Playing by the rules

I agree with a lot of what David Allen Green says here: the rules of the Labour Party aren’t clear enough to give a definitive answer to the question of whether, in the case of a challenge, the leader of the party should automatically be on the ballot; disagreement on the issue is legitimate and to be expected, even (or especially) among legal experts; the question is ultimately a political one and should be resolved through political, not legal means (“Law is not politics, and politics is not well served by people going to court to get political problems solved.”)

What I don’t agree with in David’s piece is the argument that the demands of fairness, as between all candidates or potential candidates, should govern the interpretation of the rules (“If any candidate is given any privilege or handicap then that must be for a good and express reason”). To explain why, it’s worth briefly reviewing the history of the rules in question. Labour adopted an ‘electoral college’ for leadership elections in 1981, replacing a system in which MPs elected the party leader. This in itself suggests a principle to be kept in mind:

1. Power to replace Labour Party leaders lay with the PLP until 1981, but since then has been held by the party as a whole. The rules are not designed to return this power to the PLP and should not be interpreted so as to have this effect.

Initially, contenders were required to be nominated by 5% of the PLP. This was raised to 20% in 1988 after Tony Benn challenged Neil Kinnock (supported, of course, by Corbyn). Consideration was given to a figure of 10%, but this was rejected on the grounds that it would still leave open the possibility of a well-organised challenge from the Campaign Group (of which Benn and Corbyn were members). The threshold of 20% was implemented to minimise challenges to an incumbent leader, and to prevent contenders from stirring up the party with unnecessary and divisive leadership election contests in general. It was so effective in doing so that, following Neil Kinnock’s resignation, there was the distinct prospect of John Smith proceeding to a ‘coronation’ unchallenged, none of his potential rivals being able to clear the 20% bar. While Bryan Gould did eventually make it onto the ballot, it was felt that the risk of an uncontested election following a vacancy at the top should be avoided, and the threshold for leadership elections when a vacancy exists was lowered in 1993 to 12.5% of the PLP. Conclusions from this:

2. The rules have been designed to minimise unnecessary and divisive leadership elections and to secure the position of incumbent leaders who might be faced with such challenges. (It would be absurd to interpret Kinnock’s rule change as an attempt to make it harder for the incumbent to seek re-election.)

3. The rules have been designed to promote electoral contests at a time when this is appropriate and constructive, i.e. when a vacancy has arisen.

In 1994, a vacancy having arisen due to the untimely death of John Smith, Tony Blair won election to the leadership of the party. Leadership challenges in Tony Blair’s first two terms were like Sherlock Holmes’s dog in the night-time: they’re interesting because there was no sign of them. Where there was no vacancy for leader, the procedure was that “nominations shall be sought each year prior to the annual session of party conference”. If a contender had received sufficient nominations, conference could then decide – by a simple majority vote – to hold an election (or, presumably, not to do so). Writing instructions in the passive voice is rarely a good idea; this rule, as written, gives the party’s ruling bodies responsibility for ‘seeking’ potential leadership challengers, and perhaps it’s not surprising that they didn’t look particularly hard. (The Campaign for Labour Party Democracy tabled an amendment in 2006 which specified that the General Secretary would seek nominations each year by sending nomination papers to each MP. It wasn’t adopted, possibly because it’s far too straightforward.) Looked at a certain way, this rule could even be thought to legitimise the more proactive approach taken by Gordon Brown in 2007, ‘seeking’ potential nominations in much the same sense that Torquemada sought potential heretics.

4. Expectation and established practice has been that the party’s leadership and governing bodies have control of the process.

Two final amendments, which I’ll take out of order. In 2014, the electoral college was transformed, removing the MPs’ section and introducing a section for ‘supporters’ (the now-infamous £3 voters), who it was hoped would go on to join the party in large numbers and help to revitalise it. (Shame that didn’t work out, eh?) As part of the package of rule-changes, the PLP thresholds were replaced by percentages of members of the PLP and the European PLP combined, and the 12.5% threshold for nominations in the case of a vacancy was replaced by a threshold of 15% . The other change to mention was made in 2010, when the words “nominations shall be sought” were replaced by “nominations may be sought by potential challengers”. My reading of this change is that it was intended as little more than a tidying-up exercise, bringing the rules in line with the reality (in which nominations would certainly not be ‘sought’ unless there was already a lot of pressure to do so). Some at the time saw things differently, it has to be said. Jon Lansman (for it is he) argued that the rule change “legitimizes and facilitates attempts by mavericks and malcontents to undermine the party leader”. “By placing the onus on ‘challengers’ and failing to provide any timetable, the NEC are risking a media frenzy every time 2 or 3 disgruntled MPs issue a challenge to any future Leader … Surely it would be preferable to routinely seek nominations from all MPs, constituency parties and affiliated organisations?”. I don’t think Lansman was prophesying Corbyn’s leadership here – I expect it took him by surprise just as much as the rest of us. What he was saying was that the rule change tended to promote a narrow focus on MPs alone, and that the broader party, including constituency parties, had a right to be heard. Perhaps there’s another principle here:

