Is this the most crackpot proposal ever put to FBU annual conference? / smolaw11

BETWEEN 10 – 13 MAY, the FBU’s annual conference will take place in Brighton. Delegates from every brigade across the UK will gather at the Grand Hotel in the town to debate and vote on a wide range of topics affecting the union’s members.

One particular item that has caught the eye of this blog is a proposal by the executive council to change the rules of the union so that any policy agreed by annual conference will be considered to be in force for 20 years (unless conference itself subsequently determines otherwise). Here is the full wording of the proposed new rule:

“Policies agreed by conference shall remain in place until they are superseded by subsequent conference decisions or until 20 years has expired. Each year from 2023, at least six months in advance of conference, the executive council shall remind all members of policies which are due to lapse. The executive council may also periodically propose to conference which policies should be considered lapsed following a policy review.”

We consider such a proposal to be misconceived, perverse and unworkable. Before we show why, here’s the backstory.

The proposal has almost certainly been made as a reaction to the high-profile employment tribunal case last year in which former executive council member (and CDFBU national secretary) Paul Embery won a claim for unfair dismissal against the union. In its findings, the judge-led tribunal panel concluded that a policy relied upon by the union in sanctioning Embery – which called for a “Remain” vote in the EU referendum campaign and required officials of the union to avoid joint campaigning with traditional opponents for the duration of that campaign – was no longer in force at the time Embery addressed a cross-party pro-Brexit rally in 2019.

The tribunal ruled, quite reasonably, that a policy that had been written specifically and exclusively for the referendum campaign in 2016 could not be considered to still apply three years later when that event was long over. The policy had naturally expired when the referendum campaign had concluded, and the union’s position in claiming otherwise was “a nonsense”, said the tribunal.

Apparently still aggrieved at the tribunal’s findings, FBU leaders have now come up with the 20-year proposal. But have they really thought it through? Have they considered the likely messy implications? It seems not.

What the proposal fails to acknowledge is that, as the employment tribunal recognised, union policies can naturally lapse. That can happen when, as in the particulars of the case considered by the tribunal, an event which was the focus of the policy has concluded. It can also happen when, for example, the requirements of the policy have been satisfied in some other way, or when the circumstances that existed at the time the policy came into force no longer apply. (These are well-established principles understood by most trade union and political activists.)

Let’s give a historical example. During the apartheid era, many unions, including the FBU, had clear policies in place which called on members and officials to boycott South Africa. These usually included a ban on delegation trips to that country, and other measures.

Apartheid ended in the 1990s when South Africa became a multiracial democracy and was welcomed back into the international community. When that happened, the FBU’s annual conference did not go through the rigmarole of formally rescinding every policy it had in respect of South Africa (a fact confirmed by the president of the union in the employment tribunal case). There was no need to do this, as everyone understood that the circumstances which existed when the policies were agreed no longer applied: apartheid was over, so the policies had naturally expired.

If the logic of the position now being proposed by the leadership had applied back then, it would mean that the FBU would have continued its boycott of South Africa even after apartheid had ended – either for 20 years or at least until conference had gone through some process of formally rescinding the policies after the executive council had proposed it following a periodic review. And if, during the intervening period, an official had failed in some way to boycott what was now democratic, post-apartheid South Africa, he or she would have potentially been disciplined for a breach of the union’s rules! An utterly bizarre scenario!

To give another example, annual conference might agree to instruct the executive council to hold a strike ballot as part of an industrial campaign. This becomes the official policy of the union. Once the ballot has taken place, the requirements of the policy have plainly been satisfied, the executive council can be considered to have discharged its duties, and the policy itself can be said to have naturally expired. It would be quite ludicrous to suggest that even after the requirements of the policy have been met the policy somehow remains in force and, either for 20 years or until conference has decided to formally rescind the policy, the executive council somehow remains under an ongoing obligation to hold a ballot! Yet that is the nonsensical position being proposed by the executive council.

Similarly, conference might agree some sort of industrial or political campaign with a certain set of demands. If those demands are subsequently achieved, the objectives of the policy will have been satisfied, and the policy should again be considered to have naturally expired. Once again, the idea that, even though the demands have been met, the policy is considered to remain in force and the union must continue to pursue the campaign for 20 years, or until the policy is formally rescinded by conference following a periodic review of policies by the executive council, is absurd.

