The Corbyn Coup

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 Rules

 

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

 

Nominations

….

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.

 

The Precedent

 

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.

 

Update 1

 

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.

 

Update 2

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.

Advertisements

7 thoughts on “The Corbyn Coup

  1. I have a copy of the 1988-89 Labour Party Rule Book. The rules for leadership elections included a crucial difference because there was no reference to leadership elections “where there is no vacancy”. In other words the challenger and the incumbent were treated identically, which is not the case now.

    Incidentally the 1988 challenge also applied to the Deputy Leadership – Eric Heffer challenged Roy Hattersley. Then John Prescott also stood. That might be a precedent for saying that in the event of a leadership challenge, a third candidate may also stand if validly nominated.

  2. You commented that the Rule Book is a contract between members. I don’t think that is the most accurate characterisation. It is much closer to articles of association of a company. However, all of the ordinary rules of legal construction can and should be applied to the rule book, and I believe that members could obtain an injunction against the NEC if it acted ultra vires in the same way shareholders can obtain an injunction against directors

    • An injunction, being equitable (or even a legal equivalent), would have to compete with the equity raised by the prior reliance of all parties on the seeming acceptance of Corbyn’s nominations as valid. That acceptance would appear to fulfil the ordinary requirements for estoppel: one party communicates or indicates to another with whom he has contractual relations, that he will not be claiming his full legal rights in a given instance. If the person receiving this assurance, in this case Corbyn (and those voting for him), changes his position significantly (I’m not sure to what degree but if it’s massively, then I’m sure it’s likelier to be granted equitable aid), he can raise an estoppel, as a shield against a claim for full legal performance, should the promisor later resile from his assurance he wouldn’t claim his full legal rights.

      So I am pretty sure anyone seeking an injunction would be estopped from doing so.

  3. I agree with you that the anti-Corbyn construction of the rules must focus on “any” in the phrase “any nominations”. I believe the previous sentence merely indicates when it is permissible for challengers to seek nominations, and then the rules go on to say that “any” nominations must be supported by 20% of PLP.

    Otherwise it could have been drafted to say “such nominations” rather than “any”.

  4. In the 1993/94 rules the equivalent to the current 2 B ii read:

    “In the case where there is no vacancy, nominations should also be sought on an annual basis. Each nomination must be supported by 20 per cent of the Common (sic) Members of the Parliamentary Labour Party to be valid. Nominations not attaining this threshold shall be null and void.”

    That made it clear that an incumbent leader had to seek nominations annually even if there was no challenger. I don’t know when the amendment to refer to challengers was introduced. That amendment must have the effect that an incumbent leader need not seek nominations in the absence of a challenge but leaves it unclear whether nominations need to be sought (a) only by a potential challenger or (b) by an incumbent leader as well in the event of a challenger meeting the 20% threshold.

    The other provisions in the current rules which you refer to and which refer to nominees were there in essentially the same form in the 1993/94 rules.

    In the light of the above history it seems to me that the 1988 precedent doesn’t really help either way and it comes back to the natural meaning of the words of the rules. I find Jolyon Maugham convincing on that but there might, of course, be admissible evidence which throws light on the reason for the amendment which introduced the reference to potential challengers.

Leave a Reply

Fill in your details below or click an icon to log in:

WordPress.com Logo

You are commenting using your WordPress.com account. Log Out / Change )

Twitter picture

You are commenting using your Twitter account. Log Out / Change )

Facebook photo

You are commenting using your Facebook account. Log Out / Change )

Google+ photo

You are commenting using your Google+ account. Log Out / Change )

Connecting to %s