5. The Labour Party is not a unitary organisation but a combination of relatively autonomous parts with interests which can diverge and even conflict. Managing the party successfully must mean balancing these interests, and maintaining the mechanisms needed to do so.

So that’s the history, and here’s what we’ve ended up with.

i. In the case of a vacancy for leader or deputy leader, each nomination must be supported by 15 per cent of the combined Commons members of the PLP and members of the EPLP. Nominations not attaining this threshold shall be null and void.

ii. 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 combined Commons members of the PLP and members of the EPLP. Nominations not attaining this threshold shall be null and void.

Our attention at the moment is on rule ii here – or rule 4.II.B.ii to give it its full name – and specifically on two words in the second sentence: any nomination. What does ‘any’ qualify – does it refer back to ‘nominations’ in the previous sentence (those sought by challengers)? Or does it have the natural-language meaning of ‘any nomination (of the kind that we’re talking about at the moment)’? There’s no obvious answer in the text itself, which leaves both interpretations open; we’ll call them the ‘Challengers Only’ and ‘All Nominations’ interpretations.

How do they fare against the history of the rules, and the principles I’ve drawn from them? Principle 1 suggests that power to replace the party leader should not be returned to MPs (without a rule change); to the extent that this also implies that MPs should not have the power to depose the party leader, this principle supports ‘Challengers Only’. Principle 2 plainly supports ‘Challengers Only’. Principle 3 supports ‘Challengers Only’ – if keeping challengers off the ballot is undesirable for party democracy, surely keeping the incumbent off the ballot is no better. Principle 4 is neutral, given that the party’s leadership and governing bodies are themselves in dispute. Principle 5, on the other hand, plainly supports ‘Challengers Only’, insofar as debarring a candidate whose support base is in the constituency parties would tilt the balance of the party towards outright PLP dominance. Of the five principles, three are strongly in favour of ‘Challengers Only’  – which is to say, in favour of Corbyn, as incumbent, not having to seek nominations – while one is weakly in favour and one neutral; none of them favours the alternative ‘All Nominations’ interpretation.

If my reading of the rules and their history is unpersuasive, consider some credible scenarios and how they would play out under the two interpretations.

The Secret Coup. A popular leader of the party faces entrenched opposition from a substantial but isolated minority of the party’s MPs. The minority faction MPs prepare for a leadership challenge, but do so informally and without making any public statement. Ten minutes before the deadline, on the last day when nominations are open, a leadership challenge is lodged, complete with the appropriate number of signatures. The party leader has had no knowledge that this was about to happen and is unable to submit his own nomination in time. What happens now?

The Botched Coup. An unpopular party leader faces a leadership challenge. The ‘All Nominations’ interpretation is generally regarded as correct, so the leader is forced to look for nominations; 20% proves to be just too high a threshold, and the incumbent leader is off the ballot. Unfortunately, the only challenger has been working from an old copy of the party rules, and has stopped collecting signatures after reaching 20% of the PLP; if the EPLP is taken into account as well, the challenger’s nominations also fall short. What happens now?

The Chaotic Coup. As with the previous scenario, we have an unpopular party facing a leadership challenge and unable to secure 20% of PLP/EPLP nominations. In this scenario, however, the leader’s critics have been unable to agree on a single candidate; five separate candidates insist on standing, each convinced that only (s)he can offer the party the leadership it needs. Everybody falls short of the 20% threshold. What happens now?

If we apply ‘Challengers Only’ the outcomes are straightforward. In the first case, there’s a leadership election, which the popular leader will predictably win; in the other two, the unpopular leader stays in office, at least until such time as the challengers get their act together. Not a problem; life goes on. If we apply ‘All Nominations’, though, the second and third scenarios leave the party without a leader; doubtless this could be managed, but surely this situation – and readings which could give rise to it – is better avoided. The first scenario is worse still: the ‘All Nominations’ reading allows an organised group of MPs to depose a popular leader without a vote being cast, while remaining entirely within the rules.

