In the post-referendum turmoil facing the Labour Party, there are increasing questions about whether the party might split. Despite shadow cabinet resignations and a Parliamentary Labour Party vote of no confidence, Jeremy Corbyn seems determined to hang on, and to force a contest if necessary. If that proceeds, a split looks very likely. But what would this mean in organisational terms: both inside parliament and beyond? Meg Russell investigates.

Events in the Labour Party over the last week have been extraordinary. Accused of a lacklustre performance in the Brexit referendum, party leader Jeremy Corbyn has lost the majority of his frontbench through resignations – sparked by his dramatic sacking of Shadow Foreign Secretary Hilary Benn. Labour MPs have now agreed a motion ‘That this PLP has no confidence in Jeremy Corbyn as Leader of the Parliamentary Labour Party’, by 172 votes to 40. Yet still Corbyn seems determined to hang on, and to force a contest in the wider party, hoping to retain the support of his activist base. As noted in a previous post this follows rule changes turning the Labour leadership contest into a fully ‘one member one vote’ process, and giving voting rights to ‘supporters’ who signed up for just £3. Left-wing activists flooded into Labour to vote for Corbyn, with the unprecedented consequence in British politics that a parliamentary party was left with a leader which it did not support. The problem in the referendum was not only that Corbyn campaigned half-heartedly, and was even accused of actively undermining the Labour Remain campaign, but that his presence from the very outset meant that the media and public had ceased taking Labour seriously.

The prospect of a contest raises the very serious possibility of a Labour Party split. If there were a contest and Corbyn won, the majority of his MPs might well feel forced to abandon the party. If he lost, he and his supporters might be forced out. Indeed a split might even be seen by some in the party as preferable to a contest – which would run all summer and could only have a messy end. But how would a Labour Party split work in practice? What, in particular, would be the immediate parliamentary consequences? What are the wider organisational repercussions? This post focuses particularly on the former, but touches on the latter – concluding that they are far more difficult.

On the parliamentary side there are three immediate considerations. The first, which is relatively straightforward, is the question of who becomes the official opposition. But there are various scenarios in terms of who would become the second largest opposition party, which could have consequences beyond Labour. An additional question which need not cause too much difficulty concerns distribution of committee seats. A trickier question relates to access to the ‘Short Money’ which funds opposition parties. I consider each of these in turn, before turning to wider issues.

The official opposition and second largest opposition party

House of Commons standing orders give certain formal privileges to Her Majesty’s Official Opposition – described on the parliamentary website as ‘the largest political party in the House of Commons that is not in government’. These include the right to determine the subject for 17 of the 20 ‘opposition days’ for debate in the Commons each session (standing order 14(2)), and the right to chair the prestigious Public Accounts Committee (standing order 122B(8(f))). In practice, the privileges of the Official Opposition go far further, for example through frontbenchers’ established right to speak at the start and end of most debates, and to intervene during oral question times (including Prime Minister’s Questions), plus an expectation that the Speaker will select important opposition amendments for debate at report stage of government bills. Crucially, Commons standing orders also recognise the ‘second largest opposition party’ (standing order 14(3)), which enjoys similar benefits at a reduced level. Hence when Labour was in government the Liberal Democrats could choose topics for three opposition days per session, and enjoyed rights to some (albeit fewer) interventions by frontbenchers during debates and question times. In the 2015 parliament those privileges rest with the SNP, which currently has 54 MPs.

It seems fairly straightforward, then, that if the Labour Party split in two one part of it would remain the official opposition. If the majority of Labour MPs chose to break away from Corbyn – which seems likely – he would no longer be the Leader of the Opposition. The privileges associated with being the main opposition party would immediately largely pass to the majority group and its leader. If somehow Corbyn maintained support of the majority of his parliamentary colleagues – which is difficult to envisage – the reverse would clearly be true. But a key question is also who becomes the ‘second largest opposition party’. If Corbyn retained more than 54 supporters they would still have significant visibility, and the SNP would lose its current privileges. If he retained only the 40 MPs who expressed confidence in his leadership, or thereabouts, his grouping would largely be eclipsed.

