Diana Neslen v David Evans (sued as a representative of all members of the Labour Party except the Claimants)
| Jurisdiction | England & Wales |
| Judge | Mr Justice Butcher |
| Judgment Date | 08 July 2021 |
| Neutral Citation | [2021] EWHC 1909 (QB) |
| Docket Number | Case No: QB-2020-004369 |
| Court | Queen's Bench Division |
[2021] EWHC 1909 (QB)
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
Royal Courts of Justice
Strand, London, WC2A 2LL
THE HONOURABLE Mr Justice Butcher
Case No: QB-2020-004369
Maya Lester QC and Malcolm Birdling (instructed by Bindmans LLP) for the Claimants
Rachel Crasnow QC and Tom Gillie (instructed by Blaser Mills LLP) for the Defendant
Hearing dates: 17 June 2021
Approved Judgment
THE HONOURABLE Mr Justice Butcher
The Claimants have brought Part 8 claims against the Defendant, as a representative of the Labour Party (‘the Party’), seeking declarations that in carrying out investigations into allegations of, or related to, anti-Semitism against the Claimants, the Party's conduct has been unfair and in breach of contract.
The Claimants make three specific complaints of unfairness:
i) First, that the Party's investigation and adjudication of complaints of anti-Semitism was in breach of the principles of natural justice and procedural fairness because it applied criteria contained in a Code of Conduct that the Party had not published nor made available to those who were subject to it. For reasons which will appear below, this declaration is now sought only by the First and Seventh Claimants (‘Ms Neslen’ and ‘Mr O'Driscoll’ respectively).
ii) Second, that it is unfair for the Party publicly to accept that the existing system for investigating anti-Semitism was procedurally unfair and that therefore a new independent procedure for investigating complaints of anti-Semitism was being put in place – which the Claimants contend the Party has accepted – and yet proceed with the investigations of the Claimants' conduct under the existing procedure.
iii) The Party has materially mis-stated the Claimants' obligations of confidentiality in the Notices of Investigation sent to the Claimants.
This judgment adjudicates on those complaints and whether the Claimants are entitled to any relief in relation to them. It is no part of this case, or this judgment, to determine whether any of the allegations of anti-Semitism made against the Claimants are or are not well-founded.
Before considering the three declarations sought, it is necessary to refer to the factual and legal background to the Claimants' claim.
The Legal Relationship between the Party and the Claimants
The Claimants are, or were, members of the Party. The Party is an unincorporated association. The relationship between the Party and its members is governed by the law of contract: Evangelou v McNicol [2016] EWCA Civ 817, [19]. The contract is on the terms set out in the Party's Rules, to which each member adheres when he or she joins the association (ibid). Because the nature of the relationship is governed by the law of contract, the proper approach to the interpretation of the Rules is governed by the ordinary principles as to the interpretation of contracts: Evangelou v McNicol, [20]–[23].
The current iteration of those Rules is contained in the Labour Party Rule Book 2020 (‘the Rule Book’).
Of particular relevance to the present claims are the terms of Chapter 2, Clauses I, 8 and 9 of the Rule Book. They provide:
“8. No member of the Party shall engage in conduct which in the opinion of the NEC [viz the National Executive Committee] is prejudicial, or in any act which in the opinion of the NEC is grossly detrimental to the Party. The NEC and NCC [viz the National Constitutional Committee] shall take account of any codes of conduct currently in force and shall regard any incident which in their view might reasonably be seen to demonstrate hostility or prejudice based on age; disability; gender reassignment or identity; marriage and civil partnership; pregnancy and maternity; race; religion or belief; sex; or sexual orientation as conduct prejudicial to the Party: these shall include but not be limited to incidents involving racism, antisemitism, Islamophobia or otherwise racist language, sentiments, stereotypes or actions, sexual harassment, bullying or any form of intimidation towards another person on the basis of a protected characteristic as determined by the NEC, wherever it occurs, as conduct prejudicial to the Party. The disclosure of confidential information relating to the Party or to any other member, unless the disclosure is duly authorised or made pursuant to a legal obligation, shall also be considered conduct prejudicial to the Party.
