Wheeler v Leicester City Council
| Jurisdiction | England & Wales |
| Judge | Lord Roskill,Lord Bridge of Harwich,Lord Brightman,Lord Templeman,Lord Griffiths |
| Judgment Date | 25 July 1985 |
| Judgment citation (vLex) | [1985] UKHL J0725-2 |
| Date | 25 July 1985 |
| Court | House of Lords |
[1985] UKHL J0725-2
House of Lords
Lord Roskill
Lord Bridge of Harwich
Lord Brightman
Lord Templeman
Lord Griffiths
My Lords,
This is an appeal by members of the Leicester Football Club ("the club") suing on their own behalf and on behalf of all other members of the club. In reality it is an appeal by the club and I shall so treat it. It is brought by leave of the Court of Appeal (Ackner and Browne-Wilkinson L.JJ. and Sir George Waller) [1985] 2 All E.R. 151. That court on 14 March 1985, by a majority, Browne-Wilkinson L.J. dissenting, dismissed an appeal by the club against the refusal of Forbes J. on 27 September 1984 to grant the club judicial review of a decision by the respondents, Leicester City Council ("the council"), on 21 August 1984. That decision is recorded in minute 46 of the council's Policy and Resources Committee in the following terms:
" RESOLVED: that the Leicester Football Club be suspended from using the Welford Road recreation ground for a period of 12 months and that the situation be reviewed at the end of that period in the light of the club's attitude to sporting links with South Africa."
As a result of the passing of that resolution, the club applied for a judicial review of the decision for the purpose of quashing it, for a declaration that it was of no effect and for an injunction preventing (inter alia) the implementation of the resolution. On 10 September 1984 Otton J. gave the club leave to move for judicial review and, pending the hearing of the motion, granted the injunction sought. As already stated, Forbes J. refused the relief sought and since the appeal to the Court of Appeal failed, the club has remained banned from the use of the Welford Road recreation ground save for training purposes, this last by virtue of a concession later made by the council in circumstances to which I will refer in due course.
My Lords, the background to this unfortunate dispute between a rugby football club of renown, now over a century old, and the council is fully stated in the judgments below. I gratefully adopt those statements for in truth the relevant facts are not in dispute. But some reference to the facts is essential for the proper understanding of the issues involved.
The story starts with the announcement by the Rugby Football Union ("R.F.U.") on 30 March 1984 that they had accepted and invitation to take a touring side to South Africa. On 19 April 1984, the membership of this side was announced. The membership included three well known members of the club. All three were regular England players. It should be mentioned that the club does not have any direct representation on the R.F.U. It has one representative on the Leicestershire Rugby Union and the latter body has one representative on the main committee of the R.F.U.
On 11 April 1984 Mr. John Allen, the secretary and a former captain of the club, was telephoned by the assistant chief executive of the council and asked if representatives of the club would attend a meeting with Mr. Soulsby, the leader of the council in connection with the projected tour and the participation in it of the club's three members.
That meeting took place on 12 April 1984. Mr. Soulsby read out four questions. These four question had been recorded in writing but no copies were given to the club representatives at the meeting. Since I attach importance to the content of these four questions, both individually and collectively, I record them in full:
"1. Does the Leicester Football Club support the Government opposition to the tour?
2. Does the Leicester Football Club agree that the tour is an insult to the large proportion of the Leicester population?
3. Will the Leicester Football Club press the Rugby Football Union to call off the tour?
4. Will the Leicester Football Club press the players to pull out of the tour?"
Mr. Allen told Mr. Soulsby he would take the questions back to the committee of the club and would return for a further meeting on 8 May 1984. At that latter meeting it was made plain by Mr. Soulsby - Mr. Allen's affidavit was not contradicted on this matter - that "the club's response would only be acceptable if in effect all four questions were answered in the affirmative."
