The Labour leadership elections

Maine

1. I am instructed to advise the Labour Party on the following question:

Based on Counsel's understanding of the attached Rule Book and precedent, in
the election of the Leader and/0r Deputy Leader of the Labour Party, in a
situation where there is no vacancy:

1. Is the incumbent Leader or Deputy Leader automatically on the ballot paper
in the event of a challenge to either leading to a contested election; or

2. In the event of a challenge contested by the incumbent Leader or Deputy
Leader, what number (percentage) of the combined members of the PLP and
EPLP would be required by each contestant to obtain a place on the ballot

paper.
2. In my advice, I will deal in the following order with:
a. The relevant provisions of the 2016 Rule Book,
b. The history, including previous rules, and any practice and precedent,
c. The legal principles of interpretation to be applied in answering the question,
d. The meaning and effect of the relevant provisions of the rules,
6. The relevance of previous practice, previous rules and any material precedent,
f. The position of additional prospective contestants,
g. My conclusions in summary, and my answer to the question posed.
3. In the first three sections, I will set out the relevant current rules, previous rules and

available information on practice and possible precedent, and the applicable of the
legal principles of interpretation in some detail. This will enable these to be reviewed
in full separate from my analysis if that is of use. The reader may, of course, choose to

refer straight to the analysis and conclusions in the ?nal three sections.

The current 2016 Rule Book

of the Party. Party conference shall meet regularly once in every year and also
at such other times as it may be convened by the NEC.

Clause provides:

(i)There shall be a leader and deputy leader of the Party who shall, ex-of?cio,
be leader and deputy leader of the PLP.

(ii) The leader and deputy leader of the Party shall be elected or re-elected
from among Commons members of the PLP in accordance with procedural
rule Chapter 4 Clause below, at a Party conference convened in accordance
with clause VI above. In respect to the election of the leader and deputy leader,
the standing orders of the PLP shall always automatically be brought into line
with these rules.

Clause provides:

The NEC shall have the power to adjudicate in disputes that may arise at any
level of the Party, including between CLPs, af?liated organisations and other
Party units, and between CLPs, other Party units and individuals in those units
and in disputes which occur between individual members or within the Party
organisation. Where the rules do not meet the particular circumstances, the
NEC may have regard to national or local custom and practice as the case may
require. The decisions shall be ?nal and binding on all organisations,
units and individuals concerned.

Clause provides:

1. The general provisions of these rules shall apply to all units of the 

2. The NEC shall have the authority to sanction, where the NEC considers
local circumstances render it necessary, modi?cations in the rules laid down
by Party conference for the various Party units. Such modi?cations shall
comply with the spirit and intention of the rules adopted by Party conference
and may not alter the Party objects, the basis or conditions of af?liated and
individual membership, vary the procedure for the selection of parliamentary
or local government candidates (except as provided for in the rules) or effect a
change in the relationship between CLPs and the Party.

lO.

manner provided for in
the procedural rules for
Party conference which
are appended 

5. For the avoidance of any doubt, any dispute as to the meaning,
interpretation or general application of the constitution, standing orders and
rules of the Party or any unit of the Party shall be referred to the NEC for
determination, and the decision of the NEC thereupon shall be ?nal and
conclusive for all purposes. The decision of the NEC subject to any
modi?cation by Party conference as to the meaning and effect of any rule or
any part of this constitution and rules shall be ?nal.

Chapter 4 ?Elections ofnational a?cers ofthe Party and national committees?
governs, inter alia, the election of the leader and deputy leader (see Clause
VlI(l)(A)(ii) above) and includes the following relevant provisions. Clause I sets out

?General principles? thus:

Internal Party elections for of?cer posts and the membership of national
committees shall be conducted in a fair, open and transparent manner, in
accordance with the constitutional rules of the Party and any appropriate NBC
guidelines.

Clause II deals with ?Procedural rules for elections for national of?cers of the Party?.

Clause provides that:

A. The following procedures provide 3 rules framework which, unless varied
by the consent of the NEC, shall be followed when conducting

elections for Party of?cers. The NEC will also issue procedural guidelines on
nominations, timetable, codes of conduct for candidates and other matters
relating to the conduct of these elections.

Clause 11(2) deals with the ?Election of leader and deputy leader?. All references to
the current rules hereafter refer to Clause 11(2) unless otherwise stated. Rule A

provides that ?The leader and deputy leader shall be elected separately in accordance

1 - 1 Flt? -.-

i. In the case ofa vacancy for leader or deputy leader, each nomination must
be supported by 15 per cent of the combined Commons members of the PLP
and members of the EPLP. Nominations not attaining this threshold shall be
null and void.

ii. Where there is no vacancy, nominations may be sought by potential
challengers each year prior to the annual session of Party conference. In this
case any nomination must be supported by 20 per cent of the combined
Commons members of the PLP and members of the EPLP. Nominations not
attaining this threshold shall be null and void.

Af?liated organisations, the ALC, Young Labour, and CLPs may also
nominate for each of the of?ces of leader and deputy leader. All nominees
must be Commons members of the PLP.

iv. Nominees shall inform the General Secretary in writing of the acceptance
or otherwise of their nomination at least two clear weeks before the
commencement of the procedures for voting laid out in rule below. Unless
written consent to nomination is received, nominations shall be rendered null
and void.

v. Valid nominations shall be printed in the ?nal agenda for Party conference,
together with the names of the nominating organisations and Commons
members of the PLP supporting the nominations. In the case of a vacancy
under below this information shall be included with the documentation
circulated with any ballot.

vi. Nominees who do not attend the relevant Party conference shall be deemed
to have withdrawn their nominations, unless they send to the General
Secretary on or before the day on which the conference opens an
explanation in writing of their absence satisfactory to the CAC.

12. Rule deals with ?Voting?. These provisions are clearly concerned with a contest
election and include the following:

v. The procedures shall ensure that each candidate has equal access to the
eligible electorate and has equal treatment in all other matters pertaining to the
election.

vi. Votes shall be cast in a, single section, in? labour Partv members, af?liated

13.

14.

15.

No person shall be entitled to receive more than one vote. Votes shall be
cast by each individual and counted on the basis of one person one vote.

ix. Voting shall be by preferential ballot. The votes'shall be totalled and the
candidate receiving more than half of the votes so apportioned shall be
declared elected. If no candidate reaches this total on the count of ?rst
preference votes, a redistribution of votes shall take place according to
preferences indicated on the ballot paper.

it. The votes cast for each nominee shall be recorded and published in a form
to be determined by the NEC as soon as possible following any election.

