The Labour Party: Three Unnoticed Changes

The Labour Party: Three Unnoticed ChangesAuthor(s): Paul McCormickSource: British Journal of Political Science, Vol. 10, No. 3 (Jul., 1980), pp. 381-387Published by: Cambridge University PressStable URL: http://www.jstor.org/stable/193528 .

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B.J.Pol.S. Io, 381-388 381 Printed in Great Britain

Notes and Comments The Labour Party: Three Unnoticed Changes

PAUL McCORMICK*

Within the last seven years there have been three important, but largely unnoticed, changes affecting the respective powers of the National Executive Committee (NEC) and the

Constituency Labour Parties (CLPs). Assessment of these changes is not facilitated by the fact that they are central to an inner party dispute between left-wing and right-wing factions. The political rhetoric which has accompanied them is not a reliable indication of their true import and nature. This paper aims to describe and analyse the three changes and to assess them in terms of their impact on constitutional structures and their likely consequences for factional struggle - but not to make any value-judgements upon them or upon the inter-factional disputes.

THE ABOLITION OF THE PROSCRIBED LIST

The first change was the abolition of the Proscribed List in 1973. Of the three this change has been the least unnoticed. Yet it was officially presented as no change at all.

The Labour party had constitutional provisions designed to prevent certain sorts of individuals and organizations operating inside it. These provisions partly reflected hostility towards 'parties within the party', a sentiment which James Callaghan has

expressed several times as Leader calling upon both the Tribune and the Manifesto groups in the Parliamentary Party to disband. But the provisions were chiefly motivated by a concern that 'extreme' or 'Marxist' groups or persons could acquire greater influence

by organizing secretively inside the Labour party than if they stood at elections under a different party label, and that the Labour party needed special protection against this.

The rules defined certain kinds of organizations as ineligible to affiliate to the Labour party. An organization was ineligible if, not being already affiliated, (a) it had its own separate propaganda and a distinctive programme and policy; (b) it had its own branches in the constituencies; (c) it promoted Parliamentary or local government candidatures; (d) it owed allegiance to any foreign organization.' Persons belonging to such ineligible organizations were themselves ineligible for membership in the Labour party.2

The NEC is charged with the duty of enforcing the Constitution and Rules of the party and expressly empowered to take 'any action it deems necessary' to fulfil this obligation.3 The CLPs are under an identical constitutional duty in relation to their own constituencies, which entails denying affiliation to ineligible organizations, their branches and subsidiaries, and to persons who are members of them. The NEC has the power and the duty, if a CLP neglected to fulfil this obligation, to act directly itself by expelling persons from the

ineligible organizations which became known as the Proscribed List. It was compiled by

* Centre for Socio-Legal Studies, Oxford University. 1 See The Labour Party, Party Constitution and Rules 1974 (London: Transport House, 1974),

Clause II (3). 2 Party Constitution 1974, Clause II (4). 3 Party Constitution I974, Clause VIII (2c).

0007-1234/80/2828-2500 x 02.00 ) Cambridge University Press



382 Notes and Comments

Labour party (and thereby from their CLP - for membership of the CLP is bi-conditional upon that of the national Labour party) and by disaffiliating the CLP.

Prior to 1973, the NEC, in pursuance of its constitutional duty, drew up a list of the Transport House officials on the strength of their own researches and reports from party agents and regional officials, and it was revised from time to time when groups disbanded, regrouped, or new ones were formed. For example, in the I96os proscribed organizations included the British-Soviet Friendship Society, the World Peace Council, and the World Federation of Trade Unions. Many of the organizations on the Proscribed List were Soviet Communist, but Trotskyist organizations were also included. In I959 the Trotskyist Socialist Labour League was proscribed.

The NEC exercised its disciplinary powers over individual members too - for instance, in 1965 it expelled eighteen members of Paddington South CLP following complaints about a Trotskyist takeover of that CLP.

