Don’t rely on the courts
Mike Macnair considers the likelihood of a legal challenge to Labour’s NEC
Before the national executive committee’s decision that under Labour Party rules Jeremy Corbyn was entitled to be on the leadership ballot without having secured nominations from MPs and MEPs, the NEC is reported to have received a ‘letter before action’ from Unite threatening legal action if it decided the other way.1
At the time of writing, it remains to be seen whether the right wing will launch a legal action to overturn the decision. It may well not. Laura Kuenssberg on BBC news comments: “There may yet be a legal challenge to tonight’s decision, but it is unlikely to have much success.”2 Rachel Sylvester, presumably speaking for Murdoch, argued in TheTimes that the right should not attempt to exclude Corbyn from the ballot:
If he is beaten fair and square in a contest by the moderates, then they can reclaim the party and take it back to electability [meaning acceptability to Mr Murdoch - MM]. If he wins, then the moderates will have tested to destruction the idea of saving Labour from within. It will then be time to start again with a new party …3
The political point is that, after the NEC voted that Corbyn will be on the ballot, litigation would delay the whole process in addition to presenting the right as guilty of - in Len McCluskey’s phrase - a “sordid fix”.4
Even if such a challenge from the right is not forthcoming, the role of reported legal advice in this story is nonetheless constitutionally important. There is an elaborate report of the NEC on the Huffington Post, which includes discussion of this:
At this point, party general secretary McNicol … said he had the legal advice on the issue.
McNicol then distributed to the NEC three written legal opinions with varying viewpoints. The first was from GRM Law, a firm that carries out property and constitutional work for the party. It concluded that nominations would be needed by a sitting leader.
The next was by Mark Henderson, who had concluded that Corbyn should automatically go on the ballot. The other was a previously unseen legal opinion by James Goudie QC, which advised the opposite. Unite delegates distributed their own legal opinion from Michael Mansfield QC.
In a move that sparked protests from some present, McNicol invited only Goudie to present his case to the room. Unite and other union delegates objected, calling for Henderson to be allowed to present his case too. A vote was held, and pro-Corbyn supporters lost again.
The motion that “the NEC should invite further legal opinion from Michael Mansfield QC and Mark Henderson” was defeated by 19 votes to 13. At this point, some Corbynistas began to think it was not their evening.5
We are not, of course, given the reasons offered by any of these lawyers. It would be particularly interesting to see those offered by GRM Law and by James Goudie QC; because to my eye as a merely academic lawyer the Labour Party rules seem obviously to say that in the case at hand the sitting leader does not need parliamentary nominations. The rules in question are found at chapter 4, ‘Election of national officers of the party and national committees’, clause II, sub-clause 2, ‘Election of leader and deputy leader’, sub-sub clause B, ‘Nomination’, sub-sub-sub-clauses i and ii:
i. In the case of a vacancy for leader or deputy leader, each nomination must be supported by 15% of the combined Commons members of the [Parliamentary Labour Party] and members of the [European Parliamentary Labour Party]. 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% of the combined Commons members of the PLP and members of the EPLP. Nominations not attaining this threshold shall be null and void.
The drafting is, in my opinion, perfectly clear and unambiguous - what the European Union law specialists call acte clair. Two separate cases: sub-sub-sub-clause II.2.B.i deals with the case where the existing leader has died or resigned;6 sub-sub-sub-clause II.2.B.ii deals with the case where a challenge is mounted to a sitting leader. The first case requires all candidates to have nominations from 15% of the PLP and EPLP; the second case requires the challenger only to have nominations from 20% of the PLP and EPLP.
It could, I suppose, be argued that the general clause at the beginning of chapter 4, I, ‘General principles’, should affect the interpretation:
Internal party elections for officer posts and the membership of national committees shall be conducted in a fair, open and transparent manner, in accordance with the constitutional rules of the party and any appropriate NEC guidelines.
