On 29 October, Jeremy Corbyn was suspended from the Labour party for his comments on the Equality and Human Rights Commission (EHRC)’s report into antisemitism in the party. On 18 November, the National Executive Committee (NEC) concluded an investigation into his case which restored his party membership. Later the same day, however, Labour’s chief whip Nick Brown removed the whip from Corbyn, preventing him from being a Labour MP. It’s an additional punishment some have argued breaches not only the party rules, but the law. From a legal perspective, what might happen were Jeremy Corbyn to challenge Nick Brown’s actions in court?
The Labour party is an unincorporated association. The relationship between an unincorporated association and its members is governed by the law of contract.
Here, the relevant contract is the party’s rulebook. Where the rules have been breached, members (including MPs) can sue in the High Court for three things: damages, a declaration (eg that a decision was unlawful), and an injunction (eg an order to restore the whip).
To give an example of this process: in September 2019, as the general election approached, Chris Williamson MP was suspended by the Labour Party for a second time. The practical effect of this was that it would be impossible for him to stand as a Labour candidate in the December general election. He applied to the High Court. He succeeded in obtaining a declaration that his first suspension had been unlawful, but failed to obtain an injunction overturning his second.
That was not the only occasion in which the Labour Party has been in court in recent years. In July 2016, Labour member and millionaire donor Michael Foster wanted to overturn an NEC ruling permitting Corbyn to stand as party leader a second time; he failed. In August 2016, five members sought to challenge their exclusion from voting in the same contest; they won in the High Court, but then lost on appeal.
The first question for a judge considering Jeremy Corbyn’s case would almost certainly be: does the Labour Party have the power to discipline him after the NEC already investigated the relevant complaint, and decided to reinstate him?
Undoubtedly, the standing orders of the parliamentary Labour party entitle the leader’s of whip’s office to discipline MPs, including by suspending the whip on a precautionary basis.
The problem for the Labour leadership is that this power to withhold the whip only exists in order to facilitate a disciplinary investigation – and Corbyn has already been investigated.
Corbyn is accused by the whips of causing distress to Jewish members. The provision for dealing with allegations of antisemitic conduct is the party’s code of conduct, which includes a section specifically on antisemitism (see appendix 9 of the party rules). The body which enforces the code of conduct is the NEC.
Can the whips legally investigate a matter which the NEC has already investigated? The answer is almost certainly not. This is for a number of reasons.
First, because it is contrary to natural justice to investigate people twice for the same offence. This was why Chris Williamson won the first part of his case: “In my judgment,” wrote Mr Justice Pepperall, “ fairness to a member requires that, where the Party communicates an apparently final panel decision in unequivocal terms concluding a disciplinary case … the Party should not itself reopen the case.”.
Second, because the rules the whips are claiming Corbyn has broken are ones only the NEC, not the leadership or whips, can investigate., Third, this is how rules work in law: a general power cannot be used to override a specific one. In other words, if two bodies within one organisation both have the power to discipline, and one has it in general terms (ie it can investigate anything) while the other has the power to investigate a specific misdemeanour, it is the latter which investigates the complaint.
Fourth, a specialist statutory body (the EHRC) has just reiterated that, while whips have the power to discipline MPs, they cannot override the NEC:
We agree that the leadership and the Chief Whip have a role in matters relating to the conduct of MPs. However, neither LOTO nor the Chief Whip has the power to suspend or expel an individual from the Party: that power is reserved to the NEC and National Constitutional Committee (NCC), based on work done, in practice, by the GLU. It is therefore not legitimate for LOTO to interfere in the handling of a complaint against an MP that has been made under the Party rules.” (p.50)
The report found that, where the leadership does override the disciplinary decisions of the NEC, even to expedite punishment of antisemitism, it indirectly discriminates against Jewish members, because such intervention “gave rise to a reasonable perception of different and detrimental treatment, and a risk that their complaint would not be handled fairly, as well as actual different treatment in some cases (which was reasonably perceived to be detrimental.” (p.55)
The commission’s understanding that Jewish members of the Party will suffer discrimination if the NEC rules are ignored takes on even greater force when we consider the Jewish members of Corbyn’s constituency who have protested his treatment.
In short, if the leadership had wanted to remove the whip from Jeremy Corbyn for allegations that had not already been investigated by the NEC, it might be in an arguable position now. If Starmer and Evans had wanted to remove the whip from Corbyn for matters unrelated to the NEC code, their decision might stand up in court. Were it not for the findings of the EHRC, the leadership might conceivably have a case.
But fitting all these together, if the case does come before the High Court, it is hard to see how the decision could possibly be upheld.
David Renton is a specialist discrimination barrister. He is currently writing Labour’s Antisemitism Crisis: What the Left Got Wrong and How to Learn From It, due to be published by Routledge in spring 2021.