As is widely known, in an email to CLP Chairs and Secretaries on 12th August, the Labour Party’s General Secretary David Evans ruled that three subjects were ‘not competent business for discussion by local parties’ — the Panorama programme legal settlement; the EHRC report into claims of antisemitism in the Labour Party; and the Party’s acceptance of the IHRA definitions of antisemitism and its examples.
It is an odd collection of topics. The first was said to be for legal reasons, although this lawyer finds them unconvincing; no discussions or motions in branches or CLPs can take back or impugn the apology given or the legal settlement so far as I can see. The second is said to be because it isn’t out yet – but that is like saying we shouldn’t discuss Brexit because we don’t know the final form it will take yet. There is a lot to say, about Brexit and about the EHRC investigation, in advance of the outcome. But the third is perhaps the oddest – the reason is said to be that the definition was properly adopted by the NEC (the National Executive Council of the Labour Party) in accordance with the rules. Yes, but the NEC is subject to conference, and there is nothing in the constitution that stops CLPs putting procedural motions to the 2021 conference requiring it to be dropped; there is nothing in the constitution, up to and including Clause 4, that cannot be discussed and changed by conference. If we can pass motions on the subject, we must be able to discuss it.
I drafted a motion for my branch party to discuss (click here for the full text), asking what the General Secretary’s authority was for issuing the instruction and urging that it be withdrawn. To my surprise, the Acting Regional Director, Ellie Buck, wrote to my branch EC saying that my motion was itself “not competent business to be discussed”, giving as her reason that it was discussing the topics that Evans had told us were not competent to be discussed (which it wasn’t – all it said about those topics was that they were “contentious for many Party members and the subject of widespread public debate”; no opinion was offered, the motion concerned the instruction itself).
So there we have it. These three topics are “not competent to be discussed” and not just the General Secretary, but more junior members of the Party’s paid staff, have the right to declare that a new topic – the fact of the General Secretary’s instruction – is also “not competent to be discussed”.
This is not a left-versus-right issue but an issue of democracy. A couple of years ago we had a similarly worded instruction from Jennie Formby, telling us not to discuss ongoing disciplinary proceedings. I think the same problems apply there.
There is a legal point here. The authority of paid staff is delegated from the NEC, and cannot be greater than that of the NEC. The NEC has the power to “issue guidance and instructions on the conduct of meetings” (1.VIII.3.E) – conduct, not content. Mr Evans’ instruction had not been discussed by the NEC; he obviously thought he had delegated authority without any express authorisation from the NEC – at least some members of the NEC are uncomfortable with that.
But for the present I am more interested in the phrase that David Evans, and Jennie Formby, and Ellie Buck, have used. They say that such-and-such is “not competent business” for a branch/CLP. You might think that that is just vacuous bureaucrat-speak for “you are not allowed to talk about it”. It certainly feels enormously patronising – these three people, clearly, are competent, and we are not. But it is actually a legal phrase – no surprise to find legal jargon being used to confuse and confound.
A good example of its legal usage might be the Scottish Parliament. This was created by a statute of the UK Parliament, the Scotland Act 1998, which gave the devolved parliament power to legislate in certain areas but not others. As a result the Scottish Parliament has competent business, that in relation to which they have the power/competence to legislate, and other business where they don’t have that power (although of course this does not limit their ability to discuss anything and everything). The phrase relates to the situation where a body creates another body and delegates some, but not all, of its powers to the second body. A local authority committee, for example, has specified areas of competence, given to it by the full council. It makes no sense, on the other hand, to talk about competent business for the UK Parliament; it is sovereign, there is nothing it can’t legislate about. It can rule that night is day if it wishes.
So when a General Secretary, or even the NEC, talks about “competent business” for a CLP, they are talking from a mindset where they have all the power and whatever CLPs might do is defined and limited by them. It is a view of the Labour Party where the executive is the supreme authority and CLPs do what they are told.
But, as we all know, that is wrong. The Labour party is a democratic party. The sovereign body is the (usually) annual Labour Party Conference, to which the NEC is accountable, and which has the power to change all of Labour’s procedures and policies, indeed to change the NEC itself. Conference is made up of delegates from CLPs, unions and socialist societies. These are the “competent” bodies in the Labour party. It is for them to define what the executive has the power to do. It makes sense to talk about “competent business” in relation to the NEC, or a Secretary-General; what they can do is defined by rules made by conference. Their purposes, duties and powers are those set out in Chapter 1 Clause VII and VIII of the Rules; they are extensive, but limited. One thing delegated by conference to the NEC is making rules and guidance on the conduct of CLP meetings, say on the manner in which nominations in the NEC elections are made. But it makes no logical sense for conference to delegate powers to the NEC to limit what CLPs can say. They are part of the party’s sovereign body. They must be able to discuss everything.
The rules say so explicitly (1.V.1): “At all levels the Party will ensure that members, elected representatives, affiliated organisations and, where practicable, the wider community are able to participate in the process of policy consideration and formulation.”
In my considered opinion, instructing branches and CLPs not to discuss any topic is “not competent business” for the NEC or any paid staff, including Ms Formby, Mr Evans, and Ms Buck.