Committee seats

The question of seats on select committees could prove somewhat messy, but probably does not present major problems, and if it did these could be resolvable. Standing orders do not specify this explicitly, but in practice both the chairs of select committees and the membership of each committee are divvied up roughly proportionately to party strengths in the chamber. Under the changes wrought by the Wright committee in 2010, the whips’ agree the allocation of chairs between themselves at the start of the parliament, before elections take place. Elections are then held within the parties for committee members. In the event of a Labour Party split there might be a need for reallocation of these positions, and in particular the chair of the Public Accounts Committee (as indicated above) is allocated to a member of the Official Opposition. There is no clear mechanism for reallocating seats between general elections, but there is no particular reason to think that major iniquities would occur as a result of a split. In practice if they did, change might be negotiated between the parties, perhaps adjudicated by the Speaker if necessary.

Short money and other opposition funds

The question of opposition funding would be likely to prove particularly delicate in the event of a split. The amount of money available is substantial, and important to the parties in order to maintain their parliamentary operation. The main source of funding is the Short money, which in 2015–16 provided the Labour Party with £5,777,232 (plus £577,871 of ‘Cranborne Money’ in the Lords). This money is allocated according to a complex formula. In 2015–16 £710,118 was payable directly to the office of the Leader of the Opposition. Based on the logic above, if the majority of the current PLP split from Labour, that group’s leader would automatically gain this support. But the great bulk of the Short money is payable based on votes and seats won at the previous general election: approximately £17,000 for every seat, and £34 for every 200 votes (for full details see here). Hence whichever group split from Labour (the majority or the minority, the Corbyn group or his opponents) would in the short term lose this share, having not fought the general election as a party. This might appear attractive to Corbyn supporters – a rump group of 40 MPs with funding of £5 million. But this situation would be so plainly iniquitous that it would likely be resolved in a different way. The allocation of Short money is set out not in legislation, but in a resolution of the House of Commons. The House of Commons could hence agree a new formula very readily by majority vote. This would depend in practice on the support of the government, but might again be a question on which the Speaker could help facilitate an agreement. Of course, this situation could also be resolved if there were an autumn general election – which leads to the wider questions below. A separate funding question relates to the ’policy development grants’ administered by the Electoral Commission, which are also based on a mixed formula including share of the vote. These might also need to be renegotiated.

Other organisational questions

Although there would doubtless be some confusion, and perhaps bitter arguments about money, the parliamentary arrangements after a party split would hence probably be quite straightforward. In short, if a majority group broke away from Labour it would quickly obtain most of the privileges of the current opposition. Although it might be subject to argument, this would probably apply even if those breaking away simply called themselves ‘Independent Labour’ rather than legally splitting from the existing Labour Party and resigning their membership. This could, of course, ultimately result in their expulsion from the Labour Party – though this would be likely to depend on whether the Corbyn faction retained a majority on the party’s National Executive Committee.

This situation becomes more complex if a general election is held. The new grouping could not run as a political party without registering as such with the Electoral Commission, and thus becoming more explicitly and legally separate from the Labour Party. But candidates could run as independents, and the situation would presumably by then be relatively well-known to the electorate. Many candidates would also be well-known to their local voters.

If, either immediately or in the longer term, the breakaway parliamentary grouping chose to register legally as a separate political party, there would be a whole range of other obstacles to consider, some of which might descend into legal disputes:

• A new party name would need to be registered with the Electoral Commission. There are around 500 parties already registered in this way, but notably only eight appear to contain the word ‘Labour’.
• The majority grouping would be walking away from all of the assets of the Labour Party, most notably the buildings that it owns. This would present challenges to local parties, many of which own their own properties. Many local parties, as well as the national party, would obviously be likely to split.
• Those remaining with the original Labour Party would retain its assets, but also its debts. The Labour Party’s finances have often been somewhat perilous. A big question would be which grouping financial supporters (both trade unions and major donors) chose to support after a split. A rump Labour Party with little electoral or financial support could ultimately face collapse.
• In terms of personnel, there would be very big questions regarding party staff, representatives at other levels (local councillors, members of devolved bodies and MEPs) as well as the wider membership.
• The new group would need a rulebook, and might in the short term simply adopt the existing Labour Party rules, and amend these over time. An immediate priority might be reforming the rules for leadership elections!

While the parliamentary questions might be relatively easily resolved in the short term, some of these bigger questions could prove very difficult indeed. The easiest end to this saga is clearly that Corbyn gives in to the growing chorus of pleas to step down. If he doesn’t, all of this could soon become reality.

About the author

Professor Meg Russell is the Director of the Constitution Unit.