Last night University College London hosted a discussion on Brexit and the law, featuring Dr Tom Hickman and Professor Jeff King (co-authors with Nick Barber of the famous article 50 blogpost) together with Professor Piet Eeckhout, Dr Virginia Mantouvalou, Professor George Letsas and Dr Ronan McCrea.
I was far from convinced by some of the constitutional theorising last night about the illegitimacy of the EU referendum and the human rights arguments made against Brexit. Nor am I persuaded by Hickman and King’s argument on article 50. But it was fascinating to hear them defend their position, including against a provocative and maybe slightly bonkers point from me (at about 1 hour 21 minutes).
Joshua Rozenberg was in the chair. I must congratulate UCL not only on the event itself but on having so impressively livestreamed it on the web and published this video so quickly.
This is the question in the minds of practically everyone in the Labour party today, as Angela Eagle announces her leadership challenge following MPs’ recent overwhelming vote of no confidence in the leader. The future of Labour politics and, in the short term, of British politics as a whole may rest on this technical—and ultimately legal—question.
My answer is yes, he can lawfully be kept off the ballot paper that goes out to Labour members—even though the rules framework as it stands entitles him to take part in the contest. I’d better explain.
What Labour’s rule book says
The first thing we need to do is look at Labour’s rule book. Here’s a fully up-to-date, 2016 version. Click at the bottom left if you want to see it in full screen view.
The key provisions are in Chapter 4, Clause II; and we’re particularly interested in Clause II(2)(B), which deals with the nomination stage of the process. It says
i. In the case of a vacancy for leader or deputy leader, each nomination must be supported by 15 per cent of the combined Commons members of the PLP and members of the EPLP. Nominations not attaining this threshold shall be null and void.
ii. Where there is no vacancy, nominations may be sought by potential challengers each year prior to the annual session of Party conference. In this case any nomination must be supported by 20 per cent of the combined Commons members of the PLP and members of the EPLP. Nominations not attaining this threshold shall be null and void.
On the face of it, it seems clear that the rules make provision for two very different situations: first, where there’s a vacancy for the leadership and second, where there’s not. There’s quite often a vacancy for the Labour leadership, the last time being when Ed Miliband resigned. We are now, though, in the second situation because Jeremy Corbyn has very much not resigned. So the relevant provision is Clause II(2)(B)(ii). By the way, the convoluted and unsatisfactory nature of these rules will I think underline the point that legislation, drafted by professional legal drafters, is in comparison clear and concise.
In my view, Clause II(2)(B)(ii) can only be read as requiring that challengers are required to be nominated by 20% of MPs and MEPs, but that the incumbent leader being challenged does not.
Mark Henderson’s advice
This is also the conclusion reach by Mark Henderson of Doughty Street Chambers, whose advice you can read below (with the odd top or bottom of a page missed in photocopying).
If you’re seriously interested in this question you simply must read Mark Henderson’s advice, which deals with the question of interpretation of these rules in much more depth than I am able to here. His advice is very thorough and well reasoned, looking in detail at the approach the courts are likely to take to a contract such as this—and the rule book is indeed in law a contract between the members of an unincorporated association called the Labour party. I agree with Mark Henderson.
I’ll now turn to some of the arguments people are making in opposition to my view and Mark Henderson’s.
It’s quite true that the rules are badly drafted and include some apparent inconsistencies. For instance, clause II(B)(v) says
v. Valid nominations shall be printed in the final agenda for Party conference, together with the names of the nominating organisations and Commons members of the PLP supporting the nominations
which some people will contend means that all the candidates including the incumbent must be “nominees” meeting the 20% threshold—otherwise the incumbent’s name would not be printed in the conference agenda. And clause II(C)(x) which says
x. The votes cast for each nominee shall be recorded and published in a form to be determined by the NEC as soon as possible following any election
can also be argued to suggest that all the candidates must be nominees, otherwise no one could vote for the incumbent.
But there are problems with these arguments. As far as clause II(C)(x) is concerned, the word “nominee” is used only once in clause II(C), while the word “candidate” is used three times. “Nominee” can only be a drafting error when “candidate” was intended.
