A live legal question raised on the frontpage of today’s Times is whether the leader of the Labour party, Jeremy Corbyn, needs to obtain the nomination of 20% of the Parliamentary Labour Party in order to be a candidate for any new election for the leadership. It is claimed that legal advice has been sought, and that its substance is that any candidate, including Corbyn, would need to be nominated by that proportion of MPs (currently 38). Corbyn would be unlikely to achieve that number if it were required. The reasoning of the advice given is not disclosed.
This question has been considered by Jolyon Maugham QC. Maugham is a tax barrister. He was responsible for Labour’s pledge in April 2015 to abolish the non-domicile tax status, Labour’s only clear win during the campaign. His blog is always well worth reading. He is no friend of Corbyn, but is of the clear view that the incumbent leader is not required to be nominated. I am no longer certain this is correct.
The Labour party rule book is a contract between members. Its meaning is a matter of contract interpretation. Unsurprisingly the rules do not expressly deal with the situation where the leader has the support of less than 20% of the Parliamentary Labour Party, but wishes to stand.
The starting point must be the express words of the rule book. The strongest argument against the view that the incumbent must be nominated is the wording of Chapter 4 Clause II, 2 B ii which provides
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. Nominations not attaining this threshold shall be null and void.
A natural reading of this section is that it is only potential challengers who must cross the 20% threshold. However, the provision is not as clear as it might be. It does not say “a potential challenger must be supported by 20 per cent” but rather “any nomination must be supported by 20 per cent of the PLP.” It is silent as to whether the incumbent must be nominated.
There are indications in the rules that the election takes place between nominees. So, Clause II. 2 B v provides
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.
Clause 2 B vi states
Nominees who do not attend the relevant Party conference shall be deemed to have withdrawn their nominations, unless they
send to the General Secretary on or before
the day on which the conference opens
Clause 2 C x states
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.
These provisions seem to contemplate a competition between nominees, and this is reinforced by the heading of Clause 2 B: “Nomination”.
Maugham argues that the rules provide no provisions for a leader to be validly nominated. However Clause II, 2 B ii may be read as covering any who wish to be nominated, including the leader. It is true, as Maugham suggests, that the rules seem to use the words nominee and candidate interchangeably, but this supports the reading that the only contemplated candidates are nominees.
In 1988 after the 1987 General Election, Tony Benn challenged the incumbent Neil Kinnock for the leadership of the Labour party (an election the latter comfortably won). At that time both sought nominations from the parliamentary party . How can this impact upon the interpretation of the rules?
How a leadership election between an incumbent and a challenger has been run in the past cannot provide a binding precedent for how the rules are to be read. It may well be either that the rules were not understood at that time, or that Kinnock’s nominations were otiose and sought for political effect. Further, in interpreting a contract (in England), how the parties subsequently operate that contract is irrelevant to its interpretation. The words mean what they mean, not what the parties to the deal subsequently think they mean.
However, in interpreting words (as people, not just lawyers) we look at the context in which those words were used. The current rule book dates from 2014 (although many of the individual rules long pre-date that). That is the date at which the current agreement was entered into by members. Part of the background to that agreement is how the rules have been operated in the past.
Given that context, the way leadership contests have been run in the past may be used for purposes of determining whether any contest is to be between nominees only. My judgment (and I only have one) is that it is plainly arguable that it must be.
In comments, David Boothroyd has kindly tweeted the provisions of the Labour rulebook in force in 1988. Back then the rules drew no distinction between the situation where there was and was not an incumbent, and required nominations of 5% of the PLP regardless. (This was subsequently raised to 20% to prevent Benn standing again). Under those rules it was quite clear that the incumbent had to be nominated.
The change to the current wording seems to me to have been made in order to require different levels of support where there is a vacancy and where there is not. Currently where there is a vacancy it is 15% and where there is not 20%. It is arguable that that was the only change that was intended, and not a change to the requirement that the incumbent be nominated.
A rule change now includes MEPs within the numbers who can nominate and raise the threshold for nominations to 50. The rest of the analysis remains the same.