I take David’s point about fairness as between election candidates; formally, the incumbent in an election is one candidate among others. In practice, however, Labour Party leadership elections have always drawn a definite line between incumbents and challengers, treating the two very differently (the use of a different threshold for elections with no vacancy attests to this). When this is taken together with the importance of involving the party as a whole – a principle enshrined in the electoral college, but violated by any mechanism enabling MPs alone to depose a leader – and the desirability of avoiding perverse and chaotic outcomes, I think the arguments in favour of a ‘Challengers Only’ reading are overwhelming. I hope Labour’s NEC rules accordingly.

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8 Comments

  1. andrew adams
    Posted 11 July 2016 at 12:45 | Permalink | Reply

    Regarding the three scenarios you mention above, as the rules say “Where there is no vacancy, nominations may be sought by potential challengers” [my italics], I guess you could argue that while someone has not achieved the necessary number of nominations they are only a potential, not an actual, challenger and so the incumbent does not need to get nominations himself. In that case the “Botched coup” and “Chaotic coup” scenarios aren’t really a problem, but the “Secret coup” certainly could be.
    Of course that could be an unintended consequence of a badly drafted rule, it doesn’t in itself prove the meaning of the rule, but really I’m nit-picking and I agree with your overall argument. As a layman I find it hard to read the rules in a way that would make it necessary for Corbyn to get nominations, and I think Corbyn supporters would have every right to feel aggrieved if he was prevented from standing.
    The questions I would have are
    1) if the NEC considers the matter and makes a ruling that the rules should be interpreted in a particular way, I’m guessing that in order for a court to overturn the decision it would have to find that the decision was obviously perverse, not just that on balance the rules should have been interpreted differently?
    2) Do you think the rule change in 2010 (or any other rule change) is sufficient for the precedent set by Kinnock having to get nominations when challenged by Benn not to be relevant?

    • Phil
      Posted 11 July 2016 at 13:06 | Permalink | Reply

      I think the decision would have to be found to be ‘unreasonable’, which is a notoriously high bar – so getting it through the NEC could be seen as the end of the matter, if you were particularly ruthless, unconcerned with bad publicity & didn’t have voters to worry about (>cough<mandelson).

      I think the 2014 change – the move to an expanded electoral college – is enough to invalidate any appeal to 1988 as a precedent; it's manifestly not the same system. If we're not citing precedent but drawing lessons from the past in a non-binding way, we could also point to the 1993 introduction of different thresholds for vacancies & challenges, which suggests that incumbents should be treated differently from challengers.

      • andrew adams
        Posted 11 July 2016 at 14:29 | Permalink

        There are signs they might actually be preparing to do it though. Which, apart from the principle of it, might make it a bit awkward for those of us who were telling Corbyn supporters last week that this isn’t just some Blairite stitchup.

  2. Posted 12 July 2016 at 17:54 | Permalink | Reply

    I wonder whether it’s really as complicated as you make it seem? When Benn snr. got the electoral system changed to enable the ordinary members of the party (not then including a vote for anyone willing to hand over £3 and become a ‘supporter’) to have a say in the choice of leader, the PLP certainly didn’t surrender the whole right of choice to the membership, keeping none for itself. The threshold requirement that ensures that the membership can’t vote for a candidate who lacks the support of a given percentage of Labour MPs is obviously designed to ensure that the leader of the party in parliament can’t be someone in whom hardly anyone in the PLP has confidence. Since the leader’s principal role is to lead the parliamentary party, to bring about victory for the party in a general election and to serve as prime minister when the party wins an election, this requirement of a reasonable level of PLP support is indisputably essential. If that’s accepted, it follows as night follows day that the requirement must apply to +all+ candidates, including both challengers and incumbent. If the NEC perversely decides to give Jeremy Corbyn a highly controversial and novel exemption from the threshold rule, we face the near-certainty that the present grim deadlock will continue indefinitely, with a leader incapable of leading or of fulfilling the most central obligations of his position. We shall have to endure the misery and frustration of this stand-off right up to the next election when Labour will clearly be wiped out, quite possibly for ever.

