplinary proceedings ought not to be halted unless they have been shown to cause actual unfairness to the alleged wrongdoer. So far as actual unfairness is concerned, what matters is whether the procedures are “actually unfair”, not whether some other procedure might have been “better or more fair”.
  • The courts should be very reluctant to intervene in ongoing disciplinary proceedings in political parties (or, for that matter, those operated by employers or regulators more generally), and will only do so if the matter in question is such a breach as cannot be remedied in the disciplinary proceedings themselves. The Court will not micromanage the disciplinary process. If any potential unfairness is capable of cure during the course of the disciplinary proceedings, then the making of a declaration before their conclusion may serve no useful purpose and be an unnecessary intervention by the court in a procedure which it should not be micro-managing. This latter point is important for claims about political parties, but it is also relevant to other types of statutory and contractual disciplinary proceedings, especially those undertaken by regulatory bodies and employers.

 

Tom Gillie was involved in this case.