The legal position was supposed to be “clear.” Everybody seemed to say so. The prolific tweeters who support Jeremy Corbyn said the position was clear. The QCs who offered their opinions said it was clear. Perhaps even Jeremy Corbyn and his allies thought it was clear.The dispute, which now appears to have been resolved, was about whether the Labour Party’s National Executive Committee (NEC) could exclude the party’s incumbent leader from the leadership ballot. The party rules said—and here there is no doubt—that any challenger would need to have a certain amount of nominations in order to feature on it.
The problem was that the rules did not mention the requirements for the incumbent. There was silence. But this did not deter the Corbynistas on Twitter and elsewhere. Quoting the requirement that a challenger should have a certain number of nominations, they insisted that it was “clear” an incumbent leader would not need to obtain nominations. It was “clear” that the leader’s name should be included automatically.
But it was not clear. There was no express provision as to what requirement an incumbent leader should meet. One could perhaps infer that this meant it was a foregone matter: of course, his name should go forward. But one could also point to other parts of the rules—which gave the NEC a duty to be fair and a degree of discretion. It could be that it was open to the NEC to require, in the name of fairness, that Corbyn meet the same requirements of any other candidate.
Had it been decided that Corbyn did in fact need to seek MPs’ nominations, a legal challenge may have been mounted by his supporters. One could imagine a court going either way. It was not impossible to imagine a court saying that it was implicit that either the leader should have an advantage or that the leader should be treated in the same way as anyone else. The most probable outcome is that a court would defer to the NEC whichever way it jumped.
In the end, it appears there were five legal opinions provided to the NEC, three on one side and two on the other. This evidences that it was not, in fact “clear.” The NEC went with the automatic inclusion of the leader after hours of debate. But it was not a quick or easy decision.
Political problems ultimately should have political solutions, and not legal ones. The issue of who should lead a political party is one of the most purely political problems you can have. It was good that there was no rush to court to launch proceedings. A legal decision would not have satisfied the losing side.
And there is a more general point: political certainty cannot be simply projected on to legal issues. Just because you want something to be clear, it does not make it free from doubt in a court of law. Those who ask political questions may not like the legal answers—or lack of answers. Litigation is not often the solution to any problem, and to political problems it is rarely ever a solution.