Rule deals with ?Timing of an election? thus:

i. When the PLP is in opposition in the House of Commons, the election of the
leader and deputy leader shall take place at each annual session of Party
conference.

ii. When the PLP is in government and the leader and/ or deputy leader are
prime minister and/ or in Cabinet, an election shall proceed only if requested
by a majority of Party conference on a card vote.

In any other circumstances an election shall only be held when a vacancy
occurs, subject to below.

Rule deals with ?Procedure in a vacancy? depending on whether the party is in
government or opposition. E(iv) applies to the election of a leader in opposition:

When the Party is in opposition and the Party leader, fOr whatever reason,
becomes permanently unavailable, the deputy leader shall automatically
become Party leader on a pro-tern basis. The NEC shall decide whether to hold
an immediate ballot as provided under above or to elect a new leader at the
next annual session of Party conference.

It also includes provision for elections and interim measures when the deputy leader
?for whatever reason, becomes permanently unavailable?, and for when both the
leader and deputy leader ?for whatever reason, both become permanently

unavailable?.

17.

18.

and of precedent. I set out in this section the development of the rules and available
information about practice under different versions of the rules, including previous
challenges to an incumbent. My review of the available information in this regard
serves two linked purposes, to identify the relevant facts on the available
information, and secondly to consider, in light of the principles set out below, the
extent to which the facts required to establish any relevant practice are likely to be
known or readin ascertainable to members not involved in conducting elections. I will
analyse separately in later sections whether or to what extent practice and previous
versions of the rules are relevant to the interpretation and effect of the current rules

touching on the answer to the question posed.

While there have been various changes to the rules governing leadership elections
since the electoral college was established by the Wembley special conference in
1981, I deal below only those relating to the question posed. In identifying and
considering previous rules and previous practice, I have consulted a number of
published academic and other works dealing with the contemporary history of party
leadership elections, as well as reviewing sources of news and opinion online, and
raising queries which I am grateful to Those Instructing for addressing. I have already
indicated aspects of my understanding of the factual context to Those Instructing who
have kindly confirmed that the Labour Party has no further relevant information for

me to consider for the purposes of this advice.

Prior to the electoral college being established for leadership elections in 1981, the
electorate consisted solely of MPs. There were two post-war challenges to an
incumbent leader under the pre-l981 system, both to Hugh Gaitskell, and both
defeated. Given the restriction of the electorate to MPs, there would have been no

purpose in having a threshold of support from MPs as a precondition to standing for

21.

stood against Denis Healy for the of?ce of deputy leader. In 1988, Mr Benn stood
against Neil Kinnock for the of?ce of leader and Eric Heffer and John Prescott stood
against Roy Hattersley for the of?ce of deputy leader. In each case, a contested
election resulted. I am aware of no example of a potential challenger to an incumbent
being nominated but failing to attain the applicable threshold of support to trigger a

contested election.

I understand from published sources that from 1981 until the 1988 annual conference,
a single threshold of support from MPs was stipulated of 5% and there was no
differentiation between standing for a vacancy and standing against an incumbent.
Various extracts from rules applying in the 19803 are posted online. I sought and have
kindly been supplied with an authoritative version of the 1987-8 rules which would
have applied to the leadership elections in 1988. (I understand that materially similar
rules would have applied from 1981 to 1988 so would also have applied to Mr Benn?s
1981 challenge to Mr Healy).

?Standing Order 5 Election of officers? in the 1987?8 Rules included the following

provisions:

The leader and dep?y leader of the party shall be elected separately at a
party conference.

Af?liated organisations, Constituency Labour Parties and Commons
Members of Parliament may nominate for each of the of?ces of leader and
deputy leader, one Commons Member of the Parliamentary Labour Party
attending conference (unless excused attendances as provided in sub-section
(0) below) as a delegate or ex o?icio delegate.

Nominees who do not attend the party conference shall be deemed to have
withdrawn their nominations unless they send to the secretary on or before the
date on which the conference opens an explanation in writing of their absence
satisfactory to the party Conference Arrangements Committee.

22.

their support, nominations will be rendered null and void. Valid nominations
shall be printed in the Agenda together with the names of the nominating
organisation and Commons Members supporting the nomination.

Voting in the election of the leader and deputy leader of the party shall
take place consecutively in three sections as 

The votes for each nominee in a section shall be calculated as a percentage
of the total votes cast in that 

(0) The votes apportioned as provided in paragraph above shall be totalled
and the candidate receiving more than half of the vote so apportioned shall be
declared 

Subject to sub-paragraph below [which is concerned with the timing
of an election to ?ll a the Parliamentary Labour Party is in
opposition in the House of Commons the election of the party leader and
deputy leader shall take place at each annual party conference.

The votes cast for each nominee by each af?liated organisation,
Constituency Labour Party and Commons Members of the Parliamentary
Labour Party shall be recorded and made available as soon as possible.

I have seen no reports or claims about whether or on what basis Mr Healy or Mr
Hattersley collected nominations or other indications of support from MPs when
contested elections for deputy leader were triggered in 1981 and 1988 respectively. I
have seen reports or claims in news and opinion published online that Mr Kinnock
collected nominations from the PLP when the 1988 election for leader was triggered
and that this may have precedent value in determining what is now required of the
incumbent. However, I have seen no reliable or sourced information about whether
any steps to seek multiple nominations from MP3 for Mr Kinnock (or Mr Healy or Mr
Hattersley) re?ected a perceived requirement under the rules to demonstrate the

support of 5% of MPs, as opposed to demonstrating the extent of support from MPs

24.

25.

20%. It is evident from published histories that the primary reason for this change was
to reduce the scope for challenges to an incumbent, especially in light of Mr Benn?s
challenge to Mr Kinnock that year. Since the only amendment was to the percentage
stipulated in the effect was that the new 20% threshold also applied to an
election to ?ll a vacancy. This may be explained at least in part as simply making the
minimum amendment required to meet the primary aim of limiting future challenges
to the incumbent. There is in addition, some suggestion, that raising the threshold
applying to elections to ?ll a vacancy was viewed as desirable in order to limit the
number of candidates in such elections, although not, it appears, with the intention of

discouraging contested elections altogether where there is a vacancy to ?ll.

However, concern developed following the resignation of Mr Kinnock sa leader in
1992 that there ought to be a contested election to ?ll the vacancy and that the 20%
threshold might prevent this (though it did not in ultimately do so). Because a
contested election was considered more bene?cial than a single candidate elected to a
vacancy unopposed, the threshold of support where there was a vacancy was reduced
in 1993 to 12.5% (subsequently amended to Clearly, no corresponding bene?t
was identi?ed to lowering the threshold required to challenge an incumbent because
this was kept at 20%. The change introduced in 1993 meant that the rules for the ?rst
time made provision for different thresholds of support required to stand for an
election depending upon whether the prospective candidate would be standing in an

election to ?ll a vacancy or challenging an incumbent.

