Barrister: new Scots/Welsh Labour NEC members installed illegally

The background

The SKWAWKBOX has covered at length the complete disregard for party rules and procedures that were used by the Labour party’s right-wing faction, including voted-0ut NEC (National Executive Committee) members about to lose their power, to crowbar two additional members onto the NEC in order to maintain a right-wing majority on Labour’s ruling committee that had been democratically removed.

The measure was forced through at Labour’s 2016 Conference by pre-packing the rule-change in a single bundle along with good rule-changes – and demands for proper voting procedures to be followed were steamrolled by the Chair in order to make sure the committee-rigging was successful.

The rule-change allowed the leaders of the Scottish and Welsh Labour parties – both opponents of Corbyn – to appoint a member each to the NEC with no democratic process. Scottish leader Kezia Dugdale appointed herself, even while at the same time demanding autonomy for Scottish Labour, and immediately made her presence felt by swinging the vote for the new NEC Chair away from Corbyn’s preference.

Corbyn was able to restore a very narrow working majority via a skillfully-played reshuffle, but the absence of a single committee member could mean defeats of important measures, or the right-wingers being able to force through measures that would outrage the majority of Labour members.

The legal opinion

Informed Labour members who support the party’s new status as a genuine alternative to the austerity consensus understand that this situation is desperately damaging to the chances of a real change in the UK.

Now a highly-qualified barrister has delivered his opinion on the tactics used to crowbar the additional, unelected members onto the Committee and on the legality of their presence – and he is clear about the viability of legal challenge to the illegal imposition of two unelected members on the NEC’s democratic composition.

Duncan Shipley Dalton LL.B (Hons) LL.M CPLS MPA (Harvard), Barrister-at-Law (7 years’ experience but not currently practising), has analysed the legal situation and his verdict has been passed to the SKWAWKBOX by the excellent Shadow NEC blog. Emphases are added by the SKWAWKBOX:

[One] avenue is to start being more aggressive as members in challenging the abuse of rules by officers/NEC/GS etc. This means being willing to go to court more often and keep suing them if you have to.

The Party Rules are the terms of the contract between members and it is on the interest of members to ensure those terms are complied with properly. An example is the 2016 conference. Paddy Lillis chaired the debate on the bundling of the proposed rule changes put forward in the 1st CAC [Conference Arrangements Committee] report. He took a vote by show of hands and declared it passed. There was a request from the floor for a card vote. Under Conference Standing Orders as set by the CAC if a card vote is requested it “must” take place.

Under the Party Rule book Chapter 3 Clause III. (3) voting is by card when the conditions laid down by the CAC rules require it. Clearly when a request was made from the floor for a card vote the conditions laid down by CAC and which have the force of the Party Rules required a card vote be taken.  Paddy Lillis ignored this even after being told the rule required a card vote by Christine Shawcroft who was on the platform.

The failure to take a card vote means the bundling motion was in my view invalidly declared passed. Subsequently the rule changes were put to conference for a card vote a couple of days later as a whole take it or leave it bundle. [W]hat should have been done was to rush into court to get an interim injunction, on the basis of breach of contract, immediately after the refusal to hold a card vote on the bundling motion to prevent the rule changes being put until a card vote was held on the bundling. Then force a proper card vote.

The card vote might not have changed the outcome of the bundling motion but if it did then the subsequent rule changes would have gone individually for card vote later and the rule that gave Scotland and Wales (why no NI rep?) representatives a vote on the NEC rather than just ex officio status would have been considered individually.

It is impossible to know what the result of the card votes might have been but at least each rule would have been considered on its own individual merits.

I think the amendments to the Party Rules passed at Conference 2016 could potentially be challenged as ultra vires [“in excess of powers” – SKWAWKBOX] on the basis the correct procedure for rule change was not followed.

The law on changing rules in unincorporated association is quite strict so the contractual interpretation is I would suggest quite strict. There is no good reason why a card vote was not held on the bundling motion and the failure to comply with the conference standing orders and therefore the party rules may be contractually legally invalid and arguably the bundled rules that were put by motion to conference for card vote that changed the rules are invalid.

..There is also the concern that if the Rule changes made by conference in 2016 are constitutionally and thus contractually invalid any reliance on them might be ultra vires. So potentially decisions made by the NEC become ultra vires on the basis that it is improperly constituted, though this might only be the case where the voting margin was fewer than 2.

It is uncertain but it seems to be a potential legal vulnerability with serious consequences. The capacity to finance the kind of emergency legal action to get injunctions etc. as I suggested above needs to be created and sustained. I think some kind of general members legal fighting fund to challenge abusive Party actions should be considered. This would not be easy and it would need to be quite substantial to be effective.

So, to summarise:

1. The NEC and CAC (conference arrangements committee) acted in a way that exceeded their legal powers when they chose to ignore party/conference rules to force through their rule-change.
2. As a consequence, the new Scottish and Welsh appointees are there illegally
3. Any decisions made by the NEC as currently constituted are likely void, especially if they were passed by less than 2 votes
4. As the right-wing NEC Chair was elected by a single vote – and specifically the casting vote of Kezia Dugdale – the current Chair is illegally in post
5. A legal challenge to all of the above is distinctly viable
6. Substantial funds will be required for a legal challenge and the maintenance of a fighting fund to contest other illegal manoeuvres is highly desirable

Progress, Labour First, ‘Saving Labour’ and other similar trojan horse groups within the Labour party will certainly decry any such efforts on the grounds that ‘we need to unite and fight the Tories’.

But those groups have already shown that they regard ‘unity’ simply as convenient camouflage for their continuing anti-democratic attempts to control the party’s direction and it is clear that only their emphatic defeat and ideally their expulsion will allow Labour to fight the Tories without one hand tight behind its back.

It is therefore essential to undo the destructive, anti-democratic rule changes that were forced on the party illegally, so a properly-constituted NEC can give Jeremy Corbyn and his team the support they were democratically elected to do.

The SKWAWKBOX understands that crowdfunding for legal action and for a ‘fighting fund’ will begin shortly. Details will be published when available.