Can Jeremy Corbyn be kept off Labour’s leadership ballot?

by Carl Gardner on July 11, 2016

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

B. Nomination

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.

Inconsistent drafting

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:

This approach reads the two sentences

Where there is no vacancy, nominations may be sought by potential challengers each year prior to the annual session of Party conference

and

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:

Clause II.
Procedural rules for elections for national officers of the Party

1. General
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.

Conclusion

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.

{ 58 comments… read them below or add one }

1 Phil July 11, 2016 at 12:55

My own take – written before reading Henderson’s advice but concurring with it, albeit on slightly different grounds – is here. Obviously we’re on different sides wrt this one, but I think your statement of the problem for Corbyn’s opponents is correct, and your solution is interesting & may be viable.

2 Pete July 11, 2016 at 13:50

Really interesting post.

I suspect many would disagree that the current situation is unprovided for. The existing rules work in this case, unless the aim is explicitly to disenfranchise the membership. I’m not sure the rules as a whole support a variation with that aim.

3 Peter Russell July 11, 2016 at 13:56

Motivation for NEC variation of rules would appear to be justified by NEC wishing to honour the Party’s unanimous decision to endorse Collins Report. This included specific description of requirement of Leader to command “substantial support” in the PLP. No confidence vote is clearly evidence that Corbyn does not have that support – unless 20% is “substantial.”

4 Carl Gardner July 11, 2016 at 15:28

Phil,

Thanks for linking to your interesting post on this.

5 Carl Gardner July 11, 2016 at 15:29

Pete,

Thanks. Fair enough! People are bound to disagree about this.

6 Carl Gardner July 11, 2016 at 15:31

Peter,

Good point. You might say what went wrong in the first place was the “moronic” decision to give Corbyn enough nominations last time in spite of his clearly not having substantial support in the PLP.

7 A Layman July 11, 2016 at 16:50

It is truly incredible, the number of words my lawyer friends use to deal with simple propositions. Do they do it to promote one another in business, I wonder?

The PLP, of course, includes a number of lawyers in good standing.

8 Russell July 11, 2016 at 20:54

Thanks Carl

I found your post, Phil’s post and Mark Henderson’s all very interesting in different ways.

It seems to me that the rules are so unclear that it would be sensible for the NEC to use variation regardless of whether they decide Corbyn needs MP support, in order to stop a legal challenge from either side.

For what little its worth, my reading of 2Bii is similar to David Allen Green’s that the two sentences have different purposes, However like Phil I think the first sentence is primarily about the burden of who has to seek nominations- by stating that there is no obligation to try to find nominations. The second sentence would then seem to apply to ‘all nominations “in this case” of no vacancy’. If the second sentence only narrowly applies to/is triggered by nominations “sought by challengers” then what happens if a challenger is nominated by Young Labour under 2Biii without the challenger’s knowledge or initial consent?

Mark Henderson’s advice seems to be mostly built on the premise that zero nominations equals no leader. If you instead assume that zero nominations equals no election and therefore no change in leader, then many of his arguments about absurd results appear to fall away. Mark Henderson states that when there is no challenge there has never been any formal re-election of the incumbent or even an acknowledgement that the incumbent has won unopposed. To me that implies that there has not been any election at most conferences, not that there has been an implied election that nobody knew about or acknowledged. 2Di is odd but by referring to “the” election rather than “an” election (as in 2Dii and 2Diii) I can just about read it a reference to ‘the election triggered that exists by virtue of nominations discussed above’, rather than read as it being a mandatory demand to always have “an election”.

Briefly I also A/ struggle to follow his reasoning as to why it would be fair to apply 2Bvi to a new candidate with overwhelming support but not to an incumbent and B/ think that his reasoning in 60 might wrongly suggests that the conservatives’ rules on an vote of no confidence from MPs are untenable for leaders who went into the members ballot as the underdog (though admittedly IDS didn’t last long).

9 Judge July 11, 2016 at 20:56

The whole point of having a threshold of support is because nobody can do the job of leader without support from the PLP. If Jeremy is allowed on the ballot paper without that support, we are left with the same problem. If he wins the title of Leader of the Labour Party, he still won’t be able to actually lead the party.