As set out above, rule of the 2016 rules provides that?When the PLP is in
Opposition in the House of Commons, the election of the leader and deputy leader
shall take place at each annual session of Party conference? and this provision appears

to have applied in materially the same form since 1981. It appeared in of the

words, there was no formal nomination of the incumbent for re-election and no
process by which the incumbent was formally declared elected for a further year. In
respect of this period, I have seen relevant extracts from the 2010 rules and 2013
rules. The 2013 version ofB(ii) was in similar terms to the current B(ii). The 2010
version of the rules was worded as follows:

(ii) Where there is no vacancy, nominations shall be sought each year prior to
the annual session of party conference. In this case any nomination must be
supported by 20 per cent of the Commons members of the PLP. Nominations
not attaining this threshold shall be null and void.

26. The 2010 version therefore provided that ?nominations shall be sought prior to?
annual conference where there is no vacancy, which could be interpreted as providing
for an invitation to nominate, whereas the 2013 Rules, like the present rules, clearly
put the onus on potential challengers by providing that ?nominations may be sought by
potential challengers each year prior to? conference. I have also seen the 1993 Rules
which were the ?rst to make different provisions depending upon whether or not there
was a vacancy. The 1993 version stated (similarly though not identically to 2010) that
?In the case where there is no vacancy, nominations should also be sought on an
annual basis?. I have no information available about any process by which

nominations were in practice sought each year under earlier rules.

The legal principles applying to the interpretation of the rules

27. The legal status of the Labour Party and its rules is well established. In the words of
Stanley Burnton I in Choudhry Trez'sman [2003] EWHC 1203 (Comm):

38. The Labour Party is an unincorporated association. Its constitution is
contained in its rules contained in its rule book, which constitute a contract to
which each member adheres when he joins the Party.

29.

30.

The most authoritative explanation of the modern approach to contractual
interpretation is that supplied by Lord Hoffmann in AG ofBelz'ze 12 Belize Telecom
[2009] UKPC 10, [2009] WLR 1988:

The court has no power to improve upon the instrument which it is called
upon to construe, whether it be a contract, a statute or articles of association. It
cannot introduce terms to make it fairer or more reasonable. It is concerned
only to discover what the instrument means. However, that meaning is not
necessarily or always what the authors or parties to the document would have
intended. It is the meaning which the instrument would convey to a reasonable
person having all the background knowledge which would reasonably be
available to the audience to whom the instrument is 

17 The question of implication arises when the instrument does not expressly
provide for what is to happen when some event occurs. The most usual
inference in such a case is that nothing is to happen. If the parties had intended
something to happen, the instrument would have said so. Otherwise, the
express provisions of the instrument are to continue to operate undisturbed. If
the event has caused loss to one or other of the parties, the loss lies where it
falls.

18 In some cases, however, the reasonable addressee would understand the
instrument to mean something else. He would consider that the only meaning
consistent with the other provisions of the instrument, read against the relevant
background, is that something is to In such a case, it is said that the
court implies a term as to what will happen if the event in question occurs. But
the implication of the term is not an addition to the instrument. It only spells
out what the instrument means.

21 It follows that in every case in which it is said that some provision ought to
be implied in an instrument, the question for the court is whether such a
provision would spell out in express words what the instrument, read against
the relevant background, would reasonably be understood to There is
only one question: is that what the instrument, read as a whole against the
relevant background, would reasonably be understood to mean?

The leading text on English contract law, Chitty on The Law of Contracts (32 ed),

31.

interpreting their intention, the courts look at the factual matrix of the contract:
. . . modern principles of construction require the court to have regard to the
commercial background, the context of the contract and the circumstances of
the parties, and to consider whether, against that background and in that
context, to give the words a particular or restricted meaning would lead to an
apparently unreasonable and unfair result."

l3~05 6  the principle that words must be construed in their ordinary sense is
liable to be departed from where that meaning would involve an absurdity or
would create some inconsistency with the rest of the instrument. It may also
not be applied, as Lord Hoffmann indicates, where there has been an obvious
linguistic mistake or where, if the words were construed in their ordinary
sense, they would lead to a very unreasonable 

Custom or usage may in limited circumstances be admitted as evidence of what the terms

were intended to mean but ?No custom or usage will be considered by the court on the

construction of a contract, unless it is notorious, certain and reasonable? and ?The notoriety

of a custom or usage is a matter to be proved in evidence? (Chitty, para 13?132).

32.

The modern approach to the implication of terms (as opposed to the interpretation of
the express terms) was described by Lord Hoffmann in the passage from Belize above.
That passage re?ects the caution that a court will still exercise before implying a term
that could have been, but has not been expressed. Speci?c circumstances in which an
additional term may be implied include where necessary to give ef?cacy to a contract,
i.e. where the contract will be unworkable unless further terms are implied; where the
implication is an obvious inference from the express provisions; and where the
contract as set out in the express terms is incomplete (Chitty, paras 14-008 - 14-011).
An implied term may be derived from ?an invariable, certain and general usage or
custom? but ?To be binding, however, the usage must be notorious, certain and

reasonable? (Chitty, para 14?021).

34.

having regard to their purpose and audience and avoiding the technical approach to
the language that may be appropriate to the interpretation of a statute. A number of
authorities on the interpretation of rules were considered by Warner in Jaques 

A UEW [1986] ICR 683 who held that:

There are, of course, in those dicta differences of emphasis and of formulation,
but not, I think, differences of The effect of the authorities may I
think be summarised by saying that the rules of a trade union are not to be
construed literally or like a statute, but so as to give them a reasonable
interpretation which accords with what in the court's view they must have been
intended to mean, bearing in mind their authorship, their purpose, and the
readership to which they are addressed. (p.692)

Custom and usage may be of particular signi?cance when interpreting the rules of an
unincorporated association, but the basic principle remains that someone relying on
custom and practice must establish that it is ?notorious, certain and reasonable?
(Chitty, above). In Lewis He??er [1978] WLR 1061 the Court of Appeal had ?to
discover what is the true relationship between the national [Labour] party and the
local constituency [Labour] party, and to do this we have to look at the rules?

