High Court upholds Labour NEC ruling that Leader can contest election


In a case described by the Judge as “about as unusual a case as can be imagined” in the High Court, Foskett J has handed down judgment in the Labour Leadership election case, Foster v McNicol and Corbyn [2016] EWHC 1966 (QB).  Mark Henderson and Keina Yoshida, instructed by William Sturges, were instructed by the Labour Party (acting through its General Secretary, Iain McNicol) to defend the ruling of its National Executive Committee (NEC) against the challenge brought by Michael Foster, represented by Gavin Millar QC and Sarah Hannett. Martin Westgate QC and David Lemer, instructed by Howe & Co, acted for the present Leader, Jeremy Corbyn, who successfully applied to be added as a party.


The Judge explained that “This case raises the question of whether the NEC was correct in the decision it reached that Mr Jeremy Corbyn MP, the current Leader and … Leader of HM Opposition, should be entitled to take part in the forthcoming leadership ballot “automatically” without the need to obtain nominations from the … PLP [Parliamentary Labour Party]”. (para 1). He stated that “It is plain that an urgent decision on the Claimant’s challenge is required if [the leadership election] timetable is to be met [though] Mr Mark Henderson, who represents the First Defendant, indicated that the NEC would respect and comply with the decision of the court and that the current electoral process was not irreversible.” (para 7). He added that the case was of “considerable importance to the Labour Party and Mr Corbyn” and “equally obvious that it may have significant political implications, both in the short and longer term” but that the Court was “wholly uninfluenced by political considerations or indeed by media or other comment on the issues to be considered.” (para 10)


The Judge recorded that at the special NEC meeting on 12 July 2016 to rule on the question, the General Secretary tabled advice including two separate opinions by barristers instructed by the Party to advise on the legal position, Mark Henderson and James Goudie QC: “Mr Henderson … prepared an Advice dated 13 April 2016... In a nutshell, he concluded that an incumbent leader who has not resigned does not require nominations and is automatically to be included on the ballot paper… Mr Goudie … took the view that [the rules] did not provide an incumbent Leader with any special provision...  He disagreed with the result of Mr Henderson’s analysis…”  (para 31-33). The Judge said of “the view of the majority” of the NEC (which voted 18 to 14) that  “The true basis upon which each individual member of the majority reached his or her decision may be debatable, but if they were following the legal opinions put forward, … must be taken to have followed the view of Mr Henderson...” (para 35).


The Judge’s own conclusion on the “crucial primary issue, namely the natural and ordinary meaning of the relevant rules” (para 36) was as follows: “a fair reading of [the rules] reveals a natural and ordinary meaning that seems to me to be entirely clear … [that] the Leader would not … be someone who was a “challenger” for the leadership and, accordingly, would require no nominations in order to compete in the ballot to retain his/her position as Leader… I believe that this would be the natural impression that they would make on the ordinary, objective member of the LP to whom, of course, the rules are in effect addressed.  I say “objective” to distinguish the LP member who for political reasons wants to believe the words mean what he or she wants them to say from the person who takes a detached view of the position… My conclusion [on] the natural and ordinary meaning of [the rules] means that I am satisfied that the NEC also reached the correct legal conclusion in respect of that provision. They were right to conclude that Mr Corbyn was entitled to be on the ballot paper without the need to obtain any level of nominations.” (para 50-54).


The Judge considered that this case involved a “fundamental issue of interpretation of the rules … which required a conclusion of law [on which the NEC] is either right or wrong … and a member… has the right to ask the court for its decision”. (para 57).  However, he emphasised that “I do accept unreservedly that where a decision, certainly about the application of any rule that is ambiguous, requires consideration of background material beyond the precise words used in the rule that has significant political connotations, the NEC may well be better placed than the court to consider those implications and to decide accordingly.  In this case, had it been necessary …, the court would have found itself in the midst of what Mr Henderson correctly characterised as “intensely political” considerations…  I highlight the issue because it brings clearly and vividly into focus the importance of recognising the vital dividing line between the world of politics and the world of the law.” (para 59). He added that “Mr Henderson suggested that it is possible that those responsible for the drafting of the rules never foresaw that the situation that has arisen recently might arise.  It is not for me to speculate, but if he is right, it is not for the court to try to re-write the rules to provide a solution.  The responsibility for that lies elsewhere.” (para 72).


He expressed his appreciation to all the legal teams involved for their submissions, industry and efficiency. (para 8, 73). Handing down his reserved judgment, the Judge observed that “Anyone with an interest and listening to the arguments will recognise that this is as unusual a case as one can imagine and as I have ever had and may ever have again.” Remarking on the rarity of such a large audience in court, including, he noted, a former Lord Chancellor, he took “the opportunity to blow the trumpet of the Queen’s Bench Division” as presiding judge, for the way this challenge had been case managed from issuing to final hearing within two weeks and from hearing to judgment in two days. 


Read the Judgment and the Court’s summary.


BBC media coverage can be read here and here, as well as in the Guardian here.


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