10 Robert Simon July 11, 2016 at 21:31

I think the letter of the rule book is that Corbyn doesn’t need the nominations to stand in the contest. However the concept of a leader of a group who enjoys less than 20% confidence in that group is patently absurd, and I think the rule book acknowledges this implicitly. It sounds like when they wrote the rule book, they didn’t imagine the present situation.

11 Matthew July 12, 2016 at 04:40

Brilliantly argued, as is the Doughty Street Opinion. I question your variation solution though, because this clause is as badly drafted as the rest. In stating that: “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” they make no specific provision or ’empowerment’ for rules that have been varied by the NEC, and (as the mechanism for variation ‘by consent’ is also unspecified) isn’t it arguable this variation provision is itself void for uncertainty.

12 Matthew July 12, 2016 at 08:52

One other thought, on nominations to a challenge where there’s no vacancy, as the later rules for voting refer only to nominees as a simile for candidates, that might apply here and the reference to “any nominations” in the second sentence could quite easily be read as a reference to all candidates in the case of a challenge to an incumbent. “In this case” just refers to the higher threshold in the case of a challenge, but doesn’t selectively apply it to those challengers, but rather uses a different term, “any nomination” i.e. all candidates. That isn’t a nonsense I don’t think, worryingly?

13 RodCrosby July 12, 2016 at 08:58

A nice argument. However, it might hinge on what is meant by “consent” to waive the rules. It probably implies…
https://en.wikipedia.org/wiki/Unanimous_consent

which appears unlikely to be forthcoming.

14 An Architect July 12, 2016 at 09:31

All your comments about the NEC, in Chapter 1 clause X(5) miss the second part of the clause, ‘subject to any modification by the party conference’, who gets to vote then, what if they dont agree with the NEC, can a party conference be called quickly to ratify or dismiss any decision by the NEC?

15 Andrew Sharpe July 12, 2016 at 09:51

I agree with Mark Henderson’s view (at paragraph 56 of his opinion) that Ch 4 Cl II 2 B ii – how are we supposed to refer to the Rules’ clauses?! – can only refer to potential challengers.

So whilst I agree that the NEC can use its dispute resolution powers, and Cl II 1 A power to issue procedural guidelines, Judge’s comment above hits the nail on the head. NEC may be able to sort out the election of the leader, but clearly neither the NEC nor the Rules can provide any answer to the impasse between a PLP that has no confidence in an incumbent leader and a membership that may well re-elect that leader, by looking only at the election procedure.

That wider gap in the Rules (lacuna) could only be addressed by the NEC carefully considering whether a threshold should be introduced for the incumbent, but perhaps this could only contemplated by them if, after a re-election, the PLP confirms by a second vote of no confidence that it cannot work with the members’ choice. Then we shall all be examining Ch 1 Cl I?

16 Brian Warshaw July 12, 2016 at 10:36

In only one instant does the Rule Book 2016 use the word ‘no-confidence’, and that is: J. Procedural motions
i. A motion of ‘next business’ shall not be taken
until the mover and seconder of a motion
have been heard. Any motion ‘of next
business’, ‘that the vote be taken’, ‘to
adjourn’, ‘of no-confidence in the chair’ shall
be moved, seconded and put to the vote
without discussion; after such a vote the
chair need not accept a further procedural
motion for a period of 20 minutes.

So there is a precedent for the term; but is limited in its use. Does ther term ‘no-confidence’ exist in the SO of the PLP?

17 stemfr July 12, 2016 at 10:57

I enjoyed reading the article and the comments a great deal. I am a legal layman, but I have a question. Does the spirit of the rule (it’s intention before its poor drafting) not need to be considered?

Presumably the 20% threshold was designed for two reasons: 1) that the leader is not subject to frivolous challenge, and 2) that the leader must command at least 20% support of the PLP to be able to form a cabinet or shadow cabinet. When the rule was drafted, they almost certainly did not envisage the circumstances the party is currently in, i.e. a leader with commanding support of the membership but with no confidence from the PLP; but surely the second point is still relevant and it would be absurd to ignore it?

The NEC then need to consider two things: 1) the constitutional duty to provide a coherent opposition (and my understanding is if JC runs, wins, and the PLP again votes no-confidence, then the PLP can vote in a Leader of the Opposition who is not the leader of the party), and 2) the ‘quality’ and opportunism of the membership of the party that surely now consists of entryists whose only agenda is to affect the outcome of a vote, and can be traced back to Milliband resigning and a recognition of the ease of joining the party and affecting it’s direction.

