Rugby, Recreation Grounds and Race‐Relations: Punishment for Silence

DOIhttp://doi.org/10.1111/j.1468-2230.1985.tb00852.x
AuthorT. R. S. Allan
Publication Date01 Jul 1985
NOTES
OF
CASES
RUGBY, RECREATION GROUNDS
AND
RACE-RELATIONS: PUNISHMENT
FOR
SILENCE
Wheeler
v.
Leicester City Council’
presented, in stark and classical
form,
a constitutional issue of the first importance: the proper
reconciliation of the requirements of the doctrine of parliamentary
sovereignty, on the one hand, and those of the rule of law, on the
other. In their efforts to identify the intention of Parliament in
enacting the Race Relations Act
1976 s.71,
Forbes J., at first
instance, and the majority of the Court of Appeal (Ackner L.J.
and Sir George Waller) overlooked the wider responsibilities of
their judicial function. As Lord Wilberforce observed in
Black-
Clawson International Ltd.
v.
Papierwerke Waldhof-Aschaffenburg
A.
G.
,*
repetition of the statement that it is the role of the courts to
ascertain the will or intention of Parliament is apt to lead to
neglect
of
the important element of judicial construction. That
element is the foundation of individual freedoms under our
constitution. “This power which has been devolved upon the judges
from the earliest times is an essential part of the constitutional
process by which subjects are brought under the rule of law-as
distinct from the rule of the King or the rule of Parliament
.
.
.’,
Six
members of the Leicester Football Club brought proceedings
for judicial review of the decision of Leicester City Council to
suspend the Club from using a public recreation ground for
12
month^.^
The English Rugby Football Union had accepted an
invitation to take a touring side to South Africa and three players
from the Club, including the well-known “Dusty” Hare, were
included in the team. In pursuance of its policy to discourage
sporting links with South Africa, the Council required the Club to
press the Rugby Football Union and the three Club players to call
off the tour. In a written response, the Club stated that it agreed
with the Council in condemning apartheid and had informed the
players of the views of the anti-apartheid movement. However, the
Club recognised that differences of opinion existed over the way in
which apartheid should be opposed, and considered that its
members, as amateur sportsmen, had individual choices as to when
and where to play. The decision to ban the Club from using the
recreation ground was imposed as a sanction for its failure to
condemn the tour in accordance with the Council’s policy.
Forbes J.4 rejected a submission that the local authority had an
unfettered discretion in its allocation of pitches: it had to hold the
*
[1975] A.C. 591, 629.
1985
2
All
E.R.
151;
The
Times,
March 15, 1985.
The Council held and administered the ground pursuant
to
the Open Spaces Act
1906 in trust
to
allow its enjoyment by the public as an open space.
Q.B.D.;
C0/1114/84:
LEXIS
transcript: Marten Walsh Cherer.
448

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