1071 C). In concluding that ?a constituency Labour party cannot be regarded as
independent of the national party? and was subject to the disciplinary powers of the
NEC (p.107lH), Lord Denning MR observed that:

This View of the relationship is supported on the evidence adduced by Mr.
Underhill as to the way the constitution has worked in the past. He refers to the
reports of the party conference. The NRC. have exercised disciplinary powers
over the local Labour parties or their members. When there have been
dissensions within a local party, the NBC. have held inquiries and
reorganised them. They have expelled members and suspended them. All
these measures have been reported to the annual party conference and no
exception has been taken to them or no serious exception as far as I can
see. In a body like this, rules are constantly being added to, or
supplemented by, practice or usage: and, once accepted, become as
effective as if actually written. emphasis added)

36.

Rules of association of this kind ultimately derive their legal effect from the
acceptance, by the members, of the terms and conditions of the association
when they join the group. Where there is an established and well known
and unquestioned practice in use in the association it is some evidence,
and indeed it may be strong evidence, that this practice too is part of the
terms and conditions which are accepted by persons joining the
association. Consequently there are sound reasons for including such a
practice as suspension by the N.E.C. in the rules by a process of
implication. If one adopted the contrary view, it must require an
extraordinarily strong and clear case to justify the court in holding a well-
established practice like this to be unconstitutional or ultra vires, more
particularly where the organisation concerned is a voluntary, unincorporated
and essentially informal body. emphasis added)

Such practice need not actually be known to all members. The test was considered in

Re RMT, AB CD [2001] IRLR 808, in which Sir Andrew Merritt VC held that:

25. It was common ground that an implication on the basis of custom and
practice could only be made in cases where the custom was both
reasonable and certain. But there was much debate as to the extent to
which the custom must be known. Counsel for the claimants contended that
it must be notorious amongst all those engaged in the trade. Counsel for the
defendants submitted that it was enough if the custom or practice was known
to those responsible for operating the procedures. The materiality of the
distinction is plain from the evidence. The claimants point to a substantial
body of direct and indirect evidence to the effect that the alleged custom and
practice was unknown to them. This is unsurprising because most of them
would not have had any experience of balloting procedures or how to break a
tie.

28. I agree with counsel for the claimants. If it is asserted that custom or
practice warrants the implication of a term into a contract then, in principle, it
must be known to or readily ascertainable by all the parties to the contract.
Sagar Rz'dehalgh [1931] Ch.310 is an example of the extent of the
knowledge or notoriety required. A custom or practice alleged to justify an
implication into the contract between all the members of the union and
the union itself must, therefore, be known to or readily ascertainable by

n" n?lw evil-l1 flan n?r aloft-f;an

38.

39.

provide for a tie?breaker), being justified on each of the other recognised reasons for
implying a term which he listed by reference to a previous edition of Chitty, ?where
individual reasons for implying a term are described as to give ef?cacy to the contract,
to be an obvious inference from the express terms or to complete the contract the

parties made? (judgement, paras 30?3 1).

In Choudhry (above), Stanley Burnton sounded a need for caution in relying upon
practice as an aid to the interpretation of the provisions of the rule book:

64. I have reached this conclusion without reference to the principle contended
for by Mr Giffin that the rules are to be interpreted in accordance with the
practice of the Party. He referred me to the judgment of Lord Denning, the
Master ofthe Rolls, in Lewis Hejj?er [1978] WLR, 1061 at page 1076 
and to the judgment of Lord Woolf, the Lord Chief Justice, in Dunlap Tyres 
Blows [2001] EWCA, Civ, 1032 at paragraphs 21 and 22.

65. In my judgment, the principle applied in those cases must be applied with
caution, particularly in View of the principle established by the House of Lords
in James Miller and Partners Woodworth Street Estates [1970] AC 583, that
it is illegitimate to use the conduct of the parties to a contract after its
conclusion as an aid to construction. Where there is no equivalent of paragraph
5 at clause 10, it cannot be right for a member ofa party to be bound by the
interpretation of rules of which he has no notice. Just as a custom relied upon
in support of an allegation of implied term must be certain, well established
and notorious, so must any practice relied upon as establishing a particular
meaning to contractual rules of the kind presently under consideration.

His reference in para 65 to ?paragraph 5 at clause 10? is to what is now, in materially
identical form, Clause of chapter 1 of the 2016 Rule Book. It should be noted
that Stanley Burnton was here referring to this rule in the context of whether conduct
following the conclusion of the contract could determine the ?interpretation ofrnles
ofwhich [a member] has no notice?. This refers to the interpretation of the written

(express) rules. He was not suggesting that Clause could affect the well established

11r1?1:f?1?  ?n nuc?fnm rancid, allegation OfZ'leied 

 

40.

41.

42. 

43.

Stanley Burnton J?s reference to the principle established in James Miller is to the

principle described by Lord Reid as follows:

I must say that I had thought that it is now well settled that it is not legitimate
to use as an aid in the construction of the contract anything which the parties
said or did after it was made. Otherwise one might have the result that a
contract meant one thing the day it was signed, but by reason of subsequent
events meant something different a month or a year later. (p.603)

That principle was expressly considered in Dunlap Tyres, the other case mentioned by
Stanley BurntonJ at para 64 as having been cited to him on this point. The Lord Chief
Justice, with whom the other members of the Court of Appeal agreed, stated that:

22. it is important, in my judgment, to note that in looking at the practice
before the contract was entered into and noting that it did not change after the
contract was made, that does not offend what Lord Reid said. This is not to
suggest that the contract meant one thing on one day and another thing on a
different day. The approach I have adopted recognises that it is not wrong to
look at that practice beforehand because something different happens
subsequent to the [W]here there is a clearly established practice
which continues before and after a contract is made, the evidence of what
happened before becomes relevant in determining whether any change in the
position has been made. If there is (as I believe there was here) real ambiguity
as to the meaning of the contract, the absence of any change of practice would
be a clear indication that the parties by their conduct which as part of the
background circumstances against which the contract should be interpreted,
intended no change in the contractual terms.

Therefore, where there is a ?real ambiguity? in the rules and ?where there is a clearly
established practice which continues before and after a contract is made?, then ?the
absence of any change of practice would be a clear indication that the parties by their

conduct  intended no change in the contractual terms?.

A particularly restrictive approach should be adopted when considering alleged

implied terms limiting eligibility for election beyond those that are expressed in the

44.

45.

to make any such implication? In my judgment the answer is because
it is not necessary to give to the contract contained in the rules business
efficacy, although it may make it more ef?cient. should not
be made of additional requirements of eligibility over and above those
expressed unless one is really driven to it, and in my judgment one is not.
In my view the inability of the candidate at the moment of nomination, if
elected, to perform his duties under rule 4 (4) is a matter for the electors, not of
his right to stand. (Emphasis added)

A restrictive approach was also applied to the ambit of a discretion to review

eligibility (although it was easy to conclude that the particular discretion was limited).