It really isn’t difficult to imagine a string of other scenarios where the proposed new rule might prove similarly impractical. That’s because in not understanding that policies are often time-specific, event-specific and demand-specific, and in giving no consideration whatsoever to any scenario in which a policy could be considered to have naturally expired or been superseded in some way other than by conference, the proposal itself is deeply flawed.

Members and officials might also want to consider how, under the proposed new rule, the leadership would have much wider scope to discipline anyone who they deemed to have acted against policy.   

Turning back to the policy agreed by conference on the EU referendum campaign in 2016, the leadership’s position now – that the policy somehow remained in force years after the campaign had concluded – was not how they saw things at the time. In the days after the referendum vote had taken place, the general secretary went on the record – in the form of a circular to members and a talking-head video – to say that the result should be accepted and the government should get on with the business of taking the UK out of the EU. Now, given that the union’s clear position, as stated in the policy, was to oppose withdrawal from the EU, didn’t this statement from the general secretary contravene the policy? Well, no, of course it didn’t. What the general secretary was doing, quite sensibly, was recognising that the event for which the policy had been written had now concluded, and that the circumstances which existed when the policy was agreed by conference no longer applied. In other words, the general secretary realised that the policy had naturally lapsed.

The question, then, is why did the leadership later sanction another official for coming to exactly the same conclusion as the general secretary? (Indeed, following the tribunal, the general secretary himself went on the record to defend the action taken against Paul Embery, arguing that no member or official should have the right to decide whether a union policy is still in force – an argument which, as well as spectacularly missing the point, was totally inconsistent with his own post-referendum statements.) Have the executive council considered the fact that, if their proposed new rule had applied back then, they would have found themselves under pressure to discipline the general secretary for breaching a union policy?

Sadly, this all smacks of a leadership that, having completely messed up an internal disciplinary case, is willing to create a bureaucratic minefield in an attempt to save face.

Many other questions arise. For example, the wording of the proposed new rule would suggest that it will apply retrospectively from 2023. But how far back does the executive council intend to go when it presents its first list in 2023 of policies that have now expired as a result of the 20-year rule? Will only those policies agreed by conference exactly 20 years prior – i.e. in the year 2003 – be considered lapsed? Or will the executive council propose that every single policy ever agreed by annual conference up to and including the year 2003 be considered lapsed? If the former, it would lead to a perverse situation where policies agreed in 2003 are considered lapsed, yet policies agreed before that year are considered to still be in force. If the latter, it would mean that the executive council must propose a list of thousands of policies agreed by conference since the union came into existence (good luck to the person compiling that list!).   

Moreover, why would a union want to consider a policy lapsed after 20 years when its principles and objectives remain entirely relevant? For example, conference has agreed many policies over the years opposing such things as bullying in the workplace, racism, cuts to the fire and rescue service, and so on. Policies such as these will always be timeless, so what possible benefit is there to considering them lapsed after 20 years? And when they do lapse, does it mean that the union from that point has no official position on these things? Furthermore, to avoid that scenario, will conference be required, time and again, to go through the laborious process of agreeing fresh resolutions just to ensure the union is not left without formal policies on these important issues?

Also, what will be the mechanism for conference to decide whether to rescind existing policies following a periodic review by the executive council? Will there be a debate on each policy? Will there be a mover and seconder? Will delegates be able to oppose a proposal to rescind? How long will the conference agenda become if, following a periodic review by the executive council, a whole stream of policies needs to be formally rescinded? Is there a single other union that follows such a practice (our research suggests not)? Will delegates be able to move their own proposal to rescind a policy? And why 20 years? Why not 5, 10, 15 or 25?

Does anyone at the top of the union know the answers to any of the above questions? Have they even considered them?  

Instead of recognising that the employment tribunal came to the perfectly sensible view that union policies can naturally expire, the leadership of the FBU seems determined to create a God-awful bureaucratic mess inside the union as a response to losing the case. The proposed rule change is unnecessary, nonsensical and unworkable. The question is whether or not the leadership will have the courage to withdraw it.