By the way, we know there are simple drafting boo-boos since clause II(B)(v) still refers only to “Commons members of the PLP” rather than reflecting the change to include MEPs. I don’t think anyone would seriously try to argue that this means only MPs’ nominations count towards the threshold, in spite of the clear wording of clause II(2)(B)(ii).
More importantly—and this deals with both clause II(B)(v) and clause II(C)(x)—there is no reason to think the incumbent is not and will not be a “nominee” even without having to reach the 20% threshold. It is only potential challengers who have to reach the 20% threshold under clause II(2)(B)(ii).
Other arguments that Corbyn must meet some threshold
I’ve heard three arguments in favour of a reading requiring Corbyn to reach some “nomination threshold” of either 15% or 20%. I want to quickly deal with them before turning to what I think the actual solution is.
The “Kinnock precedent”
The last time anyone challenged an incumbent leader when there was no vacancy was in 1988, when Tony Benn challenged Neil Kinnock, a futile challenge most in the Labour party thought an unwelcome irritant that the rules should never have been permitted. Some say that, because Kinnock needed nominations then, that’s a significant “precedent”, and that we must therefore read the rules now as requiring Corbyn, too, to reach a certain threshold.
The big difficulty with this argument is that 1988 has no precedent value whatever given that the rules have been changed since then. In 1988, the rules made no distinction between the “vacancy” and “no vacancy” situations, and the changes made since have clearly all been intended to make challenging an incumbent much harder. That’s not just the increase of the threshold to 20% (it was just 5% when Tony Benn challenged) but the insertion of the words “by potential challengers” in 2010. To use 1988 as a “precedent” is like trying to argue that MPs alone should take vote in the leadership election because that was what happened when Michael Foot won in 1980. It just doesn’t work.
The “vacancy argument”
Some have argued that in the current situation there is actually a vacancy, either because of the no-confidence vote or because the mere fact of a challenge creates a vacancy. Neither argument works.
If the mere fact of a challenge in itself created a vacancy, then you’d have the bizarre situation where Angela Eagle began needing 20% but then suddenly needed only 15% instead, under clause II(2)(B)(i), either the moment she announced her challenge or when she’d already got 20%. There would never be a “no vacancy” situation and clauseII(2)(B)(ii) would have no meaning. This is obviously wrong.
Nor does the no-confidence vote in itself create a vacancy. Clause II(2)(E)(v) explains what’s meant by a vacancy situation:
E. Procedure in a vacancy …
iv. When the Party is in opposition and the Party leader, for whatever reason, becomes permanently unavailable, the deputy leader shall automatically become Party leader on a pro-tem basis. The NEC shall decide whether to hold an immediate ballot as provided under E above or to elect a new leader at the next annual session of Party conference.
Jeremy Corbyn may be out to a vegetarian lunch but he’s not “permanently unavailable” and Tom Watson is not acting leader. We must conclude that there is no vacancy.
David Allen Green’s “timing only” argument
The most ingenious and best argument I’ve read against my view is (perhaps unsurprisingly) from David Allen Green:
@carlgardner Thought: first sentence of 2Bii goes only to timing fro challengers. Second sentence applies each candidate, including leader.
Where there is no vacancy, nominations may be sought by potential challengers each year prior to the annual session of Party conference
In this case any nomination must be supported by 20 per cent
as doing different things, the first only imposing a nomination time limit on potential challengers while the second applies to all nominations “in this case” of no vacancy.
It’s a clever argument but I don’t think it works. Why would a time limit be imposed only on potential challengers but not on the incumbent, if he needs a certain number of nominations too? If that were right, what would trigger the incumbent’s need to reach the threshold? A potential challenger reaching it first? In that case, the incumbent might have no time to gather nominations, or might have to do so at the drop of a hat. The mere announcement of a challenge? In that case, if neither a challenger nor the incumbent achieved the threshold, Labour would have no leader. I don’t think this reading of the rules is sustainable, and Mark Henderson takes a similar view.
David has set out his thoughts here. I disagree with his reading of the rules but I agree with him on three key points: that the rules are badly drafted; that it’s open to the NEC to fill any gaps; and that any challenge by Corbyn to a well-drafted and thought-through decision by the NEC to insist on equal requirements for all candidates is unlikely to succeed. The courts will indeed be slow to intervene—but only if the NEC’s own solution does not contradict the written rules.