Clause I in chapter 4 says that "Internal Party elections for officer posts  shall be
conducted  in accordance with the constitutional rules of the Party and any
appropriate NEC guidelines" and Clause II states that "The following procedures
provide a rules framework which, unless varied by the consent of the NEC, shall be
The NEC will also issue procedural guidelines on nominations, timetable,
codes of conduct for candidates and other matters relating to the conduct of these
elections." I understand that there are no NEC guidelines currently in existence that
are relevant to whether the incumbent may participate in an election triggered by a
challenger, and that there is no known precedent for the NBC issuing guidelines
dealing with a speci?c election that would be relevant to answering the question posed
by my instructions. Given the restrictive approach to the interpretation of eligibility
criteria for election illustrated by Leigh, and that we are here concerned with
eligibility conditions applying to an incumbent leader or deputy leader, I would
anticipate that only the interpretation of the rules themselves would determine
substantive eligibility criteria. Any guidelines, like the interpretation of the rules,
should also accord with the ?General principles? in Clause I: elections ?shall be

conducted in a fair, open, and transparent manner?.

is a principle of contract law that the correct interpretation of a contract is a matter to
be determined by the court and its jurisdiction to do so cannot be ousted by a term of
the contract. The statement most usually cited for this principle in the context of the
interpretation of rules is that of Denning Ll in Lee 12 Showmen ?5 Guild ofGreat
Britain [1952] 2 QB 329:

Although the jurisdiction of a domestic tribunal is founded on contract,
express or implied, nevertheless the parties are not free to make any contract
they like. There are important limitations imposed by public 

Another limitation arises out of the well-known principle that parties cannot by
contract oust the ordinary courts from their They can, of course,
agree to leave questions of law, as well as questions of fact, to the decision of
the domestic tribunal. They can, indeed, make the tribunal the final arbiter on
questions of fact, but they cannot make it the ?nal arbiter on questions of law.
They cannot prevent its decisions being examined by the courts. If parties
should seek, by agreement, to take the law out of the hands of the courts and
put it into the hands of a private tribunal, without any recourse at all to the
courts in case of error of law, then the agreement is to that extent contrary to
public policy and void. (p.342)

I desire to emphasise that the true construction of the contract is to be decided
by the courts and by no one else.

 The rules are the contract between the members, the committee cannot
extend their jurisdiction by giving a wrong interpretation of the contract, no
matter how honest they may be. They have only such jurisdiction as the
contract and its true interpretation confers on them, not what they think it
confers. The scope for their jurisdiction is a matter for the court and not for the
parties, let alone for one of them. (p.344)

47. Stanley Burnton pointed to Denning LJ ?s reference to the court deciding ?the true
construction of the contract? as supporting his observation at para 68 that:

This case differs from Lee in an important respect. The members of the Party
have agreed by clause 10.5 that it is the NEC who shall determine disputes as

49.

restrict itself to whether the interpretation was honest and reasonable and
decline to determine, and proceed on the basis of, the correct interpretation. It would
be fair also to point out that the other members of the Court of Appeal in Lee were
less emphatic than Denning LJ and the point did not need to be decided. However, his
dicta have subsequently been adopted and relied upon in a number of cases such as
Leigh (at including cases in which there was a clause similar to 10.5, e. g.
Baker Jones [1954] WLR 1005. In that case, indicated agreement with
Denning dicta in the course of holding that:

The interpretation of the rules is a question of law which the courts will
examine. In my view, therefore, the provision in the BAWLA rules, making
the central council the sole interpreter of the rules and their decision in all
cases ?nal, is contrary to public policy and void. (p.1010)

In light of Stanley Burnton J?s apparently differing View, I have arrived at conclusions
on the correct interpretation of the rules, and have in addition considered whether a

contrary interpretation could reasonably be adopted.

The interpretation of the relevant rules

50.

I will consider the application, if any, of B(i) and B(ii) to the incumbent. I shall
do so on the hypothesis that an incumbent is formally nominated for re-election by an
MP, MEP, or an organisation or unit listed in and the question is whether either
threshold of support must be attained for that nomination. I will also address whether
a requirement on the incumbent to attain any threshold of support can be derived any
other way. I shall then address the distinct issue of whether there is any requirement
that the incumbent is formally nominated or whether s/he is automatically on the
ballot paper when a leadership challenge is triggered under B(ii) unless s/he resigns

before the vote. I will then consider whether any evidence of past practice under

The threshold ofsupport

51.

52.

53.

B(i) is expressly directed to the threshold of support that each candidate must attain
?in the case of a vacancy?, that threshold being that ?each nomination must be
supported by 15 per cent of the combined Commons members of the PLP and
members of the Rule illustrates what is meant by a ?vacancy?, namely

where the incumbent ?for whatever reason, becomes permanently unavailable?.

B(ii) deals expressly with the position ?where there is no vacancy?. That is the
situation with which I am concerned. It is clear that an incumbent can be
For this purpose, ?nominations may be sought by potential challengers
each year prior to the annual session of Party conference?. However, ?In this case any
nomination must be supported by 20 per cent of the combined Commons members of

the PLP and members ofthe 

The ?potential challengers? that B(ii) envisages are, of course, seeking to challenge
the incumbent in circumstances where the incumbent continues in of?ce and is not
resigning. A higher threshold of support - 20% - is required when seeking to stand
against an incumbent than the 15% threshold of support that is required to stand in an
election to ?ll a vacancy. The purpose of the rules on their face is to make it more
dif?cult for someone to challenge an incumbent in a contested election than to stand
for election to ?ll a vacancy. That makes it unsurprising that there is no reference to a
threshold of support that the incumbent must satisfy in order to contest the election
against his or her challenger. The purpose of the higher threshold of reducing the
scope to challenge an incumbent would not be served by applying a higher threshold

to the incumbent than applies in the case of a vacancy.

55.

56.

57.

To contend that the incumbent had to satisfy the 15% threshold would be contrary to
the express provision that the 15% threshold applies in the case of a vacancy. On no
view can there be said to be a vacancy when the incumbent is willing and able to
continue. It is not properly arguable, in the face of express wording of the rule, that
the 15% threshold in EU) extends to an election where there is no vacancy and in

particular that it must be met by the incumbent.