18 Brian Barder July 12, 2016 at 12:33

I disagree with the formulation of the problem as whether the incumbent leader should be excluded from the ballot in the election to the party leadership. No-one, to my knowledge, is proposing that Corbyn should be prevented from standing. The question is much simpler: does the 20% threshold requirement apply to Corbyn as the incumbent as it does to his challenger[s], or not? In my view the commonsense interpretation of the two key sentences is that “any” means “any”, i.e. all the candidates including the incumbent are required to satisfy the threshold stipulated and that the candidacy of any who does not is “null and void”; that if the rules had meant to exempt the incumbent from the threshold requirement, they would have said so, since such an exemption would represent a new and highly controversial addition to the party’s constitution; and that any remaining doubt is removed by considering the fundamental purpose of having any threshold at all, regardless of the percentage applicable in different circumstances: namely, to ensure that *any* candidate offered to the membership for election as leader has a certain minimum level of support in the PLP. This purpose would by definition be defeated if an incumbent leader lacking the minimum PLP support required by the rules were nevertheless allowed to stand for election. All the rest of the legal argument seems to me, with all due respect to the lawyers (but no more than that!), beside the point.
(Has anyone pointed out that if Corbyn can muster 15% support from the PLP but not 20%, all he needs to do is resign his leadership and immediately stand for election to fill the vacancy?)
I hope the NEC will have the sense to confirm that there is no question of excluding the incumbent from the ballot paper but that for the avoidance of doubt, the threshold rule applies to the incumbent as it does to anyone else standing for election, and that any other interpretation would defeat the objective of having a threshold at all.

19 Anonymous July 12, 2016 at 12:51

Brian. I am not a lawyer and apologies if you are, but ‘the man on the London omnibus’ isn’t going to see Jeremy Corbyn as a candidate. The measure is there to ‘test’ the backing of challengers not the incumbent. How can you test the incumbent without including them. That’s just a coup.

20 Matthew July 12, 2016 at 13:02

There’s a few have made the “any” point here, but this is wonderful! “(Has anyone pointed out that if Corbyn can muster 15% support from the PLP but not 20%, all he needs to do is resign his leadership and immediately stand for election to fill the vacancy?)”. Ironically, however, ilalthough it might have been true last week, it is not how that the “no vacancy” regime has been triggered. Hilarious!

21 Matthew July 12, 2016 at 13:08

It’s all getting a bit hilarious. Jez starts as an incumbent, receives a challenge and becomes a candidate (an incumbent can be a candidate – see American Presidential 2nd terms), and needs 20% to nominate, however can’t get it and gets excluded from the ballot, and immediately resigns, creating a vacancy and a 15% threshold which he can jump, and round and round we go.

22 The Author July 12, 2016 at 13:09

Saloon bar law I’m afraid. The ‘variation’ argument is simply wrong. As Lord Denning was apt to say, ‘One has to look at the reason of the thing’. The ‘reason of the thing’ is far more important than the minutiae of badly written and contradictory rules. And, the reason of the thing is as follows: Corbyn is the leader of the Labour party, and whilst he remains in that position, any election can only stem from a challenge to his leadership.

The NEC may have the authority to vary the procedures of an election, but it does not have the authority to rule that the properly elected leader is not the leader.

It follows that the NEC can neither deem Corbyn to be a challenger for a post that he properly holds, nor can it treat him as if he is. To hold that it has the authority to do such things is the fallacy on which the ‘variation’ solution ultimately fails.

23 Matthew July 12, 2016 at 13:24

You in turn are part wrong and part right (oh isn’t this getting fun!).

1. I think you’re right the variation argument will fail, but that will be because the undefined “consent” provision will work out to be either unworkable or unachievable.

2. You are wrong to say that because Jezza cannot challenge himself he cannot be a nominee (i.e. a candidate) as part of a challenge to himself. As he points out, in fact. And irrespective of thresholds.

I think?

We will hear very soon which way they have decided to take this, after which I expect the Courts will tell us all what it means.

