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The Lib Dem disciplinary process is a Harassers Charter – it needs to change

The long running sexual harassment story in the Lib Dems has crawled across a milestone from one phase to another. Having failed to reach a clear conclusion, the Lord Rennard story will sadly carry on to the detriment of all involved. At the heart of it all is the party’s disciplinary process (such as it is), and the culture surrounding it. In adopting the standard of “proof beyond a reasonable doubt”, we Liberal Democrats would appear to consider ourselves equal to a criminal court. This is an arrogant conceit; it cannot be left to stand.

There is no party (or corporation, or government department) that is competent to manage its disciplinary processes to the standards of a criminal case. They simply do not have the necessary capabilities: to gather evidence, build cases for and against, enough to withstand the rigour of full cross-examination. In theory, under the criminal standard all cases would expect to be thrown out. In practice, anyone with authority or influence, would be most able to exploit this glaring flaw. Essentially, it is a get-out-of-fail-free card for those with power. (Those without power, however, would find themselves being condescendingly informed that of course the case against them is of the standard of a criminal court)

In short, the Lib Dem’s current procedure is a Harasser’s Charter.

The first challenge to making change is the culture. While the procedure being an embarassing nonsense, the party leadership and tribal loyalists are not keen to have to admit to such in public. Thus, a long list of lazy excuses to do nothing. We are told that these matters hardly equate to Jimmy Saville, or that sexual harassment claims are all about women who can’t handle being chatted up down the pub. “No true liberal” would challenge the broken procedure, because that would show contempt for due process.

Part of the problem is that discplinary matters are typical confidential affairs, and officials and officers throughout the party have never actually had to defend their failures to those with no vested interest in staying quiet in the name of the party. With this particular matter being considered in full view of the national media, many have retreated to their metaphorical bunkers. This has produced simplistic, black-and-white thinking.

The reality, as always, is that there is a scale of behaviour. The extremes only rarely apply. Most criminal cases are universally recognised as serious (even if they get covered up). Most trivial incidents do not provoke actual complaints (although some find it convenient to pretend otherwise). A good procedure is matched to the severity of the issue, with minor issues being dealt with by simple management decisions or even a just a good honest conversation between the individuals concerned.

Here’s a more complete range of problematic behaviour, organised by the manner in which they can be dealt with:

1. Criminal Courts

The Jimmy Savilles of the world – genuinely criminal levels of abuse. To be dealt with by the police and the criminal courts. This level of headline grabbing abuse is the only level of misconduct which is universally criticised.

2. Civil Courts

Cases that require the civil courts to resolve. A good example here would be financial abuse, for instance as was recently seen amongst the carers at Mencap’s Dolphin Court. When organisations do not deal with a complaint fairly, the complainant has clear recourse to legal proceedings in the civil courts. At this level, high profile individuals can often hide behind their organisation’s policies and avoid personal accountability – and so begins the tricks by which those guilty of abusing their position defend themselves.

3. Disciplinary Procedures and Tribunals

Workplace harassment, discrimination, bullying, etc. Tribunals and disciplinary panels make it possible for complaints to be heard and fair outcomes achieved, without hiding behind the barrier of expensive, time-consuming, and intimidating legal proceedings. They do not require criminal standards of proof, making greater use of witness statements and allowing panels to use their judgement regarding hearsay. They are a critical mechanism by which those without authority or riches can get natural justice in their day-to-day lives.

4. Management Decisions and Elections

Persistent Arseholes. There are those who consistently push boundaries instead of treating their position with respect. We’ve all met them. They abuse their power, resort to deceit as a matter of course, or simply pursue their own agenda without regard to the impact on others and their organisation. Genuinely persistent arseholes should be sacked, de-selected as candidates, or voted out of office. It shouldn’t require quasi-legal processes or actual lawyers to improve your own little corner of the world.

There’s also a safety valve here. Manufactured outrage does happen, and overly sensitive complaints are made. There are chancers who play procedural chicken, knowing that simply being willing to make a complaint is seen in some quarters as actual proof. We expected managers and the general public to form a judgement on whether an incident genuinely requires sanction.

5. Standing up for yourself and others

Occasional Arseholes. This is every single one of us, without exception. This is worth repeating: we are all going to make mistakes. It would be a mockery of liberalism, however, to argue that we are all therefore guilty. People say the wrong thing, misjudge the context, fly of the handle, and so forth. A lot of good humour comes from winding people up, breaking taboos, and being generally outrageous. At this level, when feelings are hurt, we do not turn to formal processes. People can work through their differences by themselves – and we cut each other some slack, too.

The risk here is that some people resort to easy excuses such as “don’t be so sensitive” or “it was just banter”. It is difficult, too, to judge the difference between genuine and manufactured outrage. Political parties and pressure groups often choose to over-react to further their agenda.

There is a simple rule in the case of harassment, though. As soon as a formal complaint is made, you are at least at level 3. The easy excuses are no longer valid, so don’t be one of those muppets who “can’t see what the fuss is all about”.

6. “Reverse Abuse”

The malicious complaint. This is Level 3, Revisited. There are those who have learned to abuse the power of complaints proceedings, turning rules intended to protect into a weapon to hurt (and to waste vast amounts of everyone’s time). If you ever have reason to read the literature on harassment in the workplace, one of the more tragic themes is that people who earn themselves multiple complaints of misconduct are essentially given a training programme in how to game the system. They can become extremely adept at threats and escalations that others find intimidating.

As with all forms of justice, the only thing to be done here is take things case-by-case: you have to follow due process, and exercise good judgement.

So what just happened?

The Lord Rennard case is firmly at level 3. Alastair Webster has made clear the claims are credible, that distress has been caused, and that a number of incidents are involved. Whether a formal warning or sanction is warranted is impossible for those outside the process to know, but it certainly looks like it would be impossible to settle the case without a hearing with witnesses present.

It is a great shame it has been assesed at level 1, as if the party were the Crown Prosecution Service considered criminal charges. This is a ridiculously high barrier to overcome. Sexual harassment in work situations, both in employment and voluntary organisations, should not require full legal proceedings and forensic evidence.

The Lib Dems have ended up with a quasi-legal Frankenstein: a declaration that an invididual must apologise, on the basis of a report that the individual isn’t allowed to see due to confidentiality concerns, because it could not be proven in a criminal court that simple standards of personal conduct have been breached. The smell of this will linger awhile.

I can’t say what’s to be done in connection with Lord Rennard; the situation has been too badly handled for an outsider to judge fairly. But the next step is clear. The party must make clear by the Spring Conference in March that new, fair and transparent processes will be put in place. They should be discussed in a session at conference (not necessarily on the main stage), and then such changes as necessary should be made to the Constitution and Membership rules.

The knowledge is out there: employment law, ACAS, the National Council of Voluntary Organisations, academic research. Internally, suggestions have been made and amendments submitted, and more will follow. The question is: will the party leadership act?

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