How to ensure that Corbyn too must obtain nominations
I can now finally turn to how the NEC can solve this. One possible option is for the interpretative question to be referred to the NEC for a conclusive ruling; but the better route is for the NEC to actually vary the rules for the contest.
A conclusive ruling from the NEC
Chapter 1 clause X(5) of the rule book provides as follows:
5. For the avoidance of any doubt, any dispute as to the meaning, interpretation or general application of the constitution, standing orders and rules of the Party or any unit of the Party shall be referred to the NEC for determination, and the decision of the NEC thereupon shall be final and conclusive for all purposes. The decision of the NEC subject to any modification by Party conference as to the meaning and effect of any rule or any part of this constitution and rules shall be final.
One option, then, is for this dispute about the meaning of the rules somehow to be referred to the NEC, which could then decide that Corbyn needs to reach the 20% threshold. On the face of it, that decision would be the end of it, since the rules say it’d be “final and conclusive”. But two things worry me about this option.
First, what constitutes a “dispute”, and who has the power to refer? I’m not sure an argument on the internet or between two members in a pub is enough. Would some constituent part of the party (a constituency Labour party, say, or an affiliated trade union) need to be in dispute with another? Chapter 1 clause VIII(4) may suggest so. And who makes the referral decision? Can either refer unilaterally? This is important because if the referral were procedurally flawed, the subsequent decision might be ruled invalid by a court, and so not “final and conclusive” at all.
Even if the procedure is impeccable, if a court held that the NEC’s ruling was a perverse one, interpreting the rules unreasonably and contrary to their true meaning, it might well decide it was not a proper “decision” at all, and so, again, not “final and conclusive”. Public lawyers will immediately recognise this as Anisminic-style reasoning. I think variation is the safer, more sustainable option.
An NEC variation of the rules
The rules about leadership elections are all contained in Chapter 4, clause II, which begins in the following way:
Procedural rules for elections for national officers of the Party
A. The following procedures provide a rules framework which, unless varied by the consent of the NEC, shall be followed when conducting elections for Party officers.
It’s clear from this that the current rules as laid down in clause II do not automatically apply. They need not be followed if the NEC agrees to vary them. This, in my view, is how the NEC can best resolve things.
The NEC might say that the Labour party finds itself in an unprecedented situation following the overwhelming vote of no confidence in the leader. The rules make no provision for this situation, there is dispute about how the rules should apply and the NEC thinks them unsatisfactory for the purpose. There’s a danger that the procedures could become mired in court proceedings, something no member would want. Therefore, the NEC could say that it’s decided to vary the rules to ensure a fair, transparent, reasonable procedure that is secure from challenge.
The NEC could vary the procedure however it liked, so long as it was reasonable. The big question (assuming it wanted to require the no-confidenced incumbent to seek nominations) is whether the NEC would think it reasonable to treat the post-no confidence situation as akin to a vacancy; or whether it’d see the current situation as more like a “no vacancy” challenge.
If the NEC decided it was right to treat this situation like a vacancy, it might require Corbyn (or all nominees) to obtain a 15% nomination threshold—by my reckoning, 38 MPs and MEPs out of the 230 current Labour MPs and 20 MEPs. This would enable the NEC to say it had retained either the lower threshold for the incumbent leader or even a lower threshold for him as compared with challengers. It is of course more likely that Jeremy Corbyn would obtain 38 nominations than any higher number.
Alternatively, the NEC might decide the no-confidence vote means this is a special, unforeseen and unprovided for variant of a “no vacancy” situation, and that the leader and his challengers should be treated equally. That would require both them and him to reach a 20% nomination threshold—by my reckoning, 50 MPs and MEPs. It’d be harder for Jeremy Corbyn to satisfy this.
True, this route does involve the question of who can seek the NECs “consent” to the variation. It isn’t 100% procedurally safe. But there’s no more procedural risk than’s involved in a referral for an NEC decision, and variation is legally safer. Anisminic reasoning can’t touch it because a variation would not be predicated on an unreasonable or questionable interpretation of the rule book.