I turn therefore to whether the 20% threshold in B(ii) could reasonably be construed
as applying to the incumbent. In my view, the 20% threshold in B(ii) can only
reasonably be construed as applying to a ?potential challenger?. The second sentence
which applies the threshold starts ?In this case any nomination must be supported by
20 per cent? so ?in this case? refers back to the ?rst sentence. The first sentence is
solely providing for ?potential challengers? to seek nominations ?where there is no
vacancy?. Therefore, where there is no vacancy, a potential challenger must be
supported by this higher 20% threshold. The ?rst sentence to which ?in this case?-

refers does not deal in any reSpect with nomination of the incumbent.

That the rule is not intended to exclude the incumbent from the ballot paper is
re?ected by it setting conditions for a challenge to the inCurnbent. A ?potential
challenger? must attain a threshold to be permitted to make that challenge to the
incumbent by way of a contested election. The leader is otherwise protected from
challenge by the enhanced threshold that potential challengers must meet. Were the
leader required to pass some threshold in order to contest the election, then the
?challenger? could be elected unchallenged because the incumbent that s/he is
challenging is excluded from the ballot by that higher threshold. The exclusion of the

incumbent from the ballot in this way would be a grave step requiring a clear term.

59.

60.

expressly applied ?in this case?, being the case described in the ?rst sentence. That
provides simply that nominations may be sought by potential challengers in advance
of annual conference. ?In this case? refers to a potential challenger seeking
nomination as provided by the ?rst sentence. If ?any nomination? in the second
sentence were intended to encompass nomination of the incumbent then it would be
triggered simply in the case of a potential challenger seeking nomination, not in the
case of that nomination attaining 20% support. The wording cannot be construed so
that the requirement to achieve 20% support imposed by the second sentence is only

activated if the potential challenger has already achieved 20% support.

If ?any nomination? is interpreted to encompass nomination of the incumbent for re-
election, then the rule would therefore contemplate a process by which a potential
challenger seeks nomination pursuant to the ?rst sentence of B(ii), so activating the
requirement that any nomination achieve 20% support, but neither the potential
challenger nor the incumbent then achieves that threshold. The consequence, given
that ?Nominations not attaining this threshold shall be null and void?, would be that
neither the potential challenger nor the incumbent would be on the ballot paper,
leaving the party potentially without a leader. Given the principles of interpretation set
out above, I do not consider that there is any prospect that a court would uphold an

interpretation with this implausible effect.

If a uniform percentage was stipulated in each case in which a threshold of support is
required under the rules, then it might be a little less obviously unarguable that the
threshold should be applied to an incumbent. However, the fact that the threshold of
support stipulated in B(ii) in a case where there is no vacancy is higher than the
threshold which the incumbent had to meet when s/he was elected to of?ce creates an

insurmountable hurdle in the way of construing the threshold in B(ii) as applying to

of MPs and MEPs. Let us suppose that a candidate whose nomination is supported by

. 15% of MPs and MEPS is chosen by the electorate in preference to a candidate

supported by 20% or more of MPs and MEPs. That is a result clearly contemplated by
the rules. The losing candidate, utilising the same 20% support from MPs and MEPs,
could stand the following year against the candidate who had defeated him. That again
is in line with the rules. But the effect of applying the 20% threshold in B(ii) to the
incumbent (even if it could be construed as applying only if a challenger has already
attained that threshold) would be that the incumbent with the 15% support of MP5 and
MEPs that entitled the electorate to choose him or her would now be removed from
the ballot paper by application of a higher 20% threshold. The candidate that had been
rejected the previous year is then elected unopposed on the basis of 20% support of
MPs and MEPS. Such an interpretation is not one that I consider a court could accept,
applying the principles set out above, unless driven to do so by the clearest of

wording. It will be apparent from the discussion above that this is not such a case.

There is no basis in the rules for applying any other threshold to the incumbent that
those that the rules identify in B(i) and B(ii). The absence of any basis for applying to
the incumbent either of these thresholds leaves a binary choice. Either the challenge is
intended to proceed by way of a contested election against the incumbent as a matter
of course or it is intended that the incumbent be excluded from the ballot as a matter

of course. The latter alternative would be viewed by a court as absurd.

Whether the rules require that the incumbent be nominated

63.

Both B(i) and B(ii) require that a ?nomination must be supported by? a percentage of
MPs and MEPs and that ?Nominations not attaining this threshold shall be null and

void?. It is clearly implicit that an MP or MEP may make the nomination to which

64.

65.

offices of leader and deputy leader? and the requirement that a percentage of MPs
must indicate support for the nomination was imposed by a different sub-section (see
the quotation from the 1987-8 Rules set out above). For the avoidance of doubt, I do
not think it arguable that nomination made by an organisation or unit under for

an election to ?ll a vacancy or to challenge an incumbent would avoid the threshold of

support required respectively by EU) or B(ii).

There is no reference in the rules to the incumbent being nominated for re-election,
whether in the case of a challenge triggering a contested election under B(ii) or in
years in which no potential challenger seeks nomination or a potential challenger?s

nomination fails to attain 20% support.

D(i) provides that ?When the PLP is in opposition in the House of Commons, the
election of the leader and deputy leader shall take place at each annual session of
Party conference.? The reference to each annual session rather than the or an annual
session suggests that there was to be an election to these offices annually, on which
basis, one would expect an incumbent facing no challenge to be deemed re-elected
unopposed. As I have already indicated, I understand that no formal process of any
sort takes place at annual conference or otherwise leading to the incumbent being
declared re-elected unopposed in a year in which there is no challenge under B(ii).
This means that in practice, the incumbent is not required to seek or be nominated for
re-election each year in order to continue in office and, obviously, that no threshold of
support is required to enable him or her to continue in office. If s/he is deemed to be
re-elected unopposed for the purposes of then this would appear to be happen
implicitly given that there is no practice of making a formal declaration to that effect,

and re?election is deemed to occur without the need for any nomination.

67.

68.

nominated in time. In the absence of a challenger having been nominated and having
satis?ed the threshold in B(ii), this would again create the prospect of the of?ce
becoming empty. It might be said that this will create a vacancy and therefore call for
an election govemed by However, the ?Procedure in a vacancy? in Rule is
provided to apply if the incumbent ?for whatever reason, becomes permanently
unavailable? which is not wording that is apt to cover this scenario. I do not think that

a court would imply a requirement that the incumbent be re-nominated, a requirement

. that could leave the party without a leader, particularly given the consequential

provisions that the court would then have to identify by implication.

