Evangelou and Others v McNicol (sued as a representative of all members of the Labour Party except the Claimants)
| Jurisdiction | England & Wales |
| Judge | Mr Justice Hickinbottom |
| Judgment Date | 08 August 2016 |
| Neutral Citation | [2016] EWHC 2058 (QB) |
| Court | Queen's Bench Division |
| Docket Number | Case No: HQ16X02575 |
| Date | 08 August 2016 |
[2016] EWHC 2058 (QB)
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
Royal Courts of Justice
Strand, London, WC2A 2LL
Mr Justice Hickinbottom
Case No: HQ16X02575
Stephen Cragg QC, Nikolaus Grubeck and Imogen Proud (on judgment) (instructed by Harrison Grant) for the Claimants
Peter Oldham QC, Julian Milford and Edward Capewell (on judgment) (instructed by William Sturges LLP) for the Defendant
Hearing date: 4 August 2016
Introduction
On 28 June 2016, Jeremy Corbyn MP, the Leader of the Labour Party ("the Party"), lost a vote of no confidence by the members of the Parliamentary Labour Party of which he is, ex officio, also Leader; and, on 11 July, Angela Eagle MP formally announced her intention to challenge Mr Corbyn's leadership of the Party, having obtained the support of 20% of Parliamentary Labour Party and the European Parliamentary Labour Party. Under the Party's rules, that triggered a leadership election.
The following day, the National Executive Committee of the Labour Party ("the NEC") met to agree the procedure and timetable for that election, for which it was responsible. It resolved that those allowed to vote would be:
i) members of the Party who had held six months' continuous Party membership as at that day (i.e. who had been members since 12 January 2016);
ii) affiliated supporters; and
iii) registered supporters of the Party of over 18 years of age, who were on the electoral role, whose applications for registration were received between 18 and 20 July 2016, and who had paid a fee of £25.
The Claimants each became members of the Party between 12 January and 12 July 2016. As such, because of the six month membership requirement, they cannot vote in the leadership election as members; although the NEC has confirmed that those who are adults can vote as registered supporters if, in addition to being members, they also applied to be registered supporters (with the appropriate fee) in the window of 18 to 20 July 2016.
In this action, the Claimants' primary claim is that the six month membership condition imposed by the NEC was in breach of the Labour Party's constitution as set out in its 2016 Rule Book ("the Rule Book"), and thus in breach of the contract that mutually binds members of the Party. They seek an order for specific performance of that contract, to enable them (and others in their position) to vote as members in the leadership contest. Alternatively, they say that statements made on behalf of the Party that, if they became members, they would be allowed to vote in the leadership election, resulted in an additional contract term, outside the Rule Book, to that effect; or amounted to a material misrepresentation.
The Fifth Claimant, FM, is a minor; and, in the further alternative, he challenges the age restriction on registered supporters on the ground that it is discriminatory. That restriction means that, in practice, he cannot vote in the leadership contest at all, either as a member or as a registered supporter.
The Party is an unincorporated association. The Defendant, Iain McNicol, is the General Secretary of the Party, sued as a representative of the members of the Party.
Before me, Stephen Cragg QC and Nikolaus Grubeck have appeared for the Claimants, and Peter Oldham QC and Julian Milford for the Defendant. I thank them all for their submissions, and their commendable efforts in ensuring that this claim was prepared in good time and in good order.
The Labour Party Rule Book: The Law
As recognised by this court in Choudhry v Treisman [2003] EWHC 1203 (Ch) ("Choudhry"), the Labour Party is an unincorporated association with rules, currently set out in the Rule Book, which constitute a contract to which each member adheres when he joins the Party.