24 Matthew July 12, 2016 at 13:28

Sorry, the Author, just to explain my 2. It has to be that Jez can be a candidate, otherwise the “no vacancy” challenge would instantly create a vacancy, which is either absurd, or would immediately transform the challenge into a “vacancy” one with a 15% threshold.

25 Christopher Whitmey July 12, 2016 at 16:07

Like Anonymous at 19 above I’m not a lawyer. Also I’ve never voted Labour. But as a democrat I think Corbyn must be on the ballot paper.
Ground 1. The Rule book
ii. Where there is no vacancy, nominations may be sought by potential challengers … 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.

Potential challengers must seek nominations.
Corbyn is not a challenger: he is the incumbent.
Corbyn does not need to seek a nomination.

Ground 2. Fairness to and/or legitimate expectations of Labour members when there is a challenge.

Labour members have a right to take part in all elections for the leader.
In a leader vacancy they elected the incumbent leader.
The incumbent leader is not on the ballot paper on a leadership challenge.
The Labour MPs have frustrated the rights of Labour members to continue to support the incumbent leader they elected.

Q.E.D.? Over to the lawyers !

26 Al July 12, 2016 at 16:10

Thank you to the author for the materials and the considered commentary.

There are several unsubstantiated assertions in both Mark Henderson’s advice and the author’s additional commentary. Perhaps the most glaring and salient are:

– Paragraph 53, where Mark Henderson asserts that the purpose of a challenge scenario requiring a 20% nomination threshold (rather than the 15% required in a vacancy scenario) is to make it more difficult for someone to challenge the incumbent. An alternative and (I would suggest) no-less-valid interpretation is that the purpose of having a higher threshold is to make it harder to HAVE CHALLENGES, not to make it harder to CHALLENGE THE INCUMBENT. There is an important difference: the alternative interpretation is about raising the bar for challenges in general, perhaps to avoid them happening too frequently / easily (like in Australian politics); Mark Henderson’s interpretation is about protecting the incumbent AS AN INDIVIDUAL from their challengers, an interpretation for which there is no support in the Rules, and which requires Mark Henderson’s advice to be essentially self-fulfilling.

This unsubstantiated assertion is a keystone in Mark Henderson’s analysis, in particular the conclusions he reaches in Paragraph 57 – the whole edifice suffers from this flaw.

– The author contends that the use of the word “nominee” in Chapter 4, Clause II(2)(C)(x) must be a drafting error because the word “candidate” is preferred elsewhere in that clause. Again, there is an equally valid alternative interpretation, which is that the draftsperson intended “nominee” and “candidate” to be interchangeable terms – which, if true, would present real problems for anyone suggesting that the incumbent can be a candidate without also being a nomine for the purposes of Clause II(2)(B)(ii).

I don’t suggest that these apparent flaws in reasoning necessarily fatally undermine the overall position taken (although, if left unaddressed, they must surely substantially weaken it), but they do exemplify the facts that:
(i) there is a lack of rigour in the analysis; and
(ii) that lack of rigour legitimises allegations that both Mark Henderson and the author may have worked back from conclusions they wished to reach, rather than arriving at their conclusions through truly open-minded deliberation.

27 Brian Barder July 12, 2016 at 16:44

In reply to ‘Anonymous’, I would just suggest that the man on the Clapham omnibus (quite likely to be me, as a south Londoner) would be puzzled, seeing the names Eagle and Corbyn on the ballot paper in the leadership election, to be told that one of them is not a candidate.

28 Simon Carne July 12, 2016 at 18:03

Since the nomination rule is so contentious, I would look at how the ballot paper gets created. There must be a mechanism by which the person responsible for its creation is informed which names to include.

So, unless there is a rule specifying that the leader’s name is to be included, what mechanism is there for the leader’s name to be there other than by them being nominated.

Carl has dealt with the point that clause II(B)(v) should be interpreted as saying “candidates”, not “nominations”. But how do you get to be a candidate other than by being nominated?

29 Matt Berkley July 12, 2016 at 18:49

Carl,

Isn’t there a procedural fairness problem in varying the rules:

a) when it’s already clear who one challenger is

and/or

b) where the percentage required is already known to be not very different from the percentage supporting the incumbent,

so that the decision of the NEC to vary has a foreseeable, reasonable chance of deciding the result?

30 An Architect July 12, 2016 at 23:26

So Lawyers, what now, does Eagles team go to Law to stop him? or does she do a Leadsome and let Hilary Benn or someone else step in?

