Up to 130,000 new Labour members to be barred from voting in contest between Jeremy Corbyn and Owen Smith after court of appeal ruling

Labour’s ruling body has won its bid to overturn a high court decision allowing new party members to vote in the forthcoming leadership election, a ruling that could bar tens of thousands of supporters of Jeremy Corbyn from voting in the ballot.

The ruling by three court of appeal judges, Lord Justice Beatson, Lady Justice Macur and Lord Justice Sales, will mean 130,000 new members who joined less than six months ago will not be able to vote in the forthcoming poll between Corbyn and Owen Smith for the Labour leadership.

Corbyn’s campaign condemned the decision as wrong “both legally and democratically”, warning that it threatened to disenfranchise members who were explicitly told upon joining the party that they would have a vote in any leadership election.

“Crucial to the outcome today was the introduction of a new argument by the Labour party HQ’s lawyers, who invoked an obscure clause in the Labour party rules (chapter 4, clause II, 1A), which could be read as giving the NEC the right to ignore all of the rules laid out for leadership elections,” a campaign spokesman said.

“In other words, this is a ‘make it up as you go along’ rule. We do not think that making it up as you go along is a reasonable way to conduct democracy in our party.”



The protracted legal battle over voter eligibility in the election entered a new phase when the Labour party’s general secretary, Iain McNicol, appealed against an earlier ruling that in effect sanctioned Corbyn’s decision to allow new members to vote. The process has seen the extraordinary situation of Labour’s ruling body and its leader on opposite sides of hearings in the high court and court of appeal

Acting on behalf of the party as a whole, McNicol appealed against an earlier ruling that found in favour five new Labour members, who challenged a decision by the national executive committee to ban new members from voting. McNicol argued the NEC had the power to define eligibility to vote in the Labour leadership election.

The five Labour party members – Christine Evangelou, the Rev Edward Leir, Hannah Fordham, Chris Granger and “FM”, a teenage member – must pay £30,000 towards the NEC’s costs, which are £60,000 in total, within 28 days. Permission to appeal to the supreme court has been denied, but an application could still be made directly by the appellants.

Announcing the decision, Beatson said: “On the correct interpretation of the party rules, the national executive committee has the power to set the criteria for members to be eligible to vote in the leadership election in the way that it did.”

Paddy Lillis, chair of the Labour NEC, welcomed the ruling. “The party has said consistently throughout this process that we would defend vigorously the decisions of the NEC. It was right that the party appealed the judgment, just as we would have appealed if the court in the previous case did not uphold the NEC decision that the incumbent leader of the Labour party did not require nominations.



“It is crucial to the Labour party that our governing body has the authority to debate, decide and implement the procedures, timetable and voting eligibility for our internal elections and selections.”

Leir, one of the five who sued the party, said: “This case was always about fairness and inclusion, which won in the high court on Monday with a clear and firm judgment. It is a hugely disappointing result for me and probably for the 130,000 members similarly excluded. I am very grateful for everyone, including the 2,000 donors who have supported our fight over this matter so far.”

Corbyn’s campaign team said: “Serious questions must be raised over why and how the NEC procedures committee brought this appeal. In doing so, it effectively risked new members’ money on an attempt to disenfranchise them. If we are to build a big, inclusive party to take on the Tories, we need to secure democracy in our party.”

David Goldstone QC, acting for the new Labour members, had argued the powers of the NEC were merely procedural and any reference in the rule book to “eligibility” of members to vote was intended only to cover exceptional circumstances where there may be gaps. However, the judges said that was not the case.

“We reject Mr Goldstone’s suggestion that this provision is only intended to cover situations where there are gaps in the rules which create uncertainty, such as in relation to individuals whose membership lapses,” the judges said. “The language used in the provision is entirely general and is not limited in that way.”

The court accepted that, in ordinary language, a “freeze date” could be retrospective. “A ‘freeze date’ for an election is simply the date by which a particular state of affairs must exist in order for a person to be eligible to vote. It necessarily will mean that some members have voting rights while others will not. We do not consider that there is anything in the ordinary meaning of the term which suggests that it can only be prospective.”

McNicol has faced widespread pressure for challenging the high court ruling, where Mr Justice Hickinbottom ruled that denying new members a vote would amount to breach of contract.

One senior Labour source said before the ruling that McNicol’s position would become untenable were the party to lose again.

Diane Abbott, the shadow health secretary and close Corbyn ally, said she did not think McNicol would resign. “I don’t think he’s going to walk away,” she told BBC Radio 4’s Today programme. “The general secretary serves at the will and pleasure of the NEC and that’s a matter for them, not for MPs.”

Corbyn and Smith clash over future of Labour in leadership debate Read more

About 130,000 new members joined in the weeks running up to the Labour leadership challenge by Angela Eagle, who then dropped out of the race when more MPs backed her rival challenger Smith. Corbyn and Smith’s camps are both firmly of the view that the majority have joined to support the current Labour leader.

The imposition of a freeze date so that full members would not be able to vote if they had not had continuous party membership for at least six months was decided on 12 July, in part to reduce the administrative burden of verifying thousands of new members.

However, McNicol’s evidence at the court of appeal made it clear Labour was concerned about a subversion of the voting process, with members joining with the sole purpose of voting in the election rather than participating in the party more widely.

Lawyers for the five argued that the NEC had no power under the rules to retrospectively freeze a full member’s ability to vote in leadership elections.

At the hearing on Thursday, Clive Sheldon QC, acting for McNicol, told the judges there was “nothing in the [party] rulebook [that] says a freeze date cannot be retrospective … That is entirely an operational matter which must be left to the NEC to determine because it knows the state of the party”.



The NEC needed to be able to “look at the circumstances that arise and then determine the date”, he said.

Goldstone said members signed up with “an existing contractual right confirmed by the rules to vote in leadership elections” and argued there was a danger if the NEC had sweeping powers for retrospective exclusion and disenfranchisement. “There is a scope for abuse and the rules … should not be construed in a way that makes that possible.”

Goldstone indicated in court after the judgment was given that the supreme court had made some tentative steps to anticipate a potential hearing next Tuesday, should one be required.