I don’t think Labour’s existing rules framework can reasonably be read so as to exclude Jeremy Corbyn from the coming leadership ballot of members. I agree with Mark Henderson. There is a real danger that trying to do so based on the existing rules framework set out in Chapter 4 clause II could be successfully challenged in court.
But the rule book gives the NEC power to vary that rules framework, and it would in my view be reasonable for it to do so in this unforeseen, unprovided for and disputed situation. If it does vary the rules to require the no-confidence incumbent to reach the same nomination threshold as his challengers, I doubt the courts would intervene.
If you’ve been following closely news about Britain’s EU referendum and its aftermath, you’ll probably have heard of article 50 of the Treaty on European Union which makes provision for a member state to leave the EU and lays down and extendable two-year period for a withdrawal agreement.
THE TEXT OF ARTICLE 50
Here it is:
1. Any Member State may decide to withdraw from the Union in accordance with its own constitutional requirements.
2. A Member State which decides to withdraw shall notify the European Council of its intention. In the light of the guidelines provided by the European Council, the Union shall negotiate and conclude an agreement with that State, setting out the arrangements for its withdrawal, taking account of the framework for its future relationship with the Union. That agreement shall be negotiated in accordance with Article 218(3) of the Treaty on the Functioning of the European Union. It shall be concluded on behalf of the Union by the Council, acting by a qualified majority, after obtaining the consent of the European Parliament.
3. The Treaties shall cease to apply to the State in question from the date of entry into force of the withdrawal agreement or, failing that, two years after the notification referred to in paragraph 2, unless the European Council, in agreement with the Member State concerned, unanimously decides to extend this period.
4. For the purposes of paragraphs 2 and 3, the member of the European Council or of the Council representing the withdrawing Member State shall not participate in the discussions of the European Council or Council or in decisions concerning it.
A qualified majority shall be defined in accordance with Article 238(3)(b) of the Treaty on the Functioning of the European Union.
5. If a State which has withdrawn from the Union asks to rejoin, its request shall be subject to the procedure referred to in Article 49.
There’s some debate going on between lawyers and in the media on various legal questions about the article 50 process. Is the government legally obliged to “trigger” article 50? Can it legally do so without a Parliamentary vote? Can the EU take the view that the referendum itself “triggered” article 50? Can article 50 be circumvented, and the UK leave by some other legal means? Can the EU throw us out? Can the UK decide unilaterally when article 50 is “triggered”, if it ever is? I’ll tackle all these questions.
MUST THE UK TRIGGER ARTICLE 50?
The EU Referendum Act 2015 creates no legal obligation on Her Majesty’s Government to leave the EU now, or ever. In a legal sense, the Act was binding in the sense that ministers had a duty to hold it; but the referendum is not binding in the sense that they must do anything about its result. The force of the result is political. It follows that the UK can “trigger” it if and when it likes.
HOW IS ARTICLE 50 TRIGGERED?
David Allen Green has written about what might in domestic constitutional terms represent a “decision to withdraw” from the EU. It seems to me that the really key step under article 50 is the notification that would (I agree with David on this) be made by some sort of formal communication from the UK government to the European Council, probably a letter from the UK’s Permanent Representative in Brussels to the European Council President, Donald Tusk. In my view the European Council must wait for this step. It cannot “look inside” British constitutional law and decide for itself when the UK has decided to withdraw. All it can properly do is recognise when a step is taken in EU law—that is, the article 50.2 notification if it ever comes.
It is worth noting, though, that the UK could be thrown out of the EU by the other member states under article 60.2 of the Vienna Convention if it was guilty of a “material breach” of its treaty obligations—which, it’s important to realise, will apply after article 50 notification right up to the moment the UK actually withdraws. The relevant parts of article 60(2) and (3) read:
2. A material breach of a multilateral treaty by one of the parties entitles:
(a) The other parties by unanimous agreement to suspend the operation of the treaty in whole or in part or to terminate it either:
(i) In the relations between themselves and the defaulting State, or
(ii) As between all the parties; …
3. A material breach of a treaty, for the purposes of this article, consists in:
(a) A repudiation of the treaty not sanctioned by the present Convention; or
(b) The violation of a provision essential to the accomplishment of the object or purpose of the treaty.
