How Jeremy Corbyn and his aide misunderstood the appeal court ruling
The Guardian of 16 August 2016 prints most of my letter pointing out that Jeremy Corbyn, the leader of the party, along with his ‘campaign spokesman’ [sic], at least one other writer of a letter to the Guardian and numerous contributors to the website LabourList, have completely misunderstood the decision of the court of appeal about the action of the party’s National Executive Committee (NEC) in setting a membership cut-off date for voting in the leadership election. All these luminaries have been attacking, sometimes in colourful terms, the appeal court and its ruling, and the action of the party’s general secretary and a committee of the NEC in taking the case to the court of appeal, in at least one instance bad-mouthing by name one of the appeal court judges by reference to his past career. Mr Corbyn’s campaign spokesperson went even further in declaring the judgment of the court of appeal “illegal” as well as undemocratic!
All these attacks reveal an inability (or perhaps a refusal) to understand what it was that the court of appeal actually decided. I tried to set this out in my letter to the Guardian, whose full original text, with its syntax and sources restored, read as follows:
John Airs [author of Guardian letter, 15 Aug 2016] is in eminent company in asserting, wrongly, that the Rt. Hon. Lord Justice Sales in the Court of Appeal “now decides that Labour shouldn’t face the vote of some 130,000 new members” (Letters, 15 August). Jeremy Corbyn, no less, said much the same in his Observer interview on the previous day (“People joined the Labour party… and were specifically told that they were able to vote in the leadership election and that was decided by the high court that they could. The appeal court has said they can’t….”). According to the BBC, Mr Corbyn’s campaign spokesperson went even further: ‘A spokesman for leader Jeremy Corbyn’s campaign said Friday’s verdict was legally and democratically “wrong”.’ In fact Lord Justice Sales and the other judges of the court of appeal said only that the party’s NEC had the power under the party’s rules to decide the criteria for voting in the leadership election and that its decision on the cut-off date for eligibility to vote was not illegal. The court made no comment either way on the wisdom or lack of it of the NEC’s decision, only that the NEC was legally entitled to make it.
This judicial upholding of the rights and powers of the party’s highest elected body (between party conferences) ought to be welcome to all Labour party members, and especially to supporters of Mr Corbyn who will apparently have a majority on the NEC after next month’s conference. The party’s general secretary, IainMcNicol, and the relevant NEC committee, were clearly right to defend those NEC rights by appealing against the high court’s contrary judgment. Quite apart from Mr Corbyn’s and others’ serious misinterpretation of the appeal court’s decision, which was manifestly in favour of the Labour party, personal attacks on a senior judge whose judgment, along with that of his brother judges, may have appeared to be unwelcome, ought to be completely out of order. The decision to disfranchise party members who joined after a given date was that of the NEC, not of any UK court.
Brian Barder
London
15 August 2016
It’s unnerving that such an elementary mistake about the significance for the Labour party of such a notably supportive appeal court ruling should have been made by the party’s own leader, a person offering himself to the UK electorate as a future prime minister. The fact that his campaign “spokesman” actually saw fit to challenge, publicly, the legality of the ruling of the court of appeal also sheds a lurid light on the leader’s judgement in choosing his senior staff.
Brian
Your comments are, as one might expect, legally impeccable. But they do not explain why the NEC should attempt (probably futilely) to rig the leadership election in favour of a particular candidate, whether it is legally entitled to do so or not.
I am of the members who was affected by this ruling, or the decision of the NEC if you prefer.
When I rejoined the Labour Party, online in May after a time working overseas, the Labour website explicitly told me that I would be entitled to vote in leadership elections. There was no reference to any six month waiting period.
The wording was changed after the NEC ruling on July 12th. So if there was to be any waiting period the argument should be that it should only apply to those who joined after the 12th July. No one is denying that the NEC has the right to make that change.
This will not be the first time that the courts will have been asked to rule on a claim made on a website which was not subsequently honoured. The legal principle of the “man on the Clapham omnibus” is usually applied. In other words what would a reasonable person have understood was meant by the phrase:
“you will be entitled to vote in leadership elections”
Would a reasonable person have understood that to mean straightaway after becoming a member or after a six month waiting period?
The High Court clearly got it right and the Court of Appeal equally clearly got it wrong!
Odd to present a judgement upholding the Labour NEC decision as ‘manifestly in favour of the Labour party’. The High Court judgement was no less in favour.
The issue was simple. Under the terms of the contractual relationships established by Labour party members in this unincorporated association, what rights does the NEC have to set the election rules in these circumstances and especially the eligibility for voting? If it is not clear as per the key contract concerned (ie the Party constitution/rules), then what?
It turns out that the contract was poorly or at least ambiguously drafted in that it did not explicitly provide for what should happen when a Labour leader loses the confidence of Labour MPs. So it all boiled down to a ‘reasonable interpretation’ of the rules.
Both the High Court and Appeal Court looked carefully at the issues and proclaimed accordingly. They disagreed, as often happens. But the higher court view wins.
Petermartin makes a fair point about what the cisnormative so-called ‘man’ on the Clapham omnibus might think about all this in exercising patriarchal privilege. But s/he errs in identifying the key question at issue, namely: what are the powers of the NEC in these circumstances as per the rules agreed by members? If Labour members have joined an organisation led by people who are empowered by the rules agreed by those members to cheat those members, that is not the courts’ problem haha.
