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.