On 12 July 2016, the ruling body of the Labour Party, the National Executive Committee (the “NEC”) decided that Jeremy Corbyn, the current leader, need not obtain nominations from his colleagues in order to be nominated as a candidate in the leadership competition that arose in the wake of the EU referendum result.
There then followed two weeks in which one of the more bizarre legal cases of recent times took place at a breath-taking speed, ending on 28 July 2016 when Mr Justice Foskett gave judgment in the matter. Those who have been involved in litigation will know that proceedings lasting only 16 days are rare indeed. Not that this unlikely speed reduced the costs involved: it still took one High Court judge, six barristers (two of which were Queen’s Counsel), three Court hearings, several hundred thousand pounds and a substantial number of hours of Oxbridge-educated time to reach the “bold” legal conclusions that the contents of the Labour Party Rule Book are not absurd, and that an “incumbent” is not a “challenger”. Don’t feel silly if you are scratching your head as to why all of this was necessary to reach such an obvious conclusion. As many already know (and many more have only recently learned and expressed on social media) politics is not always a logical or rational process, so this case should probably not surprise us.
You may question why the Courts had the jurisdiction to hear the unorthodox claim that the unusual and colourful Mr Michael Foster brought in the first place. Surely this was a political matter, and had nothing to do with the law? Unlike most of the other mainstream, British political organisations, the Labour party’s constitution is contained in its rule book, which is in turn a contract between the party and its members. This is a well-established legal point. Mr Foster, as a member of the Labour party, therefore had the legal right to bring a claim seeking to overturn the decision of the NEC on the basis that he thought they had breached this contract by not following the rules.
The key issue in this case – almost unbelievably – was whether or not the NEC had interpreted the meaning of “potential challenger” correctly. This point arises because the Labour Party Rule Book only recognises two scenarios in which a leadership election can occur:
- there is no incumbent, or
- there is an incumbent.
Unsurprisingly, if there is no incumbent, all candidates must seek nominations from Labour MPs and MEPs (so there will at least be one reason to update the wording of the rules in the near future). In a scenario where there is an incumbent leader, the “potential challenger(s)” must obtain the support of 20% of the party’s MPs and MEPs in order to become nominated as a candidate in the ensuing leadership election. But crucially the rules are silent as to whether the incumbent also needs to obtain nominations. Logically it follows then that the incumbent need do nothing if he or she is to appear on the ballot paper, for how can there be a challenger without anyone (i.e. the incumbent) to challenge? This is my view, and the view of the illustrious Michael Mansfield QC who advised Jeremy Corbyn in the build up to the fateful meeting of the NEC whose decision Mr Foster wished to appeal. And, most important of all, it was also the Court’s view. Whilst at pains to say that it was in no way influenced by political factors, the Judge reached the decision that the NEC had correctly decided that Mr Corbyn should automatically qualify as a candidate in the Labour leadership election as an incumbent leader is not a “challenger” for the purposes of the rules and so does not require nominations. People across the British political spectrum will be pleased with this decision – although for very different reasons.
No, you haven’t missed anything. The basis of the claim (and the reason for hundreds of thousands of pounds being spent) really was as simple as that.
So where does that leave us, and what is the moral of the story? Well, other than the realisation that we continue to live in interesting times, regardless of whether or not it is a good idea for a membership organisation to give its members such legal rights, it may well be that Mr Foster’s action has set a precedent of litigious political activism that will be a headache for the NEC and the leadership of the party for many years to come. That will also please many different groups of people for very different reasons.
In the words of the Judge “I do not know to what extent [the Labour Party Rule Book] was drafted with legal assistance … what is certain is that it has been altered by various amendments over the years … it was not the product of one drafting exercise.” Whilst a determined and well-financed litigant can, if so motivated, bring a claim regardless of its merit, had those drafting the Labour Party Rule Book taken more care, much litigation, consternation (on the part of Mr Foster), embarrassment (per Mr Corbyn) and money could have been saved. The true moral of this story may then be that a comparatively small investment in instructing solicitors so as to ensure the integrity of your documents can save you fortunes further down the line, and perhaps even alter the course of history …