But, given that the sub-sub-sub-clauses quoted above seem perfectly clear, it is not obvious how these general principles could alter the clear, specific rules - leave aside the obvious circumstance that excluding Corbyn would plainly reduce the “fair, open and transparent” character of the election.
The whole structure of these rules is, of course, a gerrymander in favour of the Parliamentary Labour Party. But the use of separate rules for vacancy and challenge is perfectly rational in this context. In the real world defections to the right, purges and central apparatus control of selections between 1983 and 2015 eliminated the large bulk of the old left wing of the PLP, leaving behind only a small residual left. But suppose, for the sake of argument, that this was not the case and the PLP was more evenly divided. The drafters clearly aimed to discourage leadership challenges and to let the sitting leader ‘get on with the job’ rather than being distracted by challenges.
The constitutional question posed is then: how seriously (if at all) should labour-movement bodies take the advice of lawyers?
The legal position is quite limited. ‘Trustees’ - a large class, which includes many officers of labour-movement bodies - are under a duty to take ‘proper professional advice’ in relation to the investment of trust funds. Beyond this, their position is similar to that of solicitors: that reasonable reliance on the legal advice of counsel, (ie, the advice of barristers rather than of solicitors, let alone of accountants or of academics), will be a defence in proceedings for losses caused by breach of trust. Solicitors can use similar arguments in claims for professional negligence, but are required in addition to exercise their own independent judgment, and hence to reject counsel’s advice if it is “obviously or glaringly wrong”.7 But how, then, are ‘trustees’ supposed to act when presented - as they were on July 12 - with conflicting opinions of counsel?
The issue has been more extensively discussed in the USA than here. Way back in 1961 an article in the Yale Law Journal discussed whether reliance on the advice of counsel could be used as a defence in all sorts of contexts, including criminal liability. More recently, William H Simon’s 2007 paper, ‘The market for bad legal advice’, pointed out that clients might seek advice which was fairly plainly wrong, but could be used to affect other people’s behaviour in the client’s interest; Simon raised the underlying issue that in the context of advice to clients, there are no satisfactory sanctions against the lawyer who gives misleading advice.8 Given Simon’s points, it is probably arguable that merely as a matter of law the advice of counsel should generally be treated less seriously than it currently is.
On this side of the pond Simon’s article is cited with approval by Claire Coe and Steven Vaughan in a 2015 report for the Solicitors Regulation Authority on the pressures large corporate clients have recently begun to put on their solicitors in relation to ‘terms of engagement’. And at the larger theoretical level, David Howarth’s book, Law as engineering, argues that lawyers devising contracts and new forms of financial derivatives for clients should regard themselves as under ethical obligations analogous to those which affect engineers designing bridges which later fall down, aircraft which later fall out of the sky, and so on. Again, this sort of ethical counter-pressure to client interests is absent, and this too is a reason for not taking legal advice too seriously.9
These objections are exacerbated by the constitutional implications. This is that, the more seriously legal advice is taken, the more the views of lawyers become an iron cage, which limits the possibilities of political democracy. Moreover, the more the advice of counsel is treated as dispositive, the more it can operate to change the law, without either proceedings in parliament or even being tested in adversary argument in law courts.
The underlying tendency, however, is the opposite to caution about the reliability of ex parte (one-sided) legal advice. Rather, local councillors, trade union and labour officials, and so on are increasingly pressed to take legal advice and for the advice taken to limit their decisions.
I made this point back in 2007 in the context of the legal advice relied on by the University and College Union to rule out boycott campaign resolutions in relation to Israel-Palestine.10 I commented then:
The advice itself has not been published. UCU members, at least, should have the right to see it. It would then be possible to judge whether it has any real legal value.