I’ve recently blogged on this here. The reading on which the judgment rests is certainly valid (and has the authority of the Appeal Court), but it’s not the only possible valid reading, or necessarily the best. I think it only manages to justify reversing the High Court’s decision by giving the NEC far more power to ‘vary’ or set aside the party’s rules than any such body should have. Given the recent change in the NEC’s composition, it may not be Corbyn’s supporters who regret this decision in the longer term.
Brian writes: Most of the points made in the comments above are exhaustively dealt with in the full judgment of the Court of Appeal. Robin Fairlie complains that my post fails to deal with the purely political question “why the NEC should attempt (probably futilely) to rig the leadership election in favour of a particular candidate”, assuming that the cut-off date imposed by the NEC was designed to favour one candidate at the expense of the other, rather than that it was governed by the consideration that it would be administratively impossible to check the eligibility of possibly tens or hundreds of thousands of people applying for membership right up to the closing date for voting in the leadership election. I don’t know on what basis Robin chooses the first of these two possible interpretations of the NEC’s motives in preference to the latter. Being a charitable soul, I am inclined to choose the second, but in any case this question lies well outside the scope of my post (and outside the scope of the question before the courts).
I sympathise with Peter Martin, but he acknowledges that the NEC had the right to make the decision that it did about the cut-off or freeze date, and it seems to me pretty daring for him to assert that the High Court (which would have struck down the NEC decision as being in breach of contract and in excess of its powers under the party rules) was ‘right’ and that the Court of Appeal (which spelled out its reasoning at great length, citing umpteen legal precedents and dealing exhaustively with every argument advanced by both sides, concluding that the High Court judgment was wrong in law) was ‘wrong’. What the Court of Appeal decided is by definition the law. It’s legitimate, obviously, to prefer a different interpretation of the party’s rules, but not strictly possible to describe that adopted, with reasons given, by the highest court to rule on the matter as “wrong” — still less “clearly” wrong, especially as it is not going to be challenged in the Supreme Court and will therefore stand as a statement of the law.
I don’t understand the relevance of Charles Crawford‘s reference to the question “what should happen when a Labour leader loses the confidence of Labour MPs”, which was indirectly the subject of a quite different court case. That may for all I know demonstrate the possible ambiguity of the party rules governing the requirement that candidates other than or including the incumbent leader must have the support of a given percentage of the parliamentary Labour party’s members, but it seems to be irrelevant to the rules empowering the NEC to set a freeze-date for members eligible to vote in a specific leadership election. Charles’s allegation that the NEC is empowered by the rules “to cheat [some of the party’s] members”, with the implication that it has done so for that improper purpose, is both baseless and beyond the scope of this discussion. I am also at a loss to understand how Charles can view the judgment of the High Court, which substituted a judge’s view of the limitations on the powers of the NEC for that of the NEC itself, and which has been comprehensively reversed in the Court of Appeal, was just as favourable to the Labour party’s ability to govern itself as the contrary judgment of the Court of Appeal.
Phil makes a valid point about the possibility of interpreting the party’s rules differently from the Court of Appeal’s interpretation, but of course that is true of almost any court ruling which adopts an interpretation capable of challenge. His criticism of the party rules for giving the NEC “far more power to ‘vary’ or set aside the party’s rules than any such body should have” may well be valid but it was not a matter on which the Court of Appeal was called upon to decide. It is not clear to me whether Phil is referring to the curious fact that the Court of Appeal judgment has been savagely attacked by Mr Corbyn, his staff and many of his supporters, despite the fact that it upholds the rights of the NEC to act with the wide discretion given to it by the party’s rules (which are its constitution), but I agree with him (Phil, not Mr Corbyn) that the Corbynites will probably come round to welcoming it when they get effective control of the NEC in a few weeks’ time. I am not qualified to comment on Phil’s learned comment on these issues on his own blog except to say that it is well worth reading, even by a lay person.
Various claimants took the matter to court arguing breach of contract. It therefore becomes a matter for the court to interpret the contract. On appeal it was held that the Labour Party Rules permitted the NEC to make decisions about who could vote. That concluded the case because the NEC decision was a permissible one under the rules. Legally, there isn’t much more to it than that.
Brian,
You write:
<em> “I sympathise with Peter Martin, but he acknowledges that the NEC had the right to make the decision that it did about the cut-off or freeze date” </em>
That’s not quite what I said. I’m acknowledging they had the authority to change the rules on the 12th July, but only for members who joined after that date.
There’s nothing, as far as I can see, in the rulebook which gives them any authority to apply these changes to members who joined beforehand. If they legally have the authority to disenfranchise members who joined in the last six months then it must follow they can, in theory, do the same for all members who joined in the last six years or even in the last six decades which clearly absurd.
Brian writes: Thank you for the correction, Peter. The judgment of the Court of Appeal deals with the question of retrospection, for which there is apparently a precedent. Retrospection beyond a reasonable period of time as in the examples you provide would presumably fall foul of the ‘Wednesbury unreasonableness’ rule.
I would agree that these issues should be decided on what is “reasonable”. The application of retrospection is rarely “reasonable”. Either in law or in the rules of a club, a society, or a political party. So I hope the next conference will address the issue and make a new rule prohibiting retrospection, perhaps unless there’s a 75% majority. This should cover any difficult to foresee eventuality which may be an exception to what should be a general rule.
Also we need to ask if it is “reasonable” that a person who is not a member of the party can pay £25 for a vote. But a member of the party who pays £5 per month subs cannot vote until he or she has paid £30.
Where is the “reasonableness” in that?