In the High Court of Justice on August 8th Mr Justice Hickinbottom decided that, under the Labour Party rules, the Labour Party’s National Executive Committee does not have the power to disenfranchise 150,000 members, including the claimants.
This decision was over turned in the Court of Appeal on 12th August.
5 members of the Labour Party – Christine Evangelou, The Rev Edward Mungo Leir, Hannah Fordham, Chris Granger and an under-eighteen took the case after the Labour Party’s chief administrative body, the National Executive Committee, ruled that only members who joined before 12th January 2016 could vote in the leadership election.
The case was based on the meaning of the constitutional rules in the Labour Party rule book. Secondary claims, of misrepresentation and discrimination, became academic because the claimants won their claim for breach of the rules.
The claimants are represented by Harrison Grant Solicitors.
The claimants funded their case through public donations: https://www.crowdjustice.co.uk/case/labour-party-membership/ So far nearly 6000 supporters have helped.
The High Court judgment can be found at http://www.bailii.org/ew/cases/EWHC/QB/2016/2058.html and the Court of Appeal judgment at https://www.judiciary.gov.uk/wp-content/uploads/2016/08/evangelou-v-mcnicol-appeal-judgment-apprvd-corrected-typos-20160902.pdf
We have had lots of inquiries about this case. To assist we have produced a some “questions and answers” to deal with the main points raised.
However, please note that the full judgment of the Court of Appeal is the only authoritative document stating the law. The Court of Appeal’s judgment in this case is available at: https://www.judiciary.gov.uk/wp-content/uploads/2016/08/evangelou-v-mcnicol-appeal-judgment-apprvd-corrected-typos-20160902.pdf
Who was claiming?
Five members of the Labour Party who had joined since 12th January 2016. One was under eighteen. All had been excluded from voting as members in the leadership election by a decision of the NEC on 12th July 2016. Those over eighteen could, in theory, still vote by registering as supporters and paying £25.00
Over 130, 000 new members were affected by the decision.
What was the legal basis for the claim?
The main basis claim was in contract law. The Rule Book is the contract to which all members of the Labour Party agree to be bound when they join the Party (see further below). We argued that the Rule Book entitled members to a vote in the leadership election and that this interpretation was consistent with the Labour Party’s website and responses to enquiries which were that new members are entitled to vote.
Alternatively, we argued that the statement on the Labour Party website that “you’ll be eligible to vote in leadership elections” was implied into the contract or was a misrepresentation.
We also claimed that the condition that you could not vote unless you became a registered supporter, for which you must be over 18, discriminated against new young party members.
Why was the claim heard so quickly?
If there was to be any chance of the excluded members having a vote then the case had to be heard very quickly indeed. The High Court ordered “expedition” and the case was heard two weeks from the date it was first filed. Throughout this case the Courts have shown an extraordinary ability to hear an urgent and important case quickly – even in the summer holidays.
What happened in the High Court?
Mr Justice Hickinbottom heard the case during one day. The members’ barrister, Stephen Cragg QC argued their case, the Labour Party’s barrister replied with their case and Stephen wound up the day with a reply to their arguments.
Why didn’t anyone give evidence?
The case was heard under the “Part 8” chapter of the court rules, which sets out the procedure for cases where the basic facts of the claim are largely agreed and the case can be heard quickly. Evidence was given in the form of written witness statements and documents were submitted to the Court but no-one gave evidence in court or was cross examined.
What was the result in the High Court?
The High Court gave judgment on Monday 8th August. You can see it here: https://www.judiciary.gov.uk/wp-content/uploads/2016/08/evangelou-v-mcnicol-appeal-judgment-apprvd-corrected-typos-20160902.pdf
The claimants won on the basis that all members were entitled to vote in leadership elections and that the rulebook did not permit the NEC to exclude a large group of members retrospectively from the leadership election.
There was no decision on the implied terms, or the misrepresentation or the discrimination claim – it was not necessary because the judge found that the primary claim that the rule book (which forms the contract between the members) did not permit the NEC decision.