31 Matthew July 12, 2016 at 23:27

By being the qualifying precondition, Simon, to the whole “no vacancy” clause, i.e. the incumbent?

32 Colin July 13, 2016 at 07:26

Relieved to see this post, in the vacuum of common sense that is traditional media reporting of the Labour Party’s problem. I’m not a lawyer but the above is my immediate interpretation of the rules, or the intended meaning of the rules, even I can see them as badly drafted. This is all v. depressing when you would naturally be tempted to vote for somewhere (anywhere) to the left of the current admin. Can they run a country if they can’t write a rule book?

33 Simon Carne July 13, 2016 at 09:43

@Matthew: You are restating the argument for saying that the incumbent can be treated differently from the challengers. My challenge (in the comment above) is that, if the rules are to be read as separating out the incumbent from the rest, there needs to be a follow-up rule which says how the incumbent is to indicate to the creator of the ballot paper whether his/her name is to be included or not. The absence of that follow-up rule should (in my argument) be taken as indicating that the incumbent is NOT to be treated any differently from challengers.

34 Anonymous July 13, 2016 at 09:50

@Simon. OK I understand, but I don’t agree. If the incumbent is incumbent, he is automatically included, because there is no vacancy, and the ballotor (if there is such a thing) will automatically include him or her. The incumbent can avoid that only by resigning, immediately or prospectively, at which point it becomes a “vacancy” challenge and we go off to the other rule. So no one needs to tell the ballotor anything.

35 Simon Carne July 16, 2016 at 10:14

@Anonymous Consider this hypothetical. The incumbent’s position is that he/she has no intention of resigning, but doesn’t wish to fight another election. In other words, he/she wants to carry on, but if alternative candidate(s) come along with sufficient nominations, he/she will give way to the duly elected candidate.

Are you saying that, under this scenario, the incumbent MUST be placed on the ballot paper unless he/she resigns before the deadline for producing the ballot paper?

Given that the rules have a lower threshold for nominations if the incumbent resigns (15% rather than 20%), there is a very practical reason for not wanting to resign, even if the incumbent isn’t prepared to fight an election.

To sum up, my point is that, in the absence of a rule which addresses the position of the incumbent in an election, I am suggesting that the rules should be read as requiring the incumbent to go through the same nomination process as anyone else. [Obviosuly, that isn’t what the NEC has decided to do, but that’s another matter.]

36 A Layman July 16, 2016 at 10:22

Does this conversation suggest:
(a) that the rules were incompetently worded;
(b) that the rules were cynically worded to enable many interpretations?

37 Matthew July 16, 2016 at 10:52

@Simon, my feeling is that a judge would say your are being too inventive, reading too much extra into the rule, when the wording that is already there already reveals a perfectly acceptable version, which requires much less “reading in” – i.e. the dimple idea that in the “no vacancy” situation, the rules should not create a vacancy.

38 Simon Carne July 16, 2016 at 15:21

@Matthew I don’t think I am reading anything extra into the rule. Or being inventive. In fact, I am doing the exact opposite. I am posing the question: if the rule about nominations doesn’t cover the incumbent, where is the rule which tells the person running the election whether to include the incumbent or not?

It’s the people who say that the incumbent gets on the ballot paper automatically who are reading something “extra” into the rules.

I must also dispute your suggestion that my approach would create a vacancy in the no vacancy situation. It doesn’t. If candidates are validly nominated, the successful nominee is determined by an election. The incumbent continues in office until a new leader is determined by the rules – and that applies equally whether the incumbent is on the ballot and loses or not on the ballot at all.

39 Simon Carne July 16, 2016 at 15:23

The italics in my comment above (#38) were not intended.

40 Matthew July 16, 2016 at 15:34

@Simon. OK well there we are Simon, I think we have set out both sides of the argument. I think the “automatic” is enough. You don’t.

41 Brian Barder July 16, 2016 at 15:38

I entirely agree. Either you read the rules as you suggest or you read them as exemptimg the incumbent from the plain requirement to have a minimum of support in the parliamentary party. No such exemption is even hinted at in the rules and claiming that it’s somehow implied does far more violence to the text than seeing in them a requirement that applies to anyone seeking election, including the incumbent.

