I recently wrote a legal summary of the PCS Union NEC’s decision to cancel elections in 2015. I said in that post I would add some personal comments on why I don’t think a legal challenge to the High Court or Certification Officer is advisable.

As I have said previously I believe there is a reasonable case that the NEC’s decision is unlawful and could be challenged by legal means; as indeed Mark Serwotka and Janice Godrich did in 2002 to overturn a previous NEC’s decision to sidestep the union’s internal democracy. In 2002 I have no question that they were right to do so.

So what is different 12 years later when a different NEC makes a decision that overrides the explicit will of conference that there shall be annual elections of the NEC and GECs (recall it was Left Unity that campaigned for a Principle Rule change that elections “shall be held annually”). My answer boils down to two responses: trust and finances.

In 2002 Barry Reamsbbottom sought to disregard the outcome of an election by remaining in his General Secretary Post after the NEC sought to interpret the Union’s constitution in such a way to allow them to disregard the clear intent of the Union’s rules. Some argue that this is precisely what is being done here, even down to the late notice of an emergency NEC.

The issues are undoubtedly similar but there is a difference – this NEC have committed themselves to be bound by the decision of Annual Delegates Conference 2015 to ratify the decision of NEC. Therefore, even though implemented wrongly there is a decision to cast the suspension under some form of approval process to which members can contribute to. More personally, while mistakes have been made I also have more of a level trust in the leaders now than was the case 12 years ago. The decisions that have been made were I think made with good intentions in the main – although it has to be said I am not sure the same can be said about how the matter came to be put to the NEC (in an emergency NEC 2 weeks after a scheduled NEC and with no consultation with branches).

Second, there is the union’s finances. I went into last year’s ADC undecided on the question of PCS transfer to Unite but, if anything, was edging towards the ‘yes’ camp. Central was the question of PCS’ finances. Despite protestations of an ‘industrial logic’ to the merger this logic remained aloof, here were two unions that organise in substantially different sectors. There were rumours of a PCS financial crisis and a pensions deficit running into the tens of millions. The view of my branch – which was more anti-merger than my own – was to oppose the merger unless the financial well-being off the Union required it. As it was, the financial report far from highlighting the financial pressures the union were under declared the financial position of the union was a relatively healthy one, even with the challenge of Check-Off factored into these calculations.

I think it is fair to say that there was considerable doubt among delegates that the union’s finances were as healthy as suggested but, since the financial report did not declare that a transfer was necessary for the financial security of PCS, I was mandated to vote against the NEC proposal to transfer to Unite, as did representatives for 109,326 union members.

Fast forward to December 2014 and check off had been abolished in the Home Office and notice given in the union’s largest sectors, HMRC and DWP. This was not a surprise and had been widely expected but it seems the crisis forced the hand of the union to declare the removal ‘an emergency’. In short the good financial health pretense was shown to be at best highly optimistic pedaled, I suspect, to facilitate a merger without showing the union to be in a position of weakness. That was a strategy that backfired.

Given the doubts so many had already had about the Union’s finances this finally brought us to a point where the union was being candid with its members about its financial position. In short, I believe it when they say the PCS, relaying the NEC decision, say decisions taken were to secure the ongoing financial viability of the Union, although, the question of whether that was a legitimate or necessary decision is, of course, a different issue.

Which brings me to my second reason: in the context of a financial crisis I think now is not the time for members who are rightly concerned for the union’s democratic well-being to pursue a legal challenge that will result in additional costs to the union when there is an alternative means by which the decision can be challenged. In 2002 a legal challenge was the only option open to challenge the decision, in 2015 the NEC has given the opportunity for the decision to be overturned by Conference. True, this will not be in time to meet constitutional requirements but it will still allow elections in the relatively soon period thereafter.

I currently sit on a Group Executive Committee with my term ending in May 2015 and intended to stand again. I am therefore ‘a beneficiary’ of the NEC’s decision; but I was given no notice or input into that decision. I was elected by members to serve for one year and yet by an executive decision into which member’s have had no input have had my term extended. I am personally undecided what that means for me when my term expires this May and whether I will continue to serve beyond the timescale I was elected to serve for. Even if National elections were impossible owing to events (and national ballots are more difficult logistically and financially because of legal requirements) I do not understand why this could not have been openly debated in a scheduled NEC, branch’s consulted, alternative and cheaper methods of election organised for Group committees and a rules change on bi-annual elections proposed to ADC 2014 or ADC 2015 (if necessary i would have supported these).

As it is an executive has exempted itself from democratic accountability to its membership preferring to cast its fortunes to an activist base at conference.

And so, I will not be challenging the decision legally and I hope others choose not to do so as well but I will certainly be challenging members to think carefully about how branches should respond and will be proposing my branch votes against the NEC ratification decision.The reason is simple: our constitution tells us Conference instructs the NEC on union policy and the NEC implement it, the reciprocal is not true.