The Labour Party was “reluctantly” given permission to appeal. The judge gave a suggested timetable for appeal – skeleton arguments to be before the court the following day and the hearing on Thursday 11th August.
What was the basis of the appeal?
Iain McNicol appealed on the basis that the NEC was given very broad powers under the rule book which included the power to restrict members from voting in leadership elections.
What happened at the Appeal Hearing?
Three judges heard the appeal and it was live-streamed so you may still be able to catch parts of it online. The Labour Party introduced new arguments based on very wide powers given to the NEC under the rule book.
We argued that members had a right to vote in the leadership election and the NEC power to set “precise eligibility criteria” was to be read as procedural and to fill in gaps in the rules – not a power to exclude a quarter of the members.
Why did you base your argument on the Rule Book – Why didn’t you also say that the statements on the website promising eligibility in the leadership contest was a term in the contract?
The law is that in the case of an “unincorporated association” – like the Labour Party – the relationship of its members is governed by the law of contract:
- The contract is found in the rules to which each member adheres when s/he joins and
- A person who joins does so on the basis that they will be bound by their constitution and rules, if accessible, irrespective of whether s/he has seen them and irrespective of whether he or she is actually aware of particular provisions.
- The rules of an unincorporated association can only be altered in accordance with the constitution and rules themselves.
The evidence, from Iain McNicol, was that at all material times the Labour Party website contained a “Terms and Conditions” page which stated:
“By applying to become a member of the Labour Party you agree to accept and conform to the constitution, programme, principles and policy of the Party.
Full membership rules and procedures are available in the Labour Party rule book.”
In reply to further evidence which suggested that these terms and conditions were not on the website, Iain McNicol agreed that the terms and conditions page was not linked to the “Join” page of the website, but said that the terms and conditions page was available on the website nonetheless.
So, the terms of the contract were in the rule book. We said that the promise on the website, of entitlement to vote, was evidence of what the rules said and meant – that members are entitled to vote in leadership contests.
What did the Court of Appeal decide?
The Court decided that the rule book does not give any Labour party member the right to vote in a leadership election. Under the rule book, it is for the NEC to decide which members can or cannot vote. You can read the judgment here: https://www.judiciary.gov.uk/wp-content/uploads/2016/08/evangelou-v-mcnicol-appeal-judgment-apprvd-corrected-typos-20160902.pdf.
If the case is just about the words in the rulebook, why do parts of the judgment refer to Iain McNicol’s evidence about reasons for excluding party members, including “concern that individuals had become members or registered supporters before the 2015 leadership election merely in order to vote for candidates and without the intention of participating in the Party’s procedures for the election of its leader”?
The Court was referring to background evidence from Mr McNicol which indicated why the NEC excluded members who had joined since January 2016.
Could you have appealed?
The Court of Appeal refused permission to appeal, but the members could have applied for permission to appeal to the Supreme Court who had let us know that they could convene a court on Tuesday to hear an application and an appeal as a “rolled up hearing” (i.e. the application for permission to appeal and the appeal would be heard together).
What would the Supreme Court fees have been?
The Courts normal fee for permission is £1,000.00. Additional fees for hearing appeals amount to a further £7,200.00 but this appeal would have been urgent and “rolled up” with the permission hearing. In those circumstances the Supreme Court may have waived any additional fee. The Supreme Court can also, in appropriate circumstances and need, waive its fees altogether.
Why didn’t the members appeal?
In the Court of Appeal the other side were awarded their costs. They claimed nearly £80,000.00 and the new members were ordered to pay £30,000.00 of this ‘on account’ within 28 days. After they have paid that, the further £50,000.00 remains payable, subject to detailed assessment by the Court.
Another appeal to the Supreme Court risked further tens of thousands of pounds in costs.
On this basis, the new members thought it would be better to make it clear they were staying in the Labour Party to campaign for change and social justice, rather than spend more money on an uncertain outcome.
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