Aathelstane Aamodt examines the circumstances in which the courts might get involved in the affairs of a political party that, like the Labour Party, is an unincorporated association.
The result of the Labour Party leadership election focussed a great deal attention on the mechanism that the Labour Party had in place for deciding the winner. The candidacy of Jeremy Corbyn, who is on the radical left of the party, attracted support from people who (broadly) either wanted him to win because they think that he will consign the party to electoral oblivion (e.g. members of the Conservative Party, or people who vote Conservative), or from people who wanted him to win because they think that he offers a new and laudable kind of politics that they can embrace, despite the fact that they do not agree with the stated goals and aspirations of the party (e.g. members of the Green Party and the Trade Union and Socialist Coalition).
Since the General Election in May, over 350,000 people have joined the Labour Party, with 106,000 as new party members, 148,000 new trade-union affiliated supporters and 113,000 £3 registered supporters. All of these new supporters and members were, under the party’s new rules, entitled to vote. However, the Labour Party, conscious of the motives of the people mentioned above, referred almost 3,000 of these applications to a special panel for review.
The conduct of general and local elections in this country is heavily regulated. In the event that an election is not conducted properly, the law will step in to render that election result void. However, what is the situation with a political party? Will the courts get involved if there are allegations that an election for party leader has not been conducted properly?
In answering this question the first thing that one needs to understand is what the Labour Party is legally. The Labour Party is, by its own admission, an unincorporated association, something that is “a creature of contract” (Conservative Central Office v Burrell  1 WLR 522 CA) and that is separate from a company, a partnership, or a trust. For instance, if the Labour Party was a trust then, given that its political purpose is overtly non-charitable, it would offend against the law on perpetuities because of the length of time that the Labour Party has existed. Unincorporated associations are not legal entitles that are distinct from the members that compromise it, and for them to be recognised as such requires the intervening power of a statute, as is the case with trade unions (Trade Union and Labour Relations (Consolidation) Act 1992, s.10)
The Labour Party is governed by a National Executive Committee (NEC), whose function is to “...oversee the overall direction of the party and the policy-making process.” If an unincorporated association like the Labour Party is in breach of its own rules, the remedy that an unhappy member may seek would be in respect of breach of contract, i.e. a private action.
The courts have on occasion concerned themselves with the internal affairs of the Labour Party.
In Lewis v Heffer  1 WLR 1061. there was a struggle for power in the Newham North-East local constituency Labour Party between two factions over whether Reg Prentice, MP, should be retained as parliamentary candidate. The struggle became so intense that the national party intervened through the National Executive Committee, by suspending all the officers and committees of the local party and taking over control itself. The plaintiffs claimed declarations that the NEC's resolutions were ultra vires and contrary to natural justice, and injunctions restraining them from implementing them. The Court of Appeal held that although the NEC had power to take the actions it had, and that any suspension of party members pending an inquiry imposed solely as a matter of good administration did not require compliance with the rules of natural justice, though such a suspension might have been invalidated if the NEC could have been shown to have the ulterior motive of promoting one faction over the other.
The powers of the NEC were again considered in Green v The Labour Party (1991) WL 11780048. The appellant, Brian Green, was a member of the Labour Party and a prominent political figure in St Helens. He was a councillor for the West Sutton ward on the St Helens Metropolitan District Council. The Group Whip was withdrawn from him in July 1990 when he was deputy leader of the Labour Group on that Council. In addition, he was suspended from office by the NEC when he was the deputy chairman of the St Helens South constituency Labour Party. He issued a writ claiming declaratory and injunctive relief against the Labour Party. The judge at first instance declined to grant the remedies that he sought. The Court of Appeal took the same view. Neill LJ held that : “I have come to the conclusion that the power to suspend in Clause IX(2)(h)(ii) [of The Rule Book of the Labour Party] can properly be regarded as an adjunct of the investigative process and is in no sense a penalty. I am satisfied that there was no breach of any principle of natural justice in the imposition of this suspension in these circumstances.”
In these two cases we see that the courts are prepared to become involved in the affairs of unincorporated associations if a disciplinary tribunal acts ultra vires or is in a breach of the principles of natural justice. The courts will not, as a rule, become involved in the dispute resolution mechanisms of tribunals (see Stewart, Campbell & Baughen, “The Law of Unincorporated Associations” (OUP 2011), 6.50).
A recent case that is perhaps more on point with the current events in the Labour Party is Mortimer & Ors. v The Labour Party (2000 WL 538). Six members of the London Region of the Manufacturing Science and Finance Trade Union sought a declaration against the Labour Party in terms that were designed to establish that the claimants had a right to participate in the procedure for the selection of the Labour Party's candidate for Mayor of London in the (then) forthcoming mayoral election. Jonathan Parker J held that “... there is no privity of contract between the claimants and the Labour Party in relation to affiliation, nor can the Claimants assert any contractual right in relation to the selection process. It follows that in my judgment the Claimants as individual members of the MSF ... have in any event no standing to bring this claim against the Labour Party.”
Any potential challenge to the election of Mr Corbyn would need to be concerned with a breach of the Labour Party’s rules if it was to stand any chance of success. The breach (or indeed beaches) would to be so serious that the courts would be prepared to grant a declaration and injunction. On the basis of the news to which we have been privy, it seems unlikely that any such challenge would be successful. The Labour Party’s system of electing its new leader is obviously flawed. One imagines that judges would feel it is not their responsibility to try and fix it.