My favourite political commentator was the late Alan Watkins. Watkins had many qualities. He was funny, had good judgment, and had seen it all before. His A Short Walk Down Fleet Street is an entertaining memoir of how the press used to be. He had studied law at University and, although he had no time for lawyers, was always very good with the rules that other commentators found too tedious to examine.
The UK Labour Party is an unincorporated association, which means it has no separate legal personality. It is a form of club. In its internal operation it is not a public institution, subject to judicial review or electoral law. The rules of the Party, as with any club, constitute a contract between the members. Pacta sunt servunda: agreements must be kept.
The Party is currently in the middle of a leadership election. To be validly elected leader of the Labour Party a person must do so in compliance with the rules. If the rules are not complied with, any member has standing, as a contracting party, to seek a court declaration that the person purportedly declared the winner is not the leader. Many thousands of people have registered to vote, and some have been excluded from doing so. Clearly some of these exclusions, of for example non-human voters, are valid. What of the borderline cases?
The eligibility criteria for electing the leader of the Labour Party were changed by a Special Conference on 1 March 2014, following a report by Lord Collins commissioned by Ed Miliband. The amended 2015 Labour Party Rule Book is not, as far as I can find, available online, but the relevant rules are contained in Chapter 4 set out here. These state
The precise eligibility criteria shall be defined by the National Executive Committee and set out in procedural guidelines and in each annual report to conference.
No other eligibility criteria for voting are set out. Under the rules, the NEC has the power to set out who may vote by setting down guidelines in advance.
The guidelines in force for this election were so set out here, and conform with the recommendations of the Collins review. Three categories of people can vote
- Labour Party members
- Affiliated Supporters – people who have signed up through one of Labour’s affiliated organisations (eg the Fabians) or unions, declared their support for Labour values, provided the party with contact details, and are on the electoral roll.
- Registered supporters, who have (i) paid a £3 administration fee, and (ii) declared their support for Labour values, (iii) provided the party with contact details, and are (iv) on the electoral roll.
The declaration that was required for supporters in the last two categories was “I support the aims and values of the Labour Party, and I am not a supporter of any organisation opposed to it.”
Labour has now prevented several thousand people from registering as supporters under option 3 on the basis that their statement as to supporting Labour values is false. This has been done, for example, on the grounds that the person seeking to register was known to have voted for another party in the May 2015 General Election (the Labour Party stands candidates in every constituency in Great Britain.)
The legal basis for such exclusion under the rules is uncertain. Once the conditions of (i) fee, (ii) declaration, (iii) contact details, (iv) electoral roll have all been ticked, what is the basis for exclusion?
If the declaration is dishonestly made, this will be sufficient. Fraud unravels all, and the party should have no problem in defending the exclusion of those who have signed up with malevolent intent, such as Mr Toby Young.
Much more problematic are those cases of exclusion, probably the majority, who have honestly made the declaration, but are now being excluded on the basis of past affiliations. On the rules as they stand, there seems to be no basis for refusing to allow such people a vote.
In relation to applications for membership the General Secretary has a sweeping discretion to rule anyone out under Appendix 2.B.x
At any time before the individual is accepted as a full member of the party, the General Secretary may rule that the individual application for membership be rejected for any reason which s/he sees fit.
I cannot see any equivalent provision for those wishing to register as supporters.
That the operation of the current rules and guidelines has not been thought through is revealed if one searches for the procedures to be followed in case of a dispute. The only provision is found in the 2015 guidelines and states
23. Any disputes as to the eligibility of and individual members must be raised by the date set on the timetable. The NEC have designated the Director of Governance to rule on eligibility of individual members and her decision will be final.
Presumably, we may read the reference to ‘members’ expansively so as to include supporters. The Director of Governance of the Labour Party is, I think, Emilie Oldknow, but from statements made by Harriet Harman, the decision on exclusions are now being made by members of a National Executive Committee panel. She also states that around 3,000 people have been excluded from voting so far, a figure that can be expected to rise. With around 500,000 people voting, that means around 1% of those seeking to vote will not be permitted to do so.
This seems to me to be a dangerously high figure. If the party allows to vote those registered supporters who meet the four criteria, that leaves members no grounds for challenge under the rules. If it excludes someone on the basis that the declaration made might not have been honest, when in fact it is, this is a breach of the rules.
If the rules are not complied with, no valid election has taken place. Under the agreement with the membership, it would not matter that the same result would have been reached if it had.
There are now widespread reports on twitter and elsewhere of ballot papers not having been sent to members, who have been thereby denied a vote. If true, this is an even clearer breach of the party’s rules on voting. If people entitled to vote have been denied it, we haven’t had a valid election. Although the candidates have undertaken not to challenge the result, any individual member as a contracting party has standing to sue and seek a declaration that the winner has not been duly elected (indeed candidates only have such because they are members).