42 Matthew July 16, 2016 at 15:41

He is incumbent! He doesn’t have to be nominated!

43 Brian Barder July 16, 2016 at 15:53

Re-stating your known opinion doesn’t, with respect, make it any more persuasive. Please point us to the specific provision in the rules that exempts the incumbent from the requirement to demonstrate a certain minimum of support in the PLP, a requirement that has always applied to everyone seeking election or reelection to the leadership, back to the good old days when the PLP alone elected its leader.

44 Matthew July 16, 2016 at 15:57

He doesn’t need an exemption any more than he needs a nomination. There doesn’t have to be a specific provision, and there won’t be in the future because unless the Labour Party challenges it, which would be bound to fail, the custom and practice is established now. The restatement was designed to be shorter, in the hope that that worked, but it didn’t!

45 Matthew July 16, 2016 at 16:03

The “good old days”? When a few hundred champagne socialists in the House of Commons could foist leaders on the party members and the unions. Give me the current democracy where their hypocritical lunges for power (have you heard Eagle on the need to respect the views of the membership?) fare no better than a Turkish coup.

46 Brian Barder July 16, 2016 at 16:30

The primary duty of the party leader is to lead the PLP and serve as leader of the opposition or prime minister in parliament. The PLP knows the strengths and weaknesses of possible candidates for the leadership far better than any swivel-eyed hard left party activist out in the country; ordinary decent left-of-centre members never had any serious difficulty in accepting the choice of their MPs. Don’t forget that every Labour MP has a far wider ‘mandate’ than the votes of the party members and £3 supporters who lumbered us with Mr Corbyn. They are elected by 13 million ordinary voters and are answerable for what they do to everyone in their constituencies, not just to their local party members, not even just to those who voted for them. They are the people who are best placed to choose the party leader. But of course any suggestion that we should return to that sensible arrangement now would be howled down by the people who think that everyone is entitled to decide everything because that’s ‘democracy’, and who wrongly believe that their MPs should obey their local party activists’ instructions or face deselection. ‘Mob rule’ is not a bad description of that ignorant misconception. And we see its disastrous consequences in the sorry ineffectual out-dated shape of poor Mr Corbyn, still haranguing his much loved familiar “Support Cuba” rallies while all around him the United Kingdom is in a state of near collapse and without a functioning opposition. Nero was an enlightened democrat by comparison.
I’m not seriously advocating going back to the PLP alone electing its leader because I know it would be greeted with uncomprehending derision or worse, and it’s not a starter. But I just think it’s worth pointing out that it’s by far the most effective and logical system.

47 A Layman July 16, 2016 at 16:39

Clearly, your rules provide for two circumstances – challenges and vacancy.
By definition, challenges require someone to be challenged. By custom and practice the world over, the person challenged remains in place until defeated by a challenger.
Just read the words!

48 Matthew July 16, 2016 at 17:32

https://www.facebook.com/fairersocietyforUK/videos/1608348862790470/

I don’t know if you can see it, but if you can you will understand the depths to which modern politics has sunk in some quarters.

49 Matthew July 21, 2016 at 03:26

There is a legal challenge to the NEC’s decision, to be heard next week I understand. If it’s a judicial review, the criterion at the first stage will just be for the judge to consider whether the challenge is even arguable. If it is, he will probably order an expedited final hearing for later in the summer. If he says no, then that decision can go straight to the Court of Appeal for urgent reconsideration. So I just want to say – in advance of all that – that whatever the judge or Court of Appeal decide, I think we can/should agree that our own version of the controversy here HAS been arguable, on both sides, as I think has been well demonstrated!

50 Brian Barder July 21, 2016 at 11:53

Margaret Beckett’s letter in the Guardian of 20 July seems to me relevant and illuminating. She wrote:

The Labour party is divided between those who believe that Jeremy Corbyn can continue as leader, despite having lost the confidence of 80% of his MPs, and those who think he cannot.

I have noticed on your letters page an increase in comment which seems to be based on a perception that members of the NEC who no longer support Jeremy’s leadership have tried to remove him from the ballot paper by bending the party’s rules and constitution and have failed. Nothing could be further from the truth.

The NEC are elected as guardians of the party’s constitution, and our task last Tuesday was to inform ourselves what were the party’s rules, what were the precedents for a leadership challenge, and what was the legal advice.

