The Jeremy Corbyn leadership challenge through a lawyer’s lens
This week, the future of Britain’s main opposition party is going to turn on the construction of a few words of its governing rules — and the potential legal consequences.
The Labour Party is an unincorporated association — this means it has no independent legal personality. It is a collection of individuals who are bound together by their rules, which form a contract between them.
This week will almost certainly see a challenge to Jeremy Corbyn’s leadership. The rules provide for different procedures when there is a vacancy, and where the incumbent is being challenged, so assuming that he does not resign, the relevant rule specifies that:
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 Commons members of the PLP [Parliamentary Labour Party].
The rule is silent on whether the incumbent leader is automatically a candidate in the leadership election, or whether he will have to seek the nominations of 46 MPs like any “potential challenger”.
This question is crucial, because it is unlikely that he could achieve that number of nominations.
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Legal ink has been spilled on the issue already, and is likely to continue to be.
On one hand, Labour-supporting silk Jolyon Maugham QC has written persuasively — if regretfully –that the words “potential challengers” mean that the nominations are required only by other candidates, and that on conventional contract interpretation principles the incumbent leader is automatically on the ballot.
On the other hand, party general secretary Iain McNicol has apparently received alternative legal advice that he should not put Corbyn on the leadership ballot unless the PLP does so.
It is also true that the last time an incumbent leader was challenged — in 1988, when Tony Benn stood unsuccessfully against Neil Kinnock — the incumbent had to gather nominations, although how much the relevant rule has changed since then is anybody’s guess (unless they have a copy of the party’s 1988 rule book knocking about — I’m afraid I don’t).
The party’s National Executive Committee (NEC) will ultimately decide which of these two options it prefers, probably on more of a partisan than a legal analysis. But whichever they choose, it would be open for any of the party’s 250,000 members to make a legal challenge that the rules have been wrongly interpreted.
The party thus faces the real, and unedifying, prospect of its rulebook being interpreted by a High Court judge in an urgent interim injunction application by dissatisfied members, whichever way it decides the issue internally.
However, this is not the end of the party’s legal troubles. Assuming that Corbyn can’t be unseated, the PLP could arguably decide to replace him as official leader of the opposition — if not as leader of the Labour Party — no matter what the party’s rules say.
This is because the office of leader of the opposition has a statutory definition, and a statutory procedure for determining disputes about who should hold the office, in s2 of the somewhat obscure Ministerial and Other Salaries Act 1975:
The crucial words are “that Member… who is… the Leader in that House of the party in opposition to Her Majesty’s Government having the greatest numerical strength in the House of Commons”.
The statute doesn’t define the word “party”, but historically the Commons has considered parties in terms of the way MPs choose to group themselves — that is, without regard to any party apparatus outside parliament. When parties have split it has been for MPs to decide how to group themselves.
In any case, s2(2) says that it’s for the speaker to make the final decision — and that once he has certified the new leader of the opposition this is unchallengeable.
In any case, it is almost certain that the courts would refuse to intervene in any dispute about how members of parliament organise themselves, under the well-established principle from the Bill of Rights 1689 that parliamentary proceedings are not justiciable.
So if more than half of the PLP were so minded, it would probably be open to them to recognise their own leader, and demand that the speaker certifies him or her as leader of the opposition, with all of the associated privileges given in the House of Commons’ Standing Orders.
This would obviously be an extreme option for the PLP — but what would be consequence be? My own view is that, political effects aside, there would be a surprising lack of room for legal manoeuvre for disgruntled MPs and Labour members. Perhaps incredibly, the party’s rules do not state in exact terms that the party’s leader (as the rules define the office) must be the party’s chosen leader of the opposition when the party is not in government.
What this means is that, in this very extreme scenario, Labour’s NEC would not even be able to discipline its recalcitrant MPs for taking this step — unless they were to do so under provisions in the rules about “bringing the party into disrepute”.
I am certainly not saying that any of these outcomes are likely to happen — still less that they should. However, in the present unprecedented political chaos, the fact that the simple, internal question of how Labour elects its leader has such far-reaching potential legal and constitutional consequences should be a lesson to anybody trying to make a contract, or a set of rules for an organisation, robust enough to deal with the unexpected.
As an aside — in the very unlikely (although just about conceivable) event that the Labour Party were to dissolve, then the most likely outcome is that its assets (such that they are) would be distributed between the members. So, chins up activists — even if everything really does collapse, there might be a (very small) cheque for you as a consolation prize.
David Green is a pupil barrister based in London. He graduated from the University of Oxford with a BA in Philosophy, Politics and Economics, before studying the GDL and BPTC at City University. He is a former Labour Party staffer.