The European Union Law (Emergency Provisions) Bill promised by Vote Leave even before the UK negotiated its withdrawal might well constitute a material breach, given that it’d mean refusing to recognise the jurisdiction of the European Court of Justice. Being thrown out wouldn’t be very attractive, as it’d mean there’d be no agreement for instance about the protection of the rights of British companies and citizens elsewhere in the EU.
MUST PARLIAMENT APPROVE OF NOTIFICATION?
In terms of domestic constitutional law, the government may choose to ask Parliament to vote in favour of article 50 notification—but there is no legal or constitutional requirement on it to do so. Notification would be (in domestic law terms) be done under prerogative powers in relation to international affairs, rather than any statutory authority. The government can just go ahead and do it.
The European Communities Act 1972 (which imports EU law into our domestic legal system) would continue to apply unamended after article 50 notification, which would not therefore alter common law, or statute, or “the customs of the realm”. Nor would it create any criminal offence. The Case of Proclamations simply isn’t relevant.
Nor is the FBU case a precedent here. In that case, an Act of Parliament had laid down a detailed statutory scheme of compensation (as it happens, for people injured as a result of criminal offences; but that detail’s not important for our purpose). Parliament gave a government minister discretion about when to bring those provisions into force. The House of Lords ruled that this didn’t give the minister a legal duty to bring the provisions in; but it did mean he could not use prerogative powers to introduce a wholly different scheme instead of the one Parliament had laid down. The existence of the discretion granted by Parliament meant the prerogative was limited or ousted to that extent.
The situation as regards the European Communities Act 1972 and article 50 notification is very different to the situation in the FBU case, however. The ECA 1972 does not confer on ministers any similar kind of discretion to bring or maintain its own provisions in force, so there is no FBU-style statutory limitation on or “ouster” of the prerogative power to notify.
Nor would notification render the 1972 Act a “dead letter” or render it “nugatory”, as Barber, Hickman and King argue. On the contrary, it would remain fully in force until repealed by Parliament. It’s not even obvious that it’d be repealed on Britain’s eventual withdrawal since, at least according to what Boris Johnson has recently written, Britain might end up abiding by elements of the Agreement on the European Economic Area—which is one of the treaties having effects in our law under the 1972 Act. It’s simply not right to see article 50 notification as negating the 1972 Act, or as hindered by it.
What the House of Commons can do, if it doesn’t like government policy on article 50, is pass a motion of no confidence in the government which (depending on its precise terms) might force the government to resign or else bring about a general election, under the Fixed-term Parliaments Act 2011. Now may be the time to remind you that I wrote an e-book about that Act, which may be tested during the current crisis.
It’s up to the British government alone whether and when to “trigger” article 50. It may ask for Parliament’s approval, but isn’t legally required to. What Parliament can do is force the government to resign or force an election.
It’s not realistic to try to leave the EU in any other way—all we could do to circumvent article 50 would be to get ourselves thrown out without any agreement. And Britain can’t dictate the article 50 timetable. It can delay notification under article 50; but the EU can simply refuse to negotiate with Britain until notification.
Here are the draft regulations that will (if approved by resolutions of both Houses of Parliament this morning) extend the voter registration deadline for the EU referendum. Thanks to Rich Greenhill for alerting me to their being online. Click on the bottom left of the viewer to see the draft in fullscreen view—you’ll find some detailed technical comments from me.
As I suggested yesterday the draft regulations amend Schedule 1 para. 4 of the “Conduct Regulations” with the effect of delaying the registration deadline. How they do the trick is not quite obvious on the face of it—nowhere do you see a reference to the 9th of June—because of the (I think unnecessarily) complicated way electoral legislation works. But they modify the application to the referendum of sections 13AB (I missed this in my hurried post yesterday) and 13B of the Representation of the People Act 1983 so that where the 1983 Act mentions “the appropriate publication date” (of the electoral register, that is) and “the fifth day before the date of the poll” it means “20 June 2016”. It’s a complex business (as I tried to explain yesterday) but this does indeed have the effect of extending the deadline by two days. The 20 June is (counting back from the 23rd) the third day before the date of the poll, so you can see how the draft allows registration officers two more days to complete their tasks.
