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The Labour party will elect a new leader next week and – according to all the predictions from political hacks – it is likely to be the same leader that they currently have. Jeremy Corbyn was elected leader of the Labour Party last year; but a few months ago the party’s MPs delivered a devastating vote of no confidence – with 172 MPs voting against him and only 40 supporting him. A new election victory is unlikely to convince the majority of those 172 MPs that they should now give Jeremy Corbyn their support.

Much of the media reporting of the chaos in the Labour party has concentrated on the personalities involved; very few have looked at the constitutional implications. But when you do consider the constitutional situation, the solution is clear.

Labour party members have every right to elect the leader of their party. What they do not have a right to do is select who is the Leader of Her Majesty’s Loyal Opposition in the House of Commons. It is a fundamental principle of our democracy that Parliament is sovereign; and the part of Parliament made up of Labour MPs have rejected Jeremy Corbyn as leader.

It is not impossible – or unheard of – for political parties to have a different leader than the leader of their Westminster MPs.

The leader of the SNP’s Westminster group is Angus Robertson. But he is not the party leader – that falls to Nicola Sturgeon, who is not even a Member of Parliament.

Similarly, Plaid Cymru have three MPs – but not one of them lead the party. The party’s leader is Leanne Wood.

The UKIP leader is Diane James. Neither she, nor Nigel Farage who held the post until their party conference last week, are MPs. UKIP’s sole MP, Douglas Carswell, did not stand in the party’s leadership election.

In 2010, Caroline Lucas was elected as the Green Party’s first – and only – MP. But she did not become party leader until earlier this month when she – and campaigner Jonathan Bartley – won the leadership election on a joint-ticket. So for six years the party’s leader was not its MP and even now its leadership is shared between an MP and a non-MP.

Theresa May became leader of the Conservative Party on the evening of Monday 11 July 2016; but she did not become Prime Minister until two days later. Even though she had become the leader of the largest party in Westminster, she could not take on the role of Prime Minster until the Queen was free to meet with David Cameron to accept his resignation and then meet with Theresa May to ask her to form a government. And so for two days the Conservative Party had two different holding the posts of party leader and Westminster group leader.

These are not archaic constitutional anomalies of the past. This is our constitution of today. There is no reason why the leader of a party should be the leader of the Westminster group of MPs. So, how does this apply to the chaos in the Labour Party?

Party members have every right to choose their party leader. That should be the number one rule for political parties (although, until recently, only the Liberal Democrats held this position). But they have no right to dictate what happens in Parliament.

Parliament’s sovereignty means that it is actually anti-democratic – under our constitution and political system – for people who have not been elected as MPs to seek to dictate what happens in Parliament.

As it stands now, Jeremy Corbyn should be the leader of the Labour Party but he should not be the Leader of the Opposition. He does not have the support of the majority of the group he seeks to lead in Westminster and so, constitutionally, should not occupy that position.

If the political pundits are right (and I do not like to pre-judge or pre-guess an election – it seems to me to be disrespectful to the electorate) and Jeremy Corbyn is re-elected as Labour leader next week; then Labour MPs at Westminster have two choices: they can either rally behind him and, together, form an effective opposition; or they can elect somebody to lead them as a Westminster group and that person becomes the Leader of the Opposition.

People may argue that this is contrary to the Labour Party constitution. I have no idea – but the Labour Party constitution can only bind the Labour Party. It cannot bind Parliament and our offices of state.

Incidentally, the same would apply if Labour were in government. Under the Fixed-term Parliaments Act 2011, a Prime Minister whose government loses a no-confidence vote does not face an immediate general election (as would traditionally have happened in the past). Now, a 14-day period is triggered during which another member of the governing party could seek to win the support of sufficient MPs to form a new government with the support of the House. No party would be able to hold a leadership election within this timescale leading to another scenario in which the leader if a party’s Westminster group of MPs is different from the elected party leader.

The shambles in the Labour Party is bad for Labour – but it is bad for all of us. The country needs an effective opposition – no matter which party is in government.

But, as it stands, with the support of only 40 of his party’s MPs, there is no basis that I can see on which Jeremy Corbyn is afforded the status of Leader of the Opposition.

If, as suspected, he wins next week’s election, Labour MPs should either back him or elect from amongst themselves somebody else to lead the Opposition. The constitution demands it.

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