Lawyers who have advised the party on such issues over many years were consulted by the general secretary at the request of the leader’s office. Their response was very clear; both the rules and the precedent showed that Jeremy Corbyn required 51 nominations to be on the ballot paper.

When this advice was received, the leader’s office instructed the general secretary to take legal advice from a specific named lawyer, who, I believe, has not advised the party before. He gave contrary advice.

At the meeting more than one NEC member stated that they accepted the advice of the party’s usual lawyers and believed it to be correct but that, nevertheless, they would cast their vote for Jeremy Corbyn to be on the ballot paper automatically because they had been so instructed by their organisation.

If, therefore, there has been any breach of the party’s rules and constitution, it seems to me that it is Jeremy Corbyn and his supporters who are responsible.

Margaret Beckett MP
Labour, Derby South; member, Labour party national executive committee
http://www.theguardian.com/politics/2016/jul/19/scenes-from-the-battle-for-the-soul-of-the-labour-party

51 A Layman July 21, 2016 at 12:04

Margaret Beckett’s contribution invites Mandy Rice-Davies’s answer – she would say that, wouldn’t she!

52 An Architect July 21, 2016 at 12:18

I much prefer reading the legal comments / arguments here, but isn’t part of the point that he didn’t really lose the support of 80% of the PLP . People just jumped on the bandwagon because, they were threatened that not to do so would mean maybe not getting a post in the new shadow cabinet.
and if they have been using the same lawyers for years I hope this recent advice was for free as they badly drafted it in the first place.

53 Brian Barder July 21, 2016 at 12:23

Mandy Rice Davis’s famous riposte hardly seems applicable to Margaret Beckett’s Guardian letter, unless you seriously believe that the lethal facts that she describes are untrue. Given the number of witnesses to the events described in her letter, that seems so unlikely that it can safely be dismissed.

If at first you don’t get the legal advice ypu want from your regular legal advisers, try, try, try again with someone else. Reminiscent of the Attorney-General’s efforts in March 2003!

54 A Layman July 21, 2016 at 12:52

The point was that all these – but specifically Margaret Beckett’s – comments are opinions and argument (and selected evidence of other opinions) expressed by people who have various committed positions.

Surely all such offerings should be taken cum grano salis!

55 Matthew July 21, 2016 at 13:29

@Margaret Beckett. I think the length of time that someone has advised the Labour Party entirely irrelevant. More importantly, as you do not mention but will now perhaps be willing to concede, we need to know if that person was – as seems likely from your mention of long service – a solicitor. The Doughty Street opinion was from a barrister. In the hierarchy of opinions, therefore, (an approach which in itself seems totally facile anyway) it would be quite reasonable to support the latter against the former. As clearly, and rightly, the NEC did.

56 Brian Barder July 21, 2016 at 17:40

I’m puzzled by the suggestion that Margaret Beckett’s letter was purely an expression of opinion. On the contrary: it was a factual chronicle of events, shedding a bright light on how the Labour party’s NEC came to have two conflicting legal opinions and how Mr Corbyn’s office, confronted with unwelcome advice from the party’s usual legal advisers (who incidentally didn’t necessarily write the disputed rules — there has been no suggestion that they did), saw fit to nominate another specific legal adviser to provide alternative and conflicting advice. None of that represents Mrs Beckett’s opinions. Is there any basis for doubting that the sequence of events was as she has described them?

57 Matthew July 22, 2016 at 07:54

@theBlairites. Given that the “usual legal advisers” were (1) soliticors and (2) wrong, it was entirely reasonable of Corbyn’s office to seek a second opinion from Counsel. It confirmed their suspicions, and given the independence of the bar, cannot have been guided to do so by those seeking it.

58 Matthew July 29, 2016 at 01:43

The judge’s interpretation of Labour’s leadership rules was that “the leader would not in that situation (where there is no vacancy) be someone who was a ‘challenger’ for the leadership and, accordingly, would require no nominations in order to compete in the ballot to retain his/her position as leader”.

The NEC can only now vary this by “consent” and since “consent” is not defined, that probably means unanimous consent.

But what goes around comes around. In time, whomever these rules favour now, are almost certain to favour someone of a completely different persuasion in due course. Such is the rule of law.

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