It is well-established that:
i) A person who joins an unincorporated association does so on the basis that he will be bound by its constitution and rules, if accessible, whether or not he has seen them and irrespective of whether he is actually aware of particular provisions ( John v Rees [1970] 1 Ch 345 at page 388D-E).
ii) The constitution and rules of an unincorporated association are generally regarded as intended to be comprehensive, and further terms will not readily be implied ( Dawkins v Antrobus (1881) 17 Ch D 615 at page 621 ("Dawkins") per Sir George Jessel MR, without demur from the Court of Appeal on appeal).
iii) The constitution and rules of an unincorporated association can only be altered in accordance with the constitution and rules themselves ( Dawkins at page 621, Harrington v Sendall [1903] Ch 921 at page 926 and Re Tobacco Trade Benevolent Society (Sinclair v Finlay) [1958] 3 All ER 353 at page 355B-C).
iv) The proper interpretation of the constitution and rules of an unincorporated association, like any other contract, is generally a matter of law for the court. The court focuses on the wording of the contract as it stands. If the words are clear and unambiguous, then there is no need to look outside them. However, if the natural and ordinary meaning of the words is unclear or ambiguous, then the court will consider the relevant context, being concerned to identify the intention of the parties by reference to "what a reasonable person having all background knowledge which would have been available to the parties would have understood them to be using the language in the contract to mean" ( Chartbrook Limited v Persimmon Homes Limited [2009] UKHL 38 at [14] per Lord Hoffmann; recently approved in Arnold v Britton [2015] UKSC 36 at [15] per Lord Neuberger of Abbotsbury PSC). I consider this proposition, uncontroversial so far as it goes, in the context of the specific provisions of the Rule Book below (see paragraphs 14–16).
In this case, the Rule Book thus generally sets out the rights and obligations of each Party member in relation to other Party members, including the scope of powers the organs of the Party such as the NEC.
The Labour Party Rule Book: The Provisions
Chapter 1 of the Rule Book sets out "Constitutional rules". Clause IV(1) and (2)(C), and Appendix 1 to the Rule Book (see paragraph 23 below), emphasise the commitment of the Party to open democratic values.
Clause VI(1) establishes the Labour Party Conference, in which power within the Party ultimately resides. That clause provides that:
"The work of the Party shall be under the direction and control of Party conference…. Party conference shall meet regularly once in every year and also at such other times as it may be convened by the NEC."
Clause I(4) provides that:
"The Party shall give effect, as far as may be practicable, to the principles from time to time approved by Party conference."
Still within Chapter 1, Clause II(1) establishes the NEC, "which shall, subject to the control and directions of Party conference, be the administrative authority of the Party". The NEC is therefore the executive administrator of the Party, exercising powers as prescribed in the Rule Book. It has an express obligation "to uphold and enforce the constitution, rules and standing orders of the Party…" (Chapter 1 Clause VII(3)(A)); and it particularly bears the obligation to give effect to the principles approved by party conference.
Although the Rule Book may be amended only by Party conference (Chapter 1 Clause X(4)), Clause X(5) provides:
"For the avoidance of doubt, any dispute as to the meaning, interpretation or general application of the constitution, standing orders and rules of the Party or any unit of the Party shall be referred to the NEC for determination, and the decision of the NEC thereupon shall be final and conclusive for all purposes. The decision of the NEC subject to any modification by Party conference as to the meaning and effect of any rule or any part of this constitution and rules shall be final."
That clause was considered by Stanley Burnton J in Choudhry, where he said (at [68]):
"The members of the Party have agreed by [this clause] that it is the NEC who shall determine disputes as to the interpretation of the rules. The effect of the provision is that the NEC can adopt and apply any honest and reasonable interpretation of the rules."
Mr Oldham relied upon that passage, and urged me to take a similar approach in this case. However, whilst of course those observations of Stanley Burnton J are worthy of considerable respect:
i) They were made in an ex tempore judgment on an application for interim relief. They were also obiter: the judge concluded that the interpretation of the rules adopted by the NEC in that case was not only honest and reasonable, but "correct" (see Choudhry at [70]).
ii) As Stanley Burnton J accepted, in considering the rules, there is a "correct" interpretation, i.e. one that is right as a matter of law. Other interpretations are wrong as a matter of law. I have the same misgivings as Foskett J (see Foster v McNicol [2016] EWHC 1966 (QB) ("Foster"), a judgment arising out of a different decision made by the NEC at that same 12 July 2016 meeting, at [57]): it is difficult to see how a court could conclude that an erroneous interpretation of the rules was reasonable.
iii) It is not clear whether Stanley Burnton J's observations on Clause X(5) were made purely on the basis of the words used in that clause, or whether he had in mind past authorities. He does not refer to Dawkins in his judgment – it is not clear whether he was even referred to that authority – but the concepts to which he alludes are considered there. The case concerned...
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