On 14 May 1984 Mr. Allen again wrote to Mr. Soulsby and handed him a written statement of the club's response. I set this out in full:
"Leicester Football Club have always enjoyed cordial relations with Leicester City Council on a strictly non-political basis and seek to continue that relationship. The club join with the council in condemning apartheid but recognise that there are differences of opinion over the way in which the barriers of apartheid can be broken down. The government have not declared sporting contacts illegal or even applied sanctions against those involved in tours. Their opposition is on an advisory basis, similar to the advice to athletes at the time of the Moscow Olympics, leaving the decision to the individuals concerned. The decision by the Rugby Football Union to approve the tour was taken by a large majority of their committee, but the club had forwarded to the Leicestershire Rugby Union, the club's constituent body, the anti-apartheid case against the tour, which merits serious consideration. Rugby Union players as amateur sportsmen have individual choice as to when and where they play, subject only to the constraints of R.F.U. rules and club loyalty. However, the club, having read the memorandum to the R.F.U., prepared by the anti-apartheid movement, and accepting the serious nature of its contents, have supplied copies to the tour players and asked them to seriously consider the contents before finally reaching a decision whether to tour. The club are and always have been multi-racial and will continue that principle for the benefit of Leicester and rugby football."
Mr. Soulsby said he noted the club's response but added that he did not think "it would have gone far enough to satisfy the membership of the controlling Labour group on the council."
This meeting was followed by various statements through the media and elsewhere that the council were considering sanctions against the club for what the council regarded as the club's failure to discourage its members from taking part in the South African tour.
No solution was found during the ensuing weeks. On 21 August 1984, the resolution banning the club from the use of the Welford Road recreation ground was passed in the terms which I have already mentioned. This resolution was subsequently notified to the club. Mr. Small, the club's solicitor and also one of its members, wrote on 30 August 1984 to ask whether the ban included a ban on using the recreation ground for training. A brief reply, dated 31 August 1984, indicated that the ban was intended to be total. The letter, over the signature of the assistant chief executive, included these sentences:
"It was and is the council's intention to prevent members of the Tigers training on the recreation ground in the evenings as well as banning the use of the rugby pitch for club matches. For the ban on training the council would seek to rely on Byelaw 16 of the Parks Byelaws and would maintain that the use of the recreation ground by the Tigers would per se interfere with other use of the recreation ground."
Mr. Small, whose evidence on this matter was not contradicted, was subsequently told by Mr. Stephenson that if the club tried to train on the ground the floodlighting would be disconnected and this would be effective to prevent training.
By the time the matter was before Forbes J. it was recognised that this reliance on Byelaw 16 was indefensible. I say no more about it save to express regret that the contention should ever have been advanced. Any defence of the council's action based on the Race Relations Act 1976, however well founded, could not possibly have extended to justify a ban on training, as Forbes J. pointed out.
The reasons for the imposition of the ban are clearly set out in paragraph 13 of Mr. Soulsby's affidavit. I quote that paragraph in full:
"I refute any suggestion that the purported sanction against the club was imposed in response to the actions of their players. I wish to make it clear that the action taken by the council was in response to the attitude taken by the club in failing to condemn the tour and to discourage its members from playing. The council has taken its steps therefore because of what the club did or did not do. It was always recognised that the club were not in the position of employers and could not instruct their players. However, the club is, as the applicants' evidence shows, a premier rugby football club and an influential member of the Rugby Football Union. At no time was the club asked to do anything by the city council which was beyond their powers to do. The steps taken by the city council have not been taken in order to penalise the club for having members who went to South Africa, still less, to penalise the club in order to penalise the players."
It is important to emphasise that there was nothing illegal in the action of the three members in joining the tour. The Government policy recorded in the well known Gleneagles agreement has never been given the force of law at the instance of any Government, whatever its political complexion, and a person who acts otherwise than in accordance with the principles of that agreement, commits no offence even though he may by his action earn the moral disapprobation of large numbers of his fellow citizens. That the club condemns apartheid, as does the council, admits of no doubt. But the council's actions against the club were not taken, as already pointed out, because the club took no action against its three members. They were taken, according to Mr. Soulsby, because the club failed to...
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