Two technical legal points are worth making. First, the amendment if and when made will be the law as from the beginning of today (because regulations take effect at the start of the day they come into force) but * ** is not drafted retrospectively so as to change the law as from the beginning of 8 June. That means government lawyers are not concerned (as I was) about leaving any arguable “gap” during which some applications for registration were in a legal sense “out of time”. They must be of the view that shoving back the deadline makes all recent applications now in time, regardless of what the legal position was on 8 June. On reflection I think they’re right; while the loose end would have been automatically tied had this amendment been made yesterday, it’s not legally risky enough to be worth tying up today by something obviously retrospective.
That leads me to the legal challenge that apparently Arron Banks is considering, apparently on the basis that the draft is “unprecedented” and “unconstitutional”. It’s a very weak legal argument.
He’s relying on a misunderstanding of the legal concept of precedent, which does not mean (as many non lawyers think) that something’s lawful if it’s been done before, and unlawful if hasn’t. The doctrine of precedent is purely about the extent to which a legal ruling in a court case in the past governs what a court must do today. So the fact that extending the deadline mid-campaign may be “unprecedented” is legally irrelevant. As for the claim that it’s “unconstitutional”, well, we have no higher constitutional law. This is not a legal argument either.
Banks may be getting at an argument that section 4(1) of the EU (Referendum) Act 2015 can’t be interpreted as permitting mid-campaign changes. But nothing in the wording of section 4 implies a “no mid-campaign changes” rule, and as we’ve seen, there is a clear power to amend. Banks must ask judges to read his limitation in. I find it very hard to imagine judges interpreting the legislation as though Parliament in 2015 thought “Ministers must have wide power to adapt electoral law to the referendum” but that “If a problem with a government website arises mid-campaign that could stop people voting, ministers’ otherwise wide power does not extend to solving the problem”. I think it’s a hopeless argument, and I expect soon to hear no more of this legal challenge.
*On reflection, I’ve realised the regulation will not be in effect as from the start of today. That’s because they’re said (in regulation 1) to come into force when they are made, which does not specify a day, and so does not attract the rule, under section 4 of the Interpretation Act 1978, (read with section 23(1)) that regulations take legal effect at the beginning of the day on which they come into force. We won’t know what time the amendment is actually signed (and therefore made) by a minister; but won’t be able to apply the “start of the day” rule. Oddly, therefore, it won’t be quite clear how the amendment applies in time. I doubt this matters for any practical purpose, though.
**But Rich Greenhill points out to me that some instruments do actually tell us what time they were made and came into force. Maybe this will be one of them. You learn something every day!
In response to the overloading of the website where people could register to vote in the coming EU referendum, government is apparently considering how it can extend the deadline (which expired at midnight) by a day: Mr Cameron said people should continue to register on Wednesday, saying the government was working urgently with the commission […]
Lords Pannick and Lester have form for writing together on human rights, and today Pannick writes on the subject in the Times, while Lester comments in The Brief. Pannick makes fun of the long delay in producing its “Bill of Rights”: the Chilcot inquiry into the Iraq War, and the assessment of the case for a […]
Today the House of Lords EU committee has published its report on “The UK, the EU and a British Bill of Rights”. It’s quite a wide-ranging report covering for example the respective scope of the ECHR and the EU Charter of fundamental rights, the enforcement of each in national law, and the impact of any […]
MPs are due today to debate the principle of Richard Bacon MP’s No-fault Divorce Bill. What’s interesting about this bill is how very unradical it is. When we talk about “no fault divorce” most of us mean taking any notion of fault out of the divorce process altogether so that when you decide you want […]
Does the smoking ban in public places apply to prisons? No, the Court of Appeal has said, in a judgment today. The ruling doesn’t lay down any “groundbreaking” precedent (it has no wider legal effect beyond determining that the smoking ban doesn’t apply) but is a fascinating reminder of an old-school principle of constitutional law, […]
Since I wrote about David Cameron’s “sovereignty plan”, it seems to have been forgotten. It’s clear the idea was aimed at keeping politicians in the Remain camp, and has failed. @carlgardner I understand it is an utter mess, and that it is hoped we all forget it ever happened.#journalism — David Allen Green (@DavidAllenGreen) February […]
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