Triesman v Ali and another
| Jurisdiction | England & Wales |
| Judgment Date | 07 February 2002 |
| Neutral Citation | [2002] EWCA Civ 93 |
| Court | Court of Appeal (Civil Division) |
| Date | 07 February 2002 |
| Docket Number | Case No: A1/2001/1012/EATRF |
[2002] EWCA CIV 93
IN THE SUPREME COURT OF JUDICATURE
COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM
THE EMPLOYMENT APPEAL TRIBUNAL
Royal Courts of Justice
Strand,
London, WC2A 2LL
Lord Justice Peter Gibson
Lord Justice Mantell and
Lady Justice Arden
Case No: A1/2001/1012/EATRF
Mr. John Cavanagh Q.C. and Mr. T Restrick (instructed by Messrs Gregory, Rowcliffe and Milners London for the Appellant)
Mr. Robin Allen Q.C. and Mr. Paul Epstein (instructed by The Litigation Department of the Commission for Racial Equality of London SW1 for the Respondents)
Peter Gibson L.J. (giving the judgment of the court):
In late 1998 the Respondents, Zafar Ali and Harmohinderpal Singh Sohal, both members of the Labour Party, were suspended by the National Executive Committee ("the NEC") of the Labour Party from office within or representation of the Labour Party pending the outcome of a disciplinary investigation into alleged breaches of the Rules of the Labour Party. The Respondents complain that by that suspension they were discriminated against unlawfully on racial grounds. The central question on this appeal is whether such complaint falls within the scope of s. 12 (1)(c) of the Race Relations Act 1976 ("the 1976 Act") so that the Employment Tribunal ("the Tribunal") has jurisdiction to hear the Respondents' complaints. The Appellant is the General Secretary of the Labour Party and is sued on behalf of all the members of the party ("the Labour Party"). When the proceedings commenced, Margaret McDonagh was the General Secretary, but she has been succeeded by David Triesman. The Labour Party claimed that the Tribunal did not have jurisdiction. That claim was rejected by the Tribunal. The Labour Party's appeal was dismissed by the Employment Appeal Tribunal ("the EAT") which also rejected a claim that the County Court had jurisdiction under s. 25 of the 1976 Act. The Labour Party appeals to this court with the permission of the EAT.
Statutory provisions
It is convenient at this point to set out the sections of the 1976 Act most relevant to this appeal. In Part II, headed "Discrimination in the employment field", s. 12 (so far as material) provides:
"12 Qualifying bodies
(1) It is unlawful for an authority or body which can confer an authorisation or qualification which is needed for, or facilitates, engagement in a particular profession or trade to discriminate against a person —
(a) in the terms on which it is prepared to confer on him that authorisation or qualification; or
(b) by refusing, or deliberately omitting to grant, his application for it; or
(c) by withdrawing it from him or varying the terms on which he holds it.
(2) In this section —
(a) "authorisation or qualification" includes recognition, registration, enrolment, approval and certification;
(b) "confer" includes renew or extend."
By s. 78 (1) ""profession" includes any vocation or occupation".
In Part III, headed "Discrimination in other fields", s. 20 provides:
"20 Discrimination in provision of goods, facilities or services
(1) It is unlawful for any person concerned with the provision (for payment or not) of goods, facilities or services to the public or a section of the public to discriminate against a person who seeks to obtain or use those goods, facilities or services —
(a) by refusing or deliberately omitting to provide him with any of them; or
(b) by refusing or deliberately omitting to provide him with goods, facilities or services of the like quality, in the like manner and on the like terms as are normal in the first-mentioned person's case in relation to other members of the public or (where the person so seeking belongs to a section of the public) to other members of that section.
(2) The following are examples of the facilities and services mentioned in subsection (1) —
(a) access to and use of any place which members of the public are permitted to enter;
(b) accommodation in a hotel, boarding house or other similar establishment;
(c) facilities by way of banking or insurance or for grants, loans, credit or finance;
(d) facilities for education;
(e) facilities for entertainment, recreation or refreshment;
(f) facilities for transport or travel;
(g) the services of any profession or trade, or any local or other public authority."
Also in Part III s. 25 provides:
"25 Discrimination: associations not within s 11
(1) This section applies to any association of persons (however described, whether corporate or unincorporate, and whether or not its activities are carried on for profit) if —
(a) it has twenty-five or more members; and
(b) admission to membership is regulated by its constitution and is so conducted that the members do not constitute a section of the public within the meaning of section 20 (1); and
(c) it is not an organisation to which section 11 applies.
(2) It is unlawful for an association to which this section applies, in the case of a person who is not a member of the association, to discriminate against him —
(a) on the terms on which it is prepared to admit him to membership; or
(b) by refusing or deliberately omitting to accept his application for membership.
(3) It is unlawful for an association to which this section applies, in the case of a person who is a member or associate of the association, to discriminate against him —
(a) in the way it affords him access to any benefits, facilities or services, or by refusing or deliberately omitting to afford him access to them; or
(b) in the case of a member, by depriving him of membership, or varying the terms on which he is a member; or
(c) in the case of an associate, by depriving him of his rights as an associate, or varying those rights; or
(d) in either case, by subjecting him to any other detriment.
(4) For the purposes of this section —
(a) a person is a member of an association if he belongs to it by virtue of his admission to any sort of membership provided for by its constitution (and is not merely a person with certain rights under its constitution by virtue of his membership of some other association), and references to membership of an association shall be construed accordingly;
(b) a person is an associate of an association to which this section applies if, not being a member of it, he has under its constitution some or all of the rights enjoyed by members (or would have apart from any provision in its constitution authorising the refusal of those rights in particular cases)."
S. 11 in Part II applies to "an organisation of workers, an organisation or employers, or any other organisation whose members carry on a particular profession or trade for the purposes of which the organisation exists". S. 26 provides an exception from s. 25 for associations whose main object is to enable the benefits of membership to be enjoyed by persons of a particular racial group not defined by colour.
The facts
In or about 1984 each of the Respondents became a member of the Labour Party. Each held office within the Slough Branch of the Labour Party from time to time. On 1 May 1997 Mr. Sohal was elected a Labour Councillor in the Slough Unitary Authority for two years. In the ordinary course he would have expected to seek re-selection by the Labour Party in November 1998 with a view to standing in the local elections in May 1999. In October 1997 Mr. Ali applied to become a Labour candidate at those elections. But he claims that in November and December 1997 he encountered hostility to his candidacy which he attributed to his race. Mr. Sohal claims that in May 1998 he found that he would be prevented from standing for re-selection and he attributed that to his race.
Allegations were made to the NEC of irregularities relating to the recruitment of membership and the conduct of meetings in the Slough Branch. As a result the NEC established a Task Force in July 1998 to investigate those allegations and to make recommendations to a meeting of the NEC to be held in September 1998. The Task Force made an interim report to the NEC. On considering that, the NEC decided at its meeting on 22 September 1998 to suspend both the Respondents from office or representation of the Labour Party pending the final outcome of a disciplinary investigation into their conduct within the Slough Branch. That step was taken under the power conferred on the NEC, the administrative authority of the Labour Party, by Rule 6A of the Labour Party Rule Book 1998 ("the Rules"). This provides:
"6A.1 The NEC shall take such disciplinary measures as it feels necessary to see that all party members and officers conform to the constitution, rules and standing orders of the party; such powers shall include:
(a) 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 National Constitutional Committee for determination in accordance with their rules.
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6A.3 A 'suspension' of a member whether by the NEC in pursuit of 6A.1 above or by the NCC in imposing a disciplinary penalty, unless...
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