In 1973 the NEC decided to abandon the Proscribed List completely. The reasons for this move which were provided for the press and for academics and the public generally were also provided for the internal consumption of active party members. They were set out in a circular dated July 1973 from the General Secretary to CLPs and affiliated organizations. They are quoted in full:

The National Executive Committee conducted a complete review of the list of proscribed organizations during which it became apparent that the list was unsatisfactory. While some political organizations had been formally placed on this list, others which advocated policies of a like nature were not included. Difficulties have been experienced in keeping a current record of the many political organizations that are established, many of which are of short life, change their names or merge with other organizations. Moreover, the existence of the list had created an impression that if an organization were not listed it was in order for affiliated and party organizations to associate with it.4

The circular concluded by saying that the NEC 'wishes to emphasize that this decision [to abolish the Proscribed List] does not represent any change in policy' but that it would continue to carry out its duties in this field and so should the CLPs.

The NEC thus claimed that technical, administrative factors rendered the Proscribed List an unworkable device. It was not explained why the device had apparently worked adequately for over twenty years and had been repeatedly used during that period, nor why the answer to the alleged lacunae on the List was to abolish the List rather than compile a more complete one, nor how it could be that the ineligible organizations could transmogrify themselves more quickly than they could be entered on the List. But this is to take the political rhetoric at face value and overlook the fact that by I973 the political composition of the NEC had changed from a right-wing dominated body to one where the left-wing was approaching dominance.

At first sight the abolition of the Proscribed List was a diminution in the powers of the NEC. But it is not usual for political bodies voluntarily to divest themselves of powers, still less to take the initiative in doing so. This change therefore merits a closer inspection. What emerges is that it is the CLPs who are the real losers out of this change. The NEC has not diminished its powers. The change is one of policy, not a constitutional amendment, and the Proscribed List could therefore be reintroduced by the NEC at any time without notice. In the meantime it can act against any organization of which it disapproves on the basis of the existing rules on ineligibility that remain in force.

4 R. G. Hayward, General Secretary of the Labour Party, circular letter to Secretaries of Affiliated Organizations and Central, Constituency and Local Labour Parties, headed Discontinuation of the Proscribed List, dated July 1973.



Notes and Comments 383

The real beneficiaries of the List were the CLPs for it gave them the authority to take action against individuals and organizations without the risk of subsequent repudiation by the NEC, and it also informed the CLPs which organizations were ineligible. The NEC has vast resources in comparison with an average CLP and is able to collate information on a nationwide basis. A CLP faced with meagre reliable information and questionable authority would naturally be reluctant to take disciplinary action, which could even have

legal repercussions in court actions, once this central beacon were removed. And this has proved to be the case - a number of those persons who were proscribed in the 1950S and I960s have rejoined the Labour party and no CLP since 1973 has been upheld in banning an organization from affiliating and in expelling or barring its members.

It is the organized groups like the Militant Tendency, organized on an inter-constituency basis and with their own considerable resources, that have benefited from the change at the expense of the CLPs. The sequel to the abolition of the List was the shelving of the Underhill Report, a report by the party's National Agent on groups such as the Militant Tendency - which in the 1950s or i96os would have been the prelude to their being entered on the Proscribed List - followed by a decision by the NEC not to take any disciplinary action.5

If the abolition of the Proscribed List really had not been a change of any significance it would have been odd to have made it at all, and stranger still to have published the fact and sent a circular to hundreds of party organizations to inform them of no change. But in reality it was a substantial change of approach and the subsequent policy on matters of ineligibility by the NEC is confirmation of this. A Proscribed List is a potent instrument of political control in a party with a low and declining level of membership where active members form a small minority and CLPs can be controlled by a very small number of members, especially if they form a well-organized faction. In abdicating this function by a policy change the NEC was giving tacit consent to the operation of the inner party organizations that would otherwise have been deemed ineligible, whilst reserving powers to intervene at any time.

THE MIKARDO DOCTRINE

The second change was the Mikardo Doctrine enunciated in 1974 by the left-wing MP, Ian Mikardo, who was at that time the Chairman of the Labour party. This doctrine stated that the NEC should intervene in the rejection, or as it is often termed, the 'deselection' process6 only when procedural irregularities occurred. Formerly the NEC had considered substantive questions such as the political merits in the broad sense, comprising electoral repercussions, considerations of equity, factional advantage, policy issues and so forth.

After 1974 the Mikardo doctrine was repeatedly cited as the reason for the NEC's refusal to assist' Social Democrat' MPs who were repudiated by their General Management Committees. The Press and Publicity Section at Transport House frequently declared that the NEC did not have the power to intervene.