B(iv-vi) also address nominations so I have considered whether any requirement that
the incumbent be nominated can be inferred from these provisions. B(iv) provides that
?Nominees shall inform the General Secretary in writing of the acceptance or
otherwise of their nomination? and ?Unless written consent to nomination is received,
nominations shall be rendered null and void.? This does not read as if it were intended
to apply to an incumbent, whether under challenge or not. There is no apparent need
to require written evidence of his or her consent to inclusion on the ballot. The drastic
consequence of failure to supply such unnecessary consent in the case of an
incumbent is a further indication that it was not intended to encompass the incumbent.
Given that I understand that the practice is not to nominate the incumbent each year, it
will also be the practice that the incumbent supplies no written consent to nomination

each year. The absence of any consequence supports my interpretation of B(iv).

B(v) provides that ?Valid nominations shall be printed in the ?nal agenda for Party
conference, together with the names of the nominating organisations and Commons
members of the PLP supporting the nominations.? (I assume that the failure to add

here members of the EPLP when the rules were amended in 2015 is inadvertent.) This

69.

70.

71.

withdrawn their nominations? would, if it applied to the incumbent, provide for his or
her eviction from of?ce without a vote simply on the basis of non?attendance and is

similarly indicative of provision for those seeking of?ce rather than an incumbent.

Given that D(i) provides for the leader and deputy leader to be rejelected each year,
then if the incumbent does not require nomination each year, then there is no obvious
basis upon which s/he can be required to seek nomination only in a year in which a
challenger satis?es the 20% threshold and certainly no express term having that effect.
While I do not consider that rule offers support for a requirement that an incumbent
be nominated for re-election where there is a contested election, there is at least a
point that could be made by reference to rule on Voting to argue for an implicit
requirement that an incumbent be nominated if a challenger triggers a contested

election. I do not, however, think it is a good one.

C(i-ix) makes provision for the conduct of the election (set out above) and uses the
term ?candidates? in the election, terminology that does not support any requirement
that the incumbent be nominated. However, C(x) provides that ?The votes cast for
each nominee shall be recorded and published in a form to be determined by the NEC
as soon as possible following any election.? (Emphasis added) Although it is possible
to construe C(x) as excluding the incumbent, I would infer that this provision was
intended to encompass the votes cast for the incumbent in addition to those cast for
the challenger(s) in an election triggered under B(ii). It could therefore be argued
merely from the use of this term that it implies a requirement that the incumbent must
be nominated in order to be on the ballot paper. I think such an argument is dif?cult in
the extreme. The provisions dealing with the conduct of the election refer to
?candidates? rather than to ?nominees?. The different term used in for which

there is no clear explanation, may have resulted from unlike the preceding

72.

73.

interpreted like a statute. Nothing suggests that the different term was deliberate or

intended to do anything other than refer to those who had been on the ballot paper.

I consider that practice under previous versions of the rules support my interpretation
that the incumbent need not be nominated. As indicated above, the ?rst sentence of
the 2010 version (similarly to the 1993 version) of B(ii) provided that ?Where there is
no vacancy, nominations for leader shall be sought each year prior to the annual
session of party conference?. The remainder of that rule was identical to the present
rule (other than not referring to the EPLP). If the incumbent required nomination then
it would follow that s/he should be nominated when nominations are sought. If so,
then the second sentence of that rule applying the 20% threshold of support would
have applied to the nomination of the incumbent each year. It would have meant that
each year, the incumbent was required to attain a higher threshold of support than was
required of a candidate for a vacancy, regardless of whether anyone else was
nominated. The failure of the incumbent?s nomination to attain 20% support would
render it null and void which would again leave the party without a leader. That did
not re?ect practice under previous versions of the rule or the current one. In line with
the principles of interpretation set out above, that supports the view that at least
following 1993 when the rules were given their current structure making separate

provision if there is no vacancy, they have not required nomination of an incumbent.

I therefore conclude that an incumbent does not require formal nomination in order to
be deemed re-elected (to the extent that occurs) in a year in which there is no
challenge, and in a year where a contested election is triggered by a challenger under
B(ii), the incumbent does not require to be nominated in order to appear on the ballot
paper. The incumbent is therefore automatically on the ballot paper unless s/he resigns

(or otherwise becomes permanently unavailable) in the period between a challenger

achieve under B(ii) cannot be applied to an incumbent. However, my conclusion that
this threshold of support does not apply to the incumbent as a precondition of
inclusion on the ballot paper (and that it could not reasonably be concluded otherwise)
is not dependent upon my conclusion that the incumbent need not be formally
nominated. Even if the view were taken that s/he should be nominated, the

incumbent?s nomination is clearly not covered by B(i) or B(ii) as explained above.

Relevance of previous practice and rules and any material precedent

75.

76.

It is unnecessary to refer to the factual matrix in order to recognise that a purpose of
the rules is to make it more dif?culty to stand for election against an incumbent than
to stand for election to ?ll a vacancy. That is apparent from the face of the rules. The
development of the rules detailed above in any event supports that conclusion. The
original 5% threshold of support was raised to 20% primarin in order to reduce the
scope for challenges to an incumbent following Mr Benn?s challenge to Mr Kinnock.
The structure of the rules was not altered at that point so the new 20% threshold also
applied to elections to ?ll a vacancy. It was subsequently decided to apply a separate,
lower threshold in the case of a vacancy. That was done in view of the value identi?ed
in ensuring that an election for a vacancy was contested. It is apparent that no
corresponding value was identi?ed in making it easier to stand against an incumbent

because the higher 20% threshold was retained for such challenges.

I understand that nobody has been nominated to challenge an incumbent since 1993,
the year in which the rules were changed to make different provision depending upon
whether or not there is a vacancy to ?ll. There is therefore no precedent or established

practice in respect of the separate provision for challenges to an incumbent.

78.

79.

80.

?Unless consent to nomination is received and five percent of Commons Members

have indicated their support, nominations will be rendered null and void.?

The incumbents in 1981 and 1988 would have been expected, given the results, to
have attracted indications of support from more than 5% of MPs regardless of whether
this was perceived as required. I will assume, as has been reported, that Mr Kinnock
in particular was nominated by more than 5% of MPs and that his campaign
encouraged multiple nominations. That, however, does not establish a precedent for
requiring indications of support for an incumbent from more than 5% of MPs in order
to be on the ballot paper, even in respect of the rules that then applied. 1 have seen no
evidence of any general understanding that this was required. That some were of that
view (which is unclear) is not suf?cient. The number of views and beliefs that have
been reported about current eligibility requirements for incumbents re?ects the sense
of the principles of interpretation set out above by which custom and practice may be
legally relevant if it is certain and notorious or ?established, well known, and

unquestioned?.