9. Any dispute as to whether a member is in breach of the provisions of sub-clause 8 shall be determined by the NEC in accordance with Chapter 1 Clause VIII above and the disciplinary rules and guidelines in Chapter 6 below, or by the NCC in accordance with Chapter 1 Clause IX above and the disciplinary rules and guidelines in Chapter 6 below. Where appropriate the NCC shall have regard to involvement in financial support for the organisation and/or the activities of any organisation declared ineligible for affiliation to the Party under Chapter 1.II. 5 or 3.C above; or to the candidature of the member in opposition to an officially endorsed Labour Party candidate or the support for such candidature. The NEC and NCC shall not have regard to the mere holding or expression of beliefs and opinions except in any instance inconsistent with the Party's aims and values, agreed codes of conduct, or involving prejudice towards any protected characteristic.”
Chapter 6 of the Rule Book contains, inter alia, the rules applicable to disciplinary investigations by the NEC. Chapter 6, Clause I.1.A provides:
“In relation to any alleged breach of the constitution, rules or standing orders of the party by an individual member or members of the party, the NEC may, pending the final outcome of any investigation and charges (if any), suspend that individual or individuals from office or representation of the party notwithstanding the fact that the individual concerned has been or may be eligible to be selected as a candidate in any election or by-election. The General Secretary or other national officer shall investigate and report to the NEC on such investigation. Upon such report being submitted, the NEC may instruct the General Secretary or other national officer to formulate charges against the individual or individuals concerned and present such charges to the NCC for determination in accordance with their applicable procedures. …”
Following the Party's annual conference in 2019, Chapter 6, Clause I.1.B was amended to include a direct power of exclusion by the NEC in certain circumstances, a power which has been called the ‘Fast-Track Procedure’. Chapter 6, Clause I.1.B of the Rule Book provides:
“In relation to any alleged breach of Chapter 2 Clause I.8 above by an individual member or members of the Party which involves any incident which in the NEC's view might reasonably be seen to demonstrate hostility or prejudice based on age; disability; gender reassignment or identity; marriage and civil partnership; pregnancy and maternity; race; religion or belief; sex; or sexual orientation, the NEC may, pending the final outcome of any investigation and charges (if any), suspend that individual or individuals from office or representation of the Party notwithstanding the fact that the individual concerned has been or may be eligible to be selected as a candidate in any election or by-election. The General Secretary or other national officer shall investigate and report to the NEC on such investigation. Upon such report being submitted, the NEC or a subpanel of Disputes Panel may exercise its powers under Chapter 1 Clause VIII.3.A.iii, provided that it is satisfied that the following conditions are met:
i. The proposed charge and all evidence to be relied upon have been put to the individual member or members under investigation;
ii. The individual member or members under investigation have been given a reasonable opportunity to submit any evidence and make any representations in response to the proposed charge;
iii. There is sufficient evidence in documentary or other recorded form to reasonably conclude that the charge is proven and justify the sanction proposed;
iv. The evidence relied upon is sufficient to conclude that the charge is proven and justify the sanction imposed without the reasonable need for witness evidence;
v. There is no other compelling reason to determine the matter by an oral hearing;
vi. No member of the panel taking the decision has been involved in the conduct of the investigation or making of recommendations as a result of the investigation.”
By Chapter 2, Clause II.7 of the Rule Book it is provided that:
“Members have the right to dignity and respect, and are to be treated fairly by the Labour Party. Party officers at every level shall exercise their powers in good faith and use their best endeavours to ensure procedural fairness for members.”
This express term covers much of the territory of what might otherwise be the subject of an implied term or terms: Williamson v Formby [2019] EWHC 2639 (QB), [24]. Whether an aspect of the express Chapter 2, Clause II.7 duty or as a result of an implied term, where a power or discretion is conferred upon the Party, that power or discretion must be exercised in good faith, and the Party must not act arbitrarily, capriciously or irrationally. This was common ground, and is consistent with Braganza v BP Shipping Ltd [2015] UKSC 17, [2015] 1 WLR 1661; Evangelou v McNicol, [24]; and Williamson v Formby, [23.5].
The Codes of Conduct
At Appendix 9, the Rule Book contains certain “NEC Codes of Conduct”. Those...
To continue reading
Request your trial
-
Dr Mohammad Emranul Haque v Mr Musleh Faradhi (sued on behalf of himself and all other Members of the Muslim Community Association)
...by the decision-maker would be better or more fair. Rather they must show that the procedure is actually unfair.” 132 Nelson v Evans [2021] EWHC 1909 (QB) concerned member disciplinary proceedings conducted by the Labour Party, which is an unincorporated association. Part of the claim was ......