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Could Labour's rule book be used to keep Jeremy Corbyn off a leadership ballot?

An ambiguous clause gives hope to the Labour leader's opponents - and fear to his supporters. Jolyon Maugham looks at the legal arguments.

It’s frequently suggested that there may be a way out for Jeremy Corbyn’s opponents in the parliamentary Labour party – one that offers, to them, the tantalising prospect of being able to oust him without reference to the members, affiliated supporters and registered supporters who put him in.

It’s ugly – no doubt – but, say its proponents, Corbyn’s leadership threatens the very existence of the Labour Party. And, in such moments, anything which improves the prospects of the party’s survival is not only justified but necessary.

All well and good – but does the idea stand up?

Here are the relevant bits of Rule Four:

2. Election of leader and deputy leader

a. The leader and deputy leader shall be elected separately in accordance with rule C below, unless rule E below applies.

b. Nomination i. In the case of a vacancy for leader or deputy leader, each nomination must be supported by 12.5 per cent of the Commons members of the PLP. 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 Commons members of the PLP. Nominations not attaining this threshold shall be null and void.

iii. Affiliated organisations, the ALC, Young Labour, and CLPs and Labour Members of the European Parliament may also nominate for each of the offices of leader and deputy leader. All nominees must be Commons members of the PLP.

So the argument is that when the PLP is in opposition there must be an annual election of a leader (see 2.D.i.); where there is no vacancy (because there already is a leader), nominations must be supported by 20 per cent of the PLP (2.B.ii); and once there is a valid nomination an election is triggered and everyone (including the leader) would need the consent of the PLP to get on the ballot.

Now, I profoundly believe that Corbyn’s road is not the road to government; and I no less profoundly believe that it is the role of the Opposition to seek to be in government. I make these points only by way of explaining that such bias as I have is against Corbyn continuing as leader. But it is tolerably clear – not perfectly but tolerably clear – to me that he can’t be seen off by this mechanic.

What’s the starting point to understanding why?

The proponents are contemplating a world in which Corbyn has no wish to stand down; in other words, we already have a leader. So it’s Rule 2.B.ii that applies: where there is no vacancy, nominations can be sought by “potential challengers” who must obtain the support of 20 per cent of the PLP.

But the rule explicitly provides where there is no vacancy that it is only “potential challengers” who must pass this threshold. There is no provision requiring the existing leader to pass this – or indeed any other – threshold. It has been suggested in the Times that Corbyn might have to pass the 15 per cent threshold in Rule 2.B.i. But that Rule only applies where we have a vacancy for leader. And in the world we’re contemplating, we don’t. Moreover, the common-sense implication of a rule that requires potential challengers to seek the consent of the PLP to get on the ticket is that the leader doesn’t need to. If he - because sadly it seems always to be a “he” – needed the consent of the PLP you would expect the rules to say that.

Let’s call this the Express Argument.

The proponents’ best argument that Corbyn can be seen off through a mechanic exclusively at PLP level arises out of Rule 2.B.iv.

It requires “Nominees” to inform the General Secretary of their acceptance of their nomination in order to get on the ticket. And the word “Nominees”, read naturally, refers back to Rules 2.B.i and ii which talk of “nominations” needing the consent of members of the PLP. Putting the matter another way, if you don’t have the consent of the PLP you can’t be validly nominated; if you’re not validly nominated you can’t be a Nominee; and if you’re not a Nominee you can’t be on the ticket. So to be on the ticket Corbyn needs to be validly nominated. Call this the Implied Argument.

So there is something of a tension between the Implied Argument and the Express Argument.

Now, generally speaking you’d question your inference where there was an express rule to the contrary – after all you’re more likely wrongly to have inferred something from a reading of rules than for the draftsman of those rules wrongly to have expressed them.

But there are a couple of other pointers to this conclusion too.

First, there is no provision for an existing leader to be validly nominated. If the Implied Argument was right, Corbyn would need to pass some threshold. But what? The rules don’t stipulate one.  One might conclude that the reason why the rules don’t stipulate one is because there isn’t and there isn’t one because an existing leader doesn’t need to pass a threshold.

Second, it’s pretty clear that the rules use the word nominee and nominate rather loosely. For example, Rule 2.B.iii says that the ALC, Young Labour, CLPs and so on “may also” nominate for each of the offices of leader and deputy leader. But it can’t possibly be right that a nomination under Rule 2.B.iii is an alternative to a nomination under i or ii and privileged in terms of getting on the ticket without the support of the PLP. But that’s what (read literally) that rule seems to suggest. Rule 2.C (not reproduced above) also uses the word “nominee” interchangeably with “candidate” (compare, for example, 2.C.ix with x). Once you accept that the rules use the words “nominate” and “nominee” loosely it becomes difficult to imply anything concrete from the use of the word “Nominees” at rule 2.B.iv.

As I mentioned above, there is also a further argument advanced by proponents. It’s based on 2.D.i which says that, when the PLP is in opposition, the election of the leader “shall” take place at each annual session of Party conference. And that an election needs nominated candidates. But Rule D seems to me to be predicated on an election having already been triggered by the operation of Rule 2.B. No election? No operation of Rule 2.D.  

And you can test whether Rule 2.D really applies as the proponents suggest by asking what happens if there are no challengers. Does the leader really still have to seek the nomination of members of the PLP? Under what rule? And what happens if he doesn’t get that nomination? Is the Party left leaderless? And if the rules contemplate that the Party might be left leaderless through this reasonably predictable sequence of events, why do the Rules not provide for what then is to happen? After all, they provide for what is to happen if the Party leader becomes “permanently unavailable” (see Rule 2.E.iv).

