He really hasn’t thought this one through

The reports earlier this week that Jeremy Corbyn would refuse membership of the Privy Council if heâ€™s elected leader of the Labour Party would be more than a symbolic gesture against a seemingly anachronistic body; it would be a serious strike against the countryâ€™s unwritten constitution.

Westminster is governed by rules evolved by gentlemen for gentlemen and the fact that the Commons is populated by professional politicians rather than the gentlemen amateurs of the eighteenth- or nineteenth-century sense has done little to change that. It is one of the principle reasons why much of the constitution remains uncodified: those applying it understand the limits of whatâ€™s acceptable without needing to write it down.

The relationship between the prime minister and the leader of the opposition is a good case in point. While they are publicly obliged to disagree on most policy, and while one is after the otherâ€™s job, the PM should be able to brief his opposite number (or authorise such briefings) on sensitive questions. It is what lies behind the whole concept of a loyal opposition.

In reportedly rejecting the vehicle through which such briefings are made â€“ and are made legal â€“ Corbyn would deliberately be placing himself outside that framework and refusing to be bound by its rules. In essence, he would be rejecting the idea that his is a loyal opposition.

There may be some who might be relieved that an individual whoâ€™s gone out of his way to cultivate connections with some questionable individuals couldnâ€™t expect the sort of access a Leader of the Opposition would normally receive. That would be to miss the point. Once you reject the unwritten rules of the game, what rules is the game being played by? To reject the self-restraint implicit in the unwritten code (and explicit in the Privy Council oath), invites the government to assume the worst: that the opposition wishes to do more than defeat it, it wishes to destroy it â€“ which in turn legitimises the government doing whatever may be necessary to prevent that. The Privy Council may be an anachronism on one level but on another itâ€™s the Westminster club which by bringing together members of all mainstream parties prevents the descent down the slippery slope of equating opposition with treason thatâ€™s all too common in immature democracies.

Historians may argue that the situation isnâ€™t so bad; that thereâ€™s precedent, which indeed there is. Ramsay MacDonald had to be sworn in as a Privy Councillor immediately before being appointed prime minister in 1924. However, that was several decades before it became standard practice for leaders of all the main opposition parties to be automatically appointed to the Council. Indeed, it was only just about the time that the concept of a single permanent Leader of the Opposition was becoming established. Thereâ€™s also a substantial difference between not being offered membership and not accepting it.

Not that he could necessarily reject an appointment for ever. Chances are that Corbyn is unelectable, that even if heâ€™s elected next month he may well not see it through to the election and if he does then heâ€™ll lose. Letâ€™s assume the alternative though. The Promissory Oaths Act 1868 requires the prime minister (and other cabinet ministers) to be Privy Councillors. If Corbyn is serious about wanting to be PM, heâ€™d have to take the Oath then, so why not take it now? Alternatively, would he really precipitate a constitutional crisis by refusing and so being literally unappointable?

My guess is that he hasnâ€™t thought it through that far and that if it came down to it, heâ€™d do what was needed. Nonetheless, these kind of gestures carry far more weight when they come from the Shadow Prime Minister than from a backbench MP. As games go, itâ€™s a dangerous one for all concerned.

David Herdson