In any event, even were there clear and readily ascertainable information that Mr
Kinnock or another incumbent sought the support of 5% of MPs in the context of a
belief that it was required to be on the ballot paper, the different structure of the rules
and absence of provision for challenges to an incumbent would deprive this precedent
of signi?cant value in interpreting the current rules. The established principles of
interpretation set out above would in any event afford no significant weight to a
precedent almost two decades old in the context of an absence of relevant practice

since. That is not a basis upon which to establish legally relevant custom and practice.

Whatever the facts and the contemporary understanding of them in 1981 and 1988. I

that the incumbent attain a threshold of support by a process of implication. To
become an implied rule, custom and practice must be certain, notorious, and
reasonable or, drawing upon authorities in the context of party and trade union rules,
?established, well know, and unquestioned? and capable of being readily ascertained
if not already known by all members. My review of publicly available information
indicates, at least, that any relevant practice is not readily ascertainable by ordinary

members.

81. Nor could a requirement that the incumbent attain any threshold of support be implied
by any other route recognised by the authorities on interpretation. I have already
considered whether there is any scope to construe from the express provisions any
implicit requirement that an incumbent attain some threshold of support as a
precondition to inclusion on the ballot paper. I have concluded that no reasonable
argument could be advanced in respect of the 15% threshold, the 20% threshold, or
for any other implicit threshold. Nor can it be reasonably be argued that it is necessary
to require the incumbent to attain any threshold of support in order to make the rules
work. As set out above, they are plainly workable on the basis that no threshold
applies to the incumbent. As con?rmed by the judgmentin Leigh (above),
?Implication should not be made of additional requirements of eligibility [for election]
over and above those expressed unless one is really driven to it?. That test could
hardly be further from being met in the case of a suggested implication of a

precondition to the incumbent?s inclusion on the ballot paper in a contested election.

The position of additional prospective contestants

82. I am instructed that ?in the event of a challenge contested by the incumbent Leader or

Deputy Leader?, I am to advise on ?what number (percentage) of the combined

83.

84.

85.

86.

There is no provision in the rules for inviting additional nominations when a contested
election is triggered by a challenge under B(ii). The fact that the current rules place
the onus on a potential challenger to seek nomination rather than inviting nominations
prior to annual conference indicates that it would be wrong to imply that further

nominations should be invited once a contested election is triggered.

Whether or not any invitation should or could be issued, there would be no possible
basis under the rules not to apply the 20% threshold to other prospective contestants.
In particular, and for the same reason that it could not apply to the incumbent, there
would be no basis for applying the 15% threshold in B0) which expressly applies in
?the case of a vacancy?. The incumbent would remain in of?ce unless or until evicted

by the election result. There is no vacancy.

Although there is no basis in the rules for inviting additional nominations, there is also
nothing in B(ii) that expressly limits the number of challengers to an incumbent at a
single election. Where there is no vacancy, the rules permit only one election per year.
They do not provide for a challenge by way of contested election against the

incumbent whenever a potential challenger attains the 20% threshold of support.

It could be argued that the effect of a potential challenger attaining that 20% threshold
is to trigger an election contested only by that challenger and the incumbent. The
effect, however, would be that other potential challengers who attained the 20%
threshold in good time before the election could not stand in that year?s election and
had to wait, at least, until the following year. I do not think, in the absence of express
provision, that the rules should be interpreted as permitting only one challenger to

stand against the leader at one time, given that an election can take place only once a

need not, of course, be included on the ballot paper if s/he attains the 20% threshold
too late for inclusion to be practical. This would turn on procedural decisions with
which I am not concemed as such procedural matters do not affect the answer to the
question of who should be included on the ballot paper and what, if any, threshold of

support contestants require for inclusion on the ballot paper.

Summary of conclusions and the answer to the question posed

87.

88.

It is of course possible to make the rules clearer and more comprehensive. The courts
have repeatedly noted that this is to be expected of such rules and that their
imperfection is no obstacle to their interpretation (see Jacques above and the cases
discussed therein). It is apparent from the authorities that imperfect drafting or
incomplete terms do not equate to ambiguity and that a robust and common sense
approach is to be taken to their meaning having regard to their purpose and context. It
would be possible to add a provision to the current rules, for the avoidance of doubt,
that the incumbent will be entitled to contest the election against any challenger who
emerges pursuant to rule B(ii), i.e. that s/he will automatically be included on the

ballot paper. That may facilitate the widest understanding of the effect of the rules.

. However, I do not consider that the rules as they stand are ambiguous in this regard or

open to serious or reasonable doubt, or that a court would find that they were.

I summarise my conclusions as follows. The 15% threshold of support applied in B(i)
has no relevance to any contestant in an election triggered by a challenge to an I
incumbent because on no view can this involve ?the case of a vacancy?. B(ii) permits
potential challengers to seek nomination in order to challenge the incumbent, and
provides that in this case, their nomination must attain a higher 20% threshold of

support to enable them to stand against the incumbent. There is no possible basis for

89.

90.

91.

clearest wording. There is in reality no wording pointing to such an interpretation.

It is not reasonably arguable that a requirement that the incumbent attain any threshold
of support in order to appear on the ballot paper can be inferred by any process of
interpretation of the provisions of the current rules, individually or as a whole. There
is no evidence capable of establishing a custom and practice that could point to the
contrary and in any event, no ambiguity that could be resolved by custom and
practice. On the basis of the available information taken at its highest, previous
challenges are incapable of establishing any legally relevant custom, practice, or
precedent applying any threshold of support to an incumbent. It is in particular clear
that no precedent supports any custom or practice that is ?certain and notorious?,
?established, well know, and unquestioned? or is readily ascertainable by ordinary

members .

In the absence of express provision or any basis for implying one, I also do not
consider that an incumbent requires nomination in order to appear on the ballot
against a challenger, or to be deemed re-elected (to the extent required) in a year in
which no challenger emerges. Any available argument that the rules require
nomination of the incumbent in the case of a contested election is weak. In any event,
at most, what could be required of the incumbent is formal nomination: the
incumbent?s nomination is not one covered by either B(i) or B(ii). This would not
alter my conclusion that the correct interpretation of the rules is that the incumbent
need attain no threshold of support to be on the ballot paper, nor my conclusion that
the contrary is not reasonably arguable on the basis of any process of interpretation

permitted by the authorities.

1 therefore answer the question posed by my instructions as follows. In the case of an

92.

of the PLP and members of the EPLP. Any challenger any other contestant) must
have the support of 20% of the combined Commons members of the PLP and

members of the EPLP in order to obtain a place on the ballot paper.

If Those Instructing have any queries or wish to discuss any aspect of this advice, they

should, of course, not hesitate to contact me.

Mark Henderson
Doughty Street Chambers
54 Doughty Street
London WC1

13 April 2016