    The logic of the threshold requires +everyone+ on the ballot paper to have passed the test of a minimal level of support in the PLP, with no exemption for the incumbent. Unless that principle is firmly upheld today, we are faced with the hijacking of the Labour party as a parliamentary force by a hard left group which is interested primarily in making Labour a mass movement of protest and agitation, no longer a party with any claim to form or even lead a government. I can’t see such a prospect as anything but a full-blown tragedy for Britain, on a par with the folly of UK participation in the criminal folly of Iraq, the blundering misjudgements leading to the unnecessary referendum leading in turn to Brexit, and Suez in 1956. The name of Corbyn will join those of Eden, Blair and Cameron in the British Hall of Infamy. Neil Kinnock showed true leadership, courage and flair when he defeated Militant’s attempt to take over Labour. Now the contemporary version of Militant has already captured the leadership of the party and is set to succeed where they failed at the first attempt. It’s not quite too late, but very nearly.

    • gastro george
      Posted 12 July 2016 at 18:31 | Permalink | Reply

      Am I right to presume that you showed similar fervour when the Progress clique took over the party and followed Tory-lite policies during the Blair era and subsequently?

      I think the SWP et al would be shocked to know that there are hundreds of thousands of Trots in the country.

      • Posted 12 July 2016 at 21:17 | Permalink

        No, of course most of the hundreds of thousands of people recruited as members or supporters in order to vote for Corbyn are not Trots. But Trotskyite is a fair description of the relatively small group of people who have recruited them in order to win the leadership for Corbyn, the first step in the hi-jacking of the whole party — its name, assets, organisation, facilities — to convert it into a mass protest and agitation movement, with no serious interest in its parliamentary functions or in putting it in a position to win an election and form a government. The thousands of new recruits can be assumed to be unaware that they are being used for these semi-secret purposes; they think that Jeremy Corbyn represents something called the new politics, that he is more ‘sincere’ than other politicians, and that he can embody their idealistic hopes and aspirations in some undefined way. The majority of elected Labour MPs are rightly determined to resist this attempted takeover and transformation of the party into a mainly extra-parliamentary ‘movement’, the exact opposite of what the party was founded to do (and what each of them was elected for), and a grotesque betrayal of all those in society who need the protection and championship of a Labour government. But the resistance now looks likely to be too late.
        I am not completely convinced that Mr Corbyn himself fully understands the purposes for which he is being used. I wonder whether his instincts as a democratic socialist and veteran member of parliament may have been making him want to stand down for the sake of the Labour party and the country, but that his minders have not allowed him to do so, since his survival as leader is essential to their strategy. That is the most charitable interpretation for his behaviour.
        However, the NEC has funked its duty to insist that Corbyn’s candidature must pass the same test for eligibility to stand for election as anyone else, so he will be able to stand against Angela Eagle and any other challengers, and presumably he will win by a huge majority. This will bring us back to the present deadlock and paralysis, which will lead either to an irreparable split in the party, precluding any hope of a Labour government for a generation, or continuing ineffectiveness until utter annihilation for the party at the next general election. Either way it looks very much as if as a result of the NEC’s perverse decision, the Trots are going to win. This will be almost as tragic an event for Britain as Brexit.

      • Phil
        Posted 12 July 2016 at 23:01 | Permalink

        Good heavens, Brian, if it’s not the recruits themselves and it’s not Corbyn, who do you think these Trots are? I can think of several Trotskyist groups currently active in Britain (seven off the top of my head); their total membership is in the low four figures, and I can only think of one person even tangentially connected with Corbyn who’s a member of any of them (and he’s a member of one of the smallest and most ineffectual).

        I do think there’s a project to turn the Labour Party into a membership-driven mass movement. There’s nothing conspiratorial or ‘semi-secret’ about it; it’s been there to see ever since Corbyn was elected. I support it, partly because I think a democratic political party with a mass movement behind it has a much better chance of forming a reforming government.

        On your previous comment, the argument for fairness as between candidates is the best argument for the ‘All Nominations’ interpretation of the rules, but – as I think I showed in the post – this interpretation runs against the history of the development of the rules (it would require us to believe that, when Neil Kinnock implemented the 20% threshold, he intended it to make it easier to overthrow unpopular leaders) and could produce obviously perverse outcomes.

  3. Igor Belanov
    Posted 12 July 2016 at 19:43 | Permalink | Reply

    @ Brian Barder

    “Neil Kinnock showed true leadership, courage and flair when he defeated Militant’s attempt to take over Labour.”

    Militant had relatively little strength outside of Merseyside, where they achieved a great deal of influence because the local Labour Party had been corrupt and virtually moribund, and because they actually promised and achieved some important reforms that were appreciated by working people. Kinnock’s rather sordid motive in attacking Militant was to choose an easy target in order to prove his ‘manliness’ and establishment credentials to the Tory press.

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