This was not correct. The constitutional powers of the NEC are those powers which

5 Confidential Underhill Report to NEC Meeting, 26 November 1975, referenced NAD/92/ 1/75, and supplement of the same date, referenced NAD/92a/I 1/75. For responses of NEC on I5 December 1976 and 26 January 1977 to this continuing political issue see: 'Report of Special Committee to examine documents on Entrism ', in NEC Report to Annual Conference, z977 (London: Transport House, 1977), pp. I60-2.

6 i.e., the process whereby a CLP decides not to renominate a sitting member as the Labour candidate for the next general election.




are granted expressly or by implication in the Labour Party Constitution and subsequently made binding upon the CLPs by being adopted and incorporated in the constituency parties' rule-books.7 (The mere grant of power in the Labour Party Constitution is insufficient for it is the incorporation of such a grant in the CLP rule-book that enables it to be exercised. But CLPs are required to adopt constitutional amendments approved by the Annual Conference.) The Mikardo doctrine was not a constitutional amendment - under Clause XIII of the Labour Party Constitution only the Annual Conference has the power to make such changes. It was essentially a statement of policy. Under the (Model) Rules for CLPs the deselected MP has the right of appeal to the NEC which has 'the power to confirm, vary or reverse' the decision.8 The absence of stated criteria for such a decision creates a constitutional presumption that it is unfettered provided it is exercised reasonably and in good faith. Thus it would cover reversals inspired by both substantive and procedural considerations.

Nevertheless, the Mikardo doctrine is not without constitutional force. After the passage of an indeterminate time it will become a constitutional convention which acquires legal significance as part of the custom and practice of the Labour party. From a purely political point of view it acquires the force of repeated precedent and it may be that a more right-wing NEC (if there is one in the future) would be disinclined to reassert the full extent of the NEC's formal powers over CLPs' deselection processes.

At first sight the Mikardo doctrine appears to be a derogation from the NEC's effective powers. Instead of a broad arbitral or adjudicative role, it would seem that the NEC, in endorsing this doctrine, opted for the role of an umpire whose function it is merely to state whether the batsman is 'out' in a technically valid manner on a particular occasion rather than to make any judgement of his batting record and abilities.

However, the appearance is misleading. The Mikardo doctrine invests the NEC with a peculiar kind of elastic power that can be extended almost to the full degree of the original formal powers. Yet, at the same time as being virtually unlimited, this power masquerades as restricted and neutral. It is thus an ideal weapon in the political armoury for it is potent yet largely concealed. If it is sought not to exercise it on any given occasion (a non-decision which is itself an exercise in political power and political choice) then recourse may be had to the inbuilt pretext that the power is not available, does not exist. If it is sought to exercise it this can be done on convincing ostensible grounds which belie the real political reasons for so doing. For instance, the NEC retrospectively invalidated the February 1976 Annual Meeting of the Newham North-east Party. The ostensible grounds were an irregularity whereby an affiliated organization had sent in four delegates too many. The real political reasons were that there had been a great volume of adverse press publicity for the Labour party and the MP, Reg Prentice, was still in good standing at Westminster and still a Cabinet Minister. Had the ostensible grounds been the real reasons other irregularities would have been used as additional bases for invalidation and the meeting would have been reconvened de novo within a short period. But this would have had the effect of tilting the balance of political forces in the constituency decisively away from the left. Consequently the NEC made a grand gesture citing the ostensible grounds but avoided taking the full action, required constitutionally, which would have altered the political outcome of the reconvened meeting. In either case the political costs are minimized: if the power is exercised opponents are placated by appeal to procedural irregularities which they cannot

7 See The Labour Party. Party Constitution and Rules (London: Transport House, 1976), and the Rules for Constituency Labour Parties and Branches (London: Transport House, 1975).

8 Clause XIV (7) of the Rules for Constituency Labour Parties.




afford publicly to associate themselves with, and the wavering and undecided elements are won over; if the power is not exercised any criticism is rebutted by pointing out that there are no valid grounds to intervene. There is therefore an appeal to obligatoriness - the NEC is either obliged to intervene or obliged not to intervene. Either way its decision is presented as that of a person whose hands are tied.

