This is what I think happened in the Courts who have I believe let the Labour Party’s members down.
The claimants argued that their exclusion from the leadership voting roll was ultra-vires because the NEC, through the rules and precedent could not set a freeze date aka a longevity requirement on participants in the Leadership vote. They also argued that the Labour Party had promised them a vote as part of their joining contract and that this couldn’t be taken away from them.
The High Court found that the NEC could not set a retrospective freeze date. It therefore did not address the issue of the web site promise, nor if the decision had been legally irrational. The judge was clear that in his view excluding what amounts to 25% of the membership was irrational. I don’t know if last years precedents which allowed people to join and vote and set aside the provisional membership period for the leadership and London mayor candidate selection were any part of his consideration.
The Labour Party appealed on the grounds that the rules did allow them to set a retrospective freeze date and won. The Court of Appeal stated that the powers of the NEC were pretty much to do what they liked subject to being required to not behave in an arbitrary, capricious, perverse and irrational fashion. They didn’t comment on whether they thought excluding 25% of the membership actions was arbitrary, capricious, perverse or irrational. They also did not consider if the exclusion was a breach of contract, or lying, in a more old fashioned vocabulary.
I don’t know if the claimants had appealed to the Supreme Court if they would have been able to get the issues of the promise and irrationality into the court, but by ignoring the question of irrationality the Court of Appeal has allowed the NEC to exclude the 25% of its membership which in my book is arbitrary, capricious, perverse and irrational.
I don’t think it serves the membership well and it will encourage future challenges to be on the basis of bad faith. This is worse than asking the courts to arbitrate on the rules.
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