Back in 1729, attorney general Philip Yorke and solicitor general Charles Talbot were asked for legal advice by a group of slave traders as to the status of slavery in English law. Their opinion asserted flatly that slavery was a part of English law and that a slave did not cease to be a slave by coming to England. They cited no legal authority whatever for their claims, and, in fact, these claims were flatly inconsistent with legal precedents before the date of the opinion. The Yorke-Talbot opinion was legally worthless: but it made law for 30 years or more before it could be directly challenged. ‘Legal advice’ can thus be dangerous: and it is all the more dangerous where the reasoning is not disclosed.
It is interesting in this context that, when the UCU case was actually heard, the industrial tribunal, though polite about the advice, rejected out of hand the claim that entertaining boycott motions was anti-Semitic as being, in substance, trying to do politics through the courts. The complainants in the case seem not to have attempted to appeal to the Employment Appeal Tribunal, but merely to have groused about the decision (all over the web) and used the media’s willingness to use any stick to beat Corbyn to revive their censorship proposal in the form of Labour’s supposed ‘anti-Semitism problem’. Enthusiastic ‘anti-BDS’ legal advice in this case led to a lot of actual legal costs being wasted.
As I said at the outset, there is still a risk that the right wing will go for legal action to demand that Corbyn be excluded. And, if they go ahead with this, there is a risk that the court will decide to exclude Corbyn. However, the reading of the rules under which Corbyn is included seems to me, as I said, to be completely obvious. But legal ingenuity is quite capable of obfuscating the obvious, where there is a pressing interest of capital or of government, or even merely of small landlords, in doing so. Thus, for example, in Tiensia v Vision Enterprises (2010) the Court of Appeal, by a 2:1 majority, wrecked the recently passed legislation requiring landlords to place tenants on a secure deposit scheme, on the ground that the obvious interpretation of the act was unfair to landlords.11
What the outcome of litigation on the Labour Party rules would be might therefore not depend on ‘obvious’ legal readings, but on who was sitting as judges and what they thought was the best result on political grounds. In fact, this is probably a reason not to expect a challenge from the right; as The Times points out, for the right to operate in a way which appears to set up procedural scams to exclude Corbyn from the ballot threatens a descent into “intimidation”, “violence” and public disorder. Such reasoning would make the court likely to find reasons not to accept a rightwing legal challenge to the NEC’s decision ...
What should the labour movement’s attitude be to such accusations? The answer is, in fact, rather simple. The PLP and the party apparatus have for the last 33 years been in the habit of bullying those below them, by using their special access to the press and control over the levers of power within the party. Witness, for example, the ejection of Walter Wolfgang from the 2005 Labour Party conference. Now the bullies are under threat of losing control and they complain that they are being bullied. That they should be ‘intimidated’ into giving up these bullying operations is precisely what is needed.
1. www.theguardian.com/politics/blog/live/2016/jul/12/labour-nec-jeremy-corbyn-leadership-from-labour-leadership-ballot-would-be-sordid-fix-politics-live?page=with:block-5784a8f9e4b0630007c6b94f at Tuesday 09.33.
3. ‘Corbyn’s Labour must be tested to destruction’ The Times July 12 2016. The Times first leader for July 13 takes the same line.
4. Above note 1 at Tuesday 09.22.
6. Or become ‘permanently unavailable’ for some other reason, as discussed in sub-sub-clause II.2.E a little further on - ie, presumably, been jailed, been certified and confined as a mental patient, or been captured during a foreign visit and held as a hostage by terrorists.
7. Locke v Camberwell Health Authority  2 Med LR 249.
8. Anonymous, ‘Reliance on advice of counsel’ Yale Law Journal Vol 70 (1961), pp978-94; WH Simon The market for bad legal advice:academic professional responsibility consulting as an example October 22 2007: https://core.ac.uk/download/pdf/13553197.pdf.
9. C Coe and S Vaughan, Independence, representation and risk (October 2015): www.sra.org.uk/documents/SRA/research/independence-report.pdf; Howarth, Cheltenham 2013, chapter 4.
10. ‘Boycotts and working class principle’ Weekly Worker October 10 2007.
11. England and Wales Court of Appeal, Civ 1224, 2010.