The NEC is thrust into a quasi-judicial role in relation to its disciplinary powers over CLPs, but it does not, of course, have the facilities, training, or temperament for a judicial approach. There is no established body of constitutional principle and no procedural rules like stare decisis which would guarantee a certain amount of objectivity and consistency. Consequently decisions tend to be ad hoc and reflect the political balance of forces on the NEC at the time rather than any cogent rules of interpretation. There is great scope for legal tailoring - waiving or insisting on certain technicalities as political factors dictate.

In the Labour party there is no specialized and separate judicial branch. Rule- interpretation and rule-enforcement are entrusted to the NEC and the permanent officials at Transport House. The officials are political animals who follow the dominant faction on the NEC. Members of the NEC are, for the most part, active political figures with a vested interest in the outcome of political disputes between MPs and their CLPs.

In practice, the Mikardo doctrine has worked out in an uneven manner in inter-factional disputes. Between 1974 and 1979 the NEC refused to intervene to save 'Social Democrat' MPs Frank Tomney, Sir Arthur Irvine, and Reg Prentice. In the last case there were particularly flagrant infringements of rules. On the other hand the left-wing MP, Maureen Colquhoun, was saved on a very minor irregularity. Experience generally of NEC-CLP relations between 1976 and 1979 indicates that a left-wing dominated NEC will, subject to certain exceptions, support left-wing dominated CLPs against their right-wing MPs. Since, in practical terms, the likelihood for the forseeable future is of left-wing CLPs removing right-wing MPs rather than right-wing CLPs removing left-wing MPs, the Mikardo doctrine could become of increasing importance during the next few years in giving left-wing constituency activists the green light to deselect right-wing MPs.

The Mikardo doctrine enables the NEC to intervene to protect any MP to whom it is sympathetic because if such an MP came under threat from his CLP, procedural irregularities could always be discovered and invoked to save him. For irregularities are very often present in some form, as they must be in a voluntary association with very complex sets of interlocking rules run by part-time amateurs with limited resources and with little understanding or training in constitutional or legal matters, and often with little respect for constitutionality. Moreover, precisely what counts as an irregularity is itself open to dispute and bogus irregularities can always be invented without much likelihood of discovery. The prevalence of genuine irregularities and the scope for invented irregularities, to say nothing of the possibility of contriving irregularities, by giving incorrect advice (members of some CLPs have alleged that certain Labour party officials deliberately gave incorrect procedural advice so that the proposed action could be subsequently invalidated) mean that there is never any difficulty in finding an irregularity should one be required.

The effect of the Mikardo doctrine has been to camouflage and enhance the powers of the NEC (the camouflage itself constituting an augmentation of effective powers by reducing the costs of exercising them), while ostensibly diminishing them, and to create a form of power that lends itself to partisan application when the left-wing dominates the NEC. Whether this doctrine would work in favour of a right-wing dominated NEC is more doubtful. It depends on how far NEC powers are transferable as between the inner party factions. This question lies outside the scope of this paper.




THE 1977 RULE CHANGES

The third change has been the 1977 Rule Changes. These changes to the Model Rules governing Constituency Labour Parties constituted their most radical overhaul since they were originally drafted.9

The manner of their adoption is itself eloquent testimony to the reality of the NEC's

power over the Annual Conference. The new rules were drafted by Transport House officials in conjunction with the Labour party solicitors (Milners, Curry and Gaskell) under the aegis of the NEC which then endorsed them. The I977 Annual Conference rubber-stamped them. There was no alteration. The proposals were first published a few months before the Conference. There was virtually no discussion within the Labour movement of their importance and significance. Few understood their implications. They were adopted on trust, the argument being that for technical legal reasons they were necessary. Here was a clear case of major constitutional change emanating not from the

grass-roots but from the top. Certainly there was some truth in the claim that the CLP rules needed to be tightened

up in the sense of better drafted. They had never been professionally drafted and they were often vague, full of omissions, and ambiguous. For example, under the old rules, if a CLP Annual Meeting was aborted having once begun (e.g. prematurely terminated

by an injunction, fire, riot or other cause) then the old officers and committees ceased to hold office and no new ones replaced them, creating a constitutional vacuum with no

body which had legal power to convene a new Annual Meeting.10 The legal actions brought over Newham North-east CLP in Spring 1977 highlighted

these constitutional shortcomings. The changes were introduced under the pretext that

they were necessary because of the Newham North-east legal campaign. In actual fact the opportunity was taken to make sweeping substantive changes to the Rules which were in no sense required by, or even related to, events in Newham North-east. The substantive

changes were represented to the rank-and-file as mere technical tidying-up changes proposed on legal advice.

