As the Labour leadership battle between Jeremy Corbyn and Owen Smith goes on, law lecturer Dr Nick McKerrell examines the recent court ruling upholding the Labour NEC decision to exclude new members from voting
THE announcement of the five Labour party members on Sunday that they would not challenge the English Court of Appeal ruling supporting the Labour Party NEC and its general secretary in its exclusion of 130,000 new members from participating in the leadership election brings the legal action to an end.
This was down to the prohibitively high costs the five were facing by taking the case to the Supreme Court, particularly if they lost.
This is a bit frustrating legally – but almost inevitable given the problems of access to justice which is a fact across the entire UK – as the Labour five had a strong case supported in the original hearing, and the appeal ruling of three judges was a surprising one.
This is a bit frustrating legally – but almost inevitable given the problems of access to justice which is a fact across the entire UK.
The High Court had ruled originally on 8 August that the Labour party, through the person of the general secretary Iain McNicol, had acted outwith its powers by restricting those who could vote for Labour party leader to those who had become members by 13 January 2016.
In contrast, the ruling of the Court of Appeal essentially states that this is not possible because the NEC, and its personification in the general secretary, has the ultimate power to determine who votes and how the process takes place through the rule book as a whole. This is true even if it seems to contradict the published rules.
By recommending a six-month freeze between membership and eligibility to vote in the leadership election (which was narrowly accepted by the NEC), the original court found that the general secretary was essentially breaching the rules of the Labour party.
In particular, it was not following the recommendations of the Collins Review of 2014 which introduced the new leadership election procedures. These recommendations were introduced in full under the Labour leadership of Ed Miliband and then became part of the party rule book.
Having a freeze of membership before an election is not unusual. As the judge in the original case put it, quoting another authority, this is usual in political parties and clubs to stop "individuals seeking to become members, especially by reason of encouragement or inducement by candidates, after the election process has begun".
The implications of this judgement in isolation are not good as it gives a large amount of power to the NEC to determine what a new member can do within the Labour party.
Last year's Labour Leadership election had a freeze of two days between signing up and membership ballots being issued. Gordon Brown's coronation (he was the only candidate) of an election in 2007 had a three-week freeze period.
The SNP deputy leadership election in 2014 had a similar freeze of a couple of weeks between becoming a member and voting in the autumn of 2014 to allow the tens of thousands that joined the SNP in the aftermath of the referendum result to participate.
In contrast, McNicol as Labour general secretary, chose a time freeze of six months prior to the commencement of the election process. In the original judgment, it was felt he did not have the power to do this and it had nothing to do with the main purpose of the freeze, which is to prevent people joining during a leadership election.
However, the Appeal Court ruled that this was wrong and that ultimately the NEC are the arbiters for deciding the "eligibility" of voting in the elections. Lord Justice Beatson questioned the original judge’s criticism of the length of the freeze period.
However, the NEC itself is not static and has changed since the original vote of exclusion was taken a few weeks ago.
He stated that fear of "entryism" or "packing of the party" could justify a lengthier freeze period. He also did not see a distinction between the selecting of candidates and electing the leader – despite the Labour party explicitly encouraging new members to join and vote for the leader since 2015 as a result of the Miliband reforms.
There actually is the provision for a six-month freeze within the Labour party rule book for "selection" as a candidate, or selecting candidates, or holding a position within the party. However, this is distinct from voting for leader.
In fact, the original case quoted the Labour party website – changed after the NEC decision, which included the following paragraph: "Where could my membership take me? As a member, you’ll be a key part of our election winning team. You’ll be eligible to vote in leadership elections, you can help shape party policy, you can attend local meetings and you can even stand as a candidate."
In the past there have been quite a number of cases of individual members taking their partiies to court. All types of political party have faced this. What was unusual in the original ruling is that the normal test is whether the party has applied its rules unreasonably, or did not follow proper procedural rules – this could be argued if someone faced expulsion without a full hearing for example.
It will be significant if the NEC uses its new majority to make the Labour rule book more participatory, and include all the new members.
Here, the original ruling is that the party officials acted "ultra vires" – that is, they simply did not have the power to do what they did and in doing so they misapplied internal rules of the Labour party.
This was what was overturned by the appeal, which stated that the NEC had the final say on all rules including the eligibility of members participating in leadership elections. This is what members sign up for when they join.
The implications of this judgement in isolation are not good as it gives a large amount of power to the NEC to determine what a new member can do within the Labour party.
However, the NEC itself is not static and has changed since the original vote of exclusion was taken a few weeks ago. It will be significant if the NEC uses its new majority to make the Labour rule book more participatory, and include all the new members.
Picture courtesy of Beth Cortez-Neavel
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