Labour’s leadership contest rules make “no trace of distinction” between an incumbent leader and a challenger and thus both should be required to seek nominations, the high court has heard.
Lawyers for Labour donor Michael Foster are challenging the decision of the party’s national executive committee to put Jeremy Corbyn on the ballot paper for the contest without having to seek the support of MPs, saying the rules had been misapplied by the ruling body.
Mr Justice Foskett will rule on Thursday in the case, which could have enormous implications for the leadership contest between Corbyn and Smith, including a possible re-run of the nomination process if the ruling goes against the party.
Acting for Foster, Gavin Millar QC told the judge that his client was not seeking to skew the result of the contest. “The claimant has no wish to deny the second defendant [Mr Corbyn] a fair opportunity, which can be achieved in this way, of obtaining the requisite number of nominations,” he told the court.
However, the Labour party’s barrister, Mark Henderson, who is acting on behalf of its general secretary, Iain McNicol, said the rules were clear that MPs alone could not seek to remove a sitting leader, and that court rulings should only take precedence over the decision of a voluntary association when the rules were unclear. They were not unclear in this case, he said.
Millar said the rules only referred to “challengers” in the case where an incumbent leader was challenged by another MP. Once the challenge is successful in forcing an election, the language of the rules changes to refer to nominees and nominations, which he argued implied all candidates would need nominations.
Had the rules intended to suggest an incumbent leader did not need the support of MPs, Millar said, “we would respectfully suggest that would have been so important it would be said in the terms”.
It was, he said, “part of the job description” of the Labour party leader, as set out in the rules, to maintain support in the PLP in order to lead the parliamentary party. When members are asked to choose from the candidates at party conference, there is “no trace of distinction” in the language between an incumbent and a candidate who has sought nominations.
“If this is a drafting error, it goes back a very long way,” Millar said.
Without requiring nominations, it gives an advantage to the incumbent, Millar said. “One cannot glean from the rules that a leader who has completely lost support, without a single supporter in the combined group [of MPs and MEPs], can continue.
“If there was, that would unquestionably be said in the rules. The consequences would be so damaging it is far too important to go unstated and not be … put to conference as an explicit consequence of the rules.”
Martin Westgate QC, acting for Corbyn, said the court had no reason to “disturb the decision of the NEC unless the decision was unreasonable ... and reasonable people can disagree.” Westgate argued that the NEC should be seen as expert opinion on the issue.
Responding, Millar said the NEC should not be seen as an independent expert. “The NEC is an elected body, intensely political, which changes according to who is elected onto the body,” he said. “It is nonsense to suggest there is something unfair about not giving it the decision, at the expense of a member being able to come to a judge and ask for a correct ruling.”
Henderson said there was precedence that courts did not become involved in rules of unincorporated associations, like the Labour party, apart from when the rules are incoherent. But the rules were not incoherent, he said.
“The fact that some of those involved [in the creation of the electoral system] may come to regret the results of what has been seen under it is not a basis to say that the rules can be reinterpreted,” he told the court.
Effectively keeping the incumbent leader off the ballot paper, or having a method to be able to do that, could be “interference in the democratic rights of several hundred thousand voters who may wish to vote for him again when he is challenged.”
The 15% threshold for MPs to gain in order to be nominated when there is a vacancy was intended to act as a “gatekeeping” function by MPs. Corbyn had already gained that threshold when he was first elected, his barrister said. “The incumbent will always have satisfied the requirement already – he got that 15%,” Henderson said.
Henderson said it was also not the case that it was required for an incumbent leader to have majority support from Labour MPs; the rules state only 15% is needed, and therefore most leaders will be elected with the majority of MPs not supporting them, he said.
Neither Corbyn nor McNicol were in court for the hearing, and the judge said he expected to make his ruling on Thursday, when he would also hear applications for any appeal.
This article was written by Jessica Elgot, for theguardian.com on Tuesday 26th July 2016 14.45 Europe/Londonguardian.co.uk © Guardian News and Media Limited 2010