So, in summary, the rules are plainly not perfectly drafted. But Courts are well used to taking a muscular approach to the interpretation of poorly drafted rules. And I don’t harbour much doubt about where they’d end up here. 

Jolyon Maugham is a barrister who advised Ed Miliband on tax policy. He blogs at Waiting for Tax, and writes for the NS on tax and legal issues. 

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Andy Burnham and Sadiq Khan are both slippery self-mythologisers – so why do we rate one more than the other?

Their obsessions with their childhoods have both become punchlines; but one of these jokes, it feels to me, is told with a lot more affection than the other.

Andy Burnham is a man whose policies and opinions seem to owe more to political expediency than they do to belief. He bangs on to the point of tedium about his own class, background and interests. As a result he’s widely seen as an unprincipled flip-flopper.

Sadiq Khan is a man whose policies and opinions seem to owe more to political expediency than they do to belief. He bangs on to the point of tedium about his own class, background and interests. As a result he’s the hugely popular mayor of London, the voice of those who’d be proud to think of themselves as the metropolitan liberal elite, and is even talked of as a possible future leader of the Labour party.

Oh, and also they were both born in 1970. So that’s a thing they have in common, too.

Why it is this approach to politics should have worked so much better for the mayor of London than the would-be mayor of Manchester is something I’ve been trying to work out for a while. There are definite parallels between Burnham’s attempts to present himself as a normal northern bloke who likes normal things like football, and Sadiq’s endless reminders that he’s a sarf London geezer whose dad drove a bus. They’ve both become punchlines; but one of these jokes, it feels to me, is told with a lot more affection than the other.

And yes, Burnham apparent tendency to switch sides, on everything from NHS privatisation to the 2015 welfare vote to the leadership of Jeremy Corbyn, has given him a reputation for slipperiness. But Sadiq’s core campaign pledge was to freeze London transport fares; everyone said it was nonsense, and true to form it was, and you’d be hard pressed to find an observer who thought this an atypical lapse on the mayor’s part. (Khan, too, has switched sides on the matter of Jeremy Corbyn.)

 And yet, he seems to get away with this, in a way that Burnham doesn’t. His low-level duplicity is factored in, and it’s hard to judge him for it because, well, it’s just what he’s like, isn’t it? For a long time, the Tory leadership’s line on London’s last mayor was “Boris is Boris”, meaning, look, we don’t trust him either, but what you gonna do? Well: Sadiq is Sadiq.

Even the names we refer to them by suggest that one of these two guys is viewed very differently from the other. I’ve instinctively slipped into referring to the mayor of London by his first name: he’s always Sadiq, not Khan, just as his predecessors were Boris and Ken. But, despite Eoin Clarke’s brief attempt to promote his 2015 leadership campaign with a twitter feed called “Labour Andy”, Burnham is still Burnham: formal, not familiar. 

I’ve a few theories to explain all this, though I’ve no idea which is correct. For a while I’ve assumed it’s about sincerity. When Sadiq Khan mentions his dad’s bus for the 257th time in a day, he does it with a wink to the audience, making a crack about the fact he won’t stop going on about it. That way, the message gets through to the punters at home who are only half listening, but the bored lobby hacks who’ve heard this routine two dozen times before feel they’re in the joke.

Burnham, it seems to me, lacks this lightness of touch: when he won’t stop banging on about the fact he grew up in the north, it feels uncomfortably like he means it. And to take yourself seriously in politics is sometimes to invite others to make jokes at your expense.

Then again, perhaps the problem is that Burnham isn’t quite sincere enough. Sadiq Khan genuinely is the son of a bus-driving immigrant: he may keep going on about it, but it is at least true. Burnham’s “just a northern lad” narrative is true, too, but excludes some crucial facts: that he went to Cambridge, and was working in Parliament aged 24. Perhaps that shouldn’t change how we interpret his story; but I fear, nonetheless, it does.

Maybe that’s not it, though: maybe I’m just another London media snob. Because Burnham did grow up at the disadvantaged end of the country, a region where, for too many people, chasing opportunities means leaving. The idea London is a city where the son of a bus driver can become mayor flatters our metropolitan self-image; the idea that a northerner who wants to build a career in politics has to head south at the earliest opportunity does the opposite. 

So if we roll our eyes when Burnham talks about the north, perhaps that reflects badly on us, not him: the opposite of northern chippiness is southern snobbery.

There’s one last possibility for why we may rate Sadiq Khan more highly than Andy Burnham: Sadiq Khan won. We can titter a little at the jokes and the fibs but he is, nonetheless, mayor of London. Andy Burnham is just the bloke who lost two Labour leadership campaigns.

At least – for now. In six weeks time, he’s highly likely to the first mayor of Greater Manchester. Slipperiness is not the worst quality in a mayor; and so much of the job will be about banging the drum for the city, and the region, that Burnham’s tendency to wear his northernness on his sleeve will be a positive boon.

Sadiq Khan’s stature has grown because the fact he became London’s mayor seems to say something, about the kind of city London is and the kind we want it to be. Perhaps, after May, Andy Burnham can do the same for the north – and the north can do the same for Andy Burnham.

Jonn Elledge edits the New Statesman's sister site CityMetric, and writes for the NS about subjects including politics, history and Daniel Hannan. You can find him on Twitter or Facebook.