One change was to enable the General Management Committee to reject applicants for membership who had been accepted by their local ward when previously the constitutional requirement was that the General Management Committee must accept them.11 It is uncertain what the inter-factional effect of this change will be, but it is a change of substance.

Another change provided that amendments to CLP rules made by the Annual Conference or the NEC took immediate and automatic effect whereas previously CLPs, though the amendments were mandatory upon them, subject to their residual legal rights stemming from their constitutional position as semi-autonomous entities in a federation, at least had the power to delay implementation of the amendments. Where there is an

ongoing dispute this power of delay can make a great difference. This change took away the power of delay and at the same time whittled down the residual legal rights of the CLPs.'2

The undermining of constituency party autonomy was furthered by a new sub-clause

9 See 1975 Rules for the old rules and Rules for Constituency Labour Parties, 1977 for the new rules.

10 See Rules for Constituency Labour Parties, 1975, Clause X (6) to be construed in conjunction with Clause XII (I) and Clause XIII (I).

n See 1975 Rules, Clause V; and I977 Rules, Clause V. 12 See 1975 Rules, Clause IX (3); and I977 Rules, Clause IX (3).




which transferred a CLP's assets to the (national) Labour party in the event of dissolution or cessation of existence for any reason.13 This very significant change made it easier for the NEC to dissolve a dissident CLP without the fear of loss of sometimes considerable assets, especially where a Labour Club with freehold premises was owned by the CLP. The provision also strengthened the case for arguing that CLPs were not autonomous but were mere creatures of the NEC. This argument was upheld in the Court of Appeal partly because of these rule-changes.14

A fourth change reduced the period of notification to delegates required for the convening of the CLP's Annual Meeting from twenty-eight to seven days.'5 This effectively downgraded the Annual Meeting in comparison with ordinary GMC meetings which also required seven days' notice. In view of the greater activism of the left this change was calculated to work to its advantage by lowering the turnout of the right.

The most important change of all gave the NEC proconsular powers to intervene on its own account in the selection of parliamentary candidates and to supersede completely the constituency Labour party. Previously, there was a constitutional requirement that the constituency party's Executive Committee had to be 'consulted' and had to 'agree'. What this means is that now the NEC can, if it chooses, select a Parliamentary candidate for a constituency without any reference whatever to the local constituency Labour party if it is of the 'opinion that the interests of the Labour Party demand it'.16 This vague and subjective test gives the NEC carte blanche to override CLPs in their most important function by dispensing with the normal selecting procedure and substituting anyone it pleases.

CONCLUSION

These three 'unnoticed changes' - the abolition of the Proscribed List, the Mikardo doctrine, and the I977 Rule Changes- have, upon close examination, far-reaching implications for the internal balance of power in the Labour party. Indeed, the main reason why they have not been widely noticed is that no attempt has been made by Labour party officials to advertise them; instead they have been minimized. They are important to active party members engaged in factional disputes as symbolic expressions of a changed attitude on the part of the NEC towards a more left-wing orientation. This affects factional struggles in the CLPs through the 'Law of Anticipated Reactions'. But they also involve an actual shift of power between intra-party bodies.

The net effect of the changes is to undermine constituency party autonomy. Organized factions within the party have benefited from this and from being given, in reality though not in rhetoric, freer rein. But the main beneficiary has been the NEC, which made these changes, and which as a result was able to conserve all its existing powers, reduce the political costs of exercising them, and influence internal party developments more subtly. The political rhetoric of NEC neutrality between factions in internal party matters was reinforced by appeal to technical, legal and administrative' necessities', both in introducing the changes and in the subsequent exercise of them.

The changes have strengthened the position of the NEC vis-ai-vis the CLPs, thus promoting further centralization in the Labour party and making local party democracy an increasingly inaccurate designation of political realities.

13 See I975 Rules, Clause XVI, and I977 Rules, Clause XVI (5). 14 See Lewis v. Kitson [1978] The Times Law Report, 25 January 1978. 15 See I975 Rules, Clause XIII (i); and I977 Rules, Clause XIII (ic). 16 See 1975 Rules, Clause XIV (4); and 1977 Rules, Clause XIV (4).



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The Labour Party: Three Unnoticed Changes