A Critique of the Disciplinary Rules of the Labour Party by

Duncan Shipley Dalton LL.B(Hons) LL.M CPLS MPA (Harvard) Barrister-at-Law  Labour member Southampton Itchen CLP

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General Assessment of the Disciplinary Rules of the Labour Party.

To examine this I will firstly outline the general legal principles involved and some relevant case law.

The Labour Party in law is an Unincorporated Association (UA). This means the relationship between members is one of contract and the terms of that contract are contained in the Rules of the unincorporated association. It has been recognised by the Courts that the power to discipline or expel members is necessary for the due administration and harmonious working of an association.1

However it is established law that no men may sit in judgement of each other outside the law courts unless Parliament so provides or the parties agree.2

Therefore the key issue is one of the expressly stated rules of the association and any disciplinary action that is imposed on a member of an association is entirely dependent on the party rules. Penalties should be specified in the rules and can include suspension, expulsion, a fine, or community service in the association. The rules must identify if suspension is a penalty. Suspension for investigatory purposes is not a penalty and is not governed by the general legal principles in relation to the operation of disciplinary rules in an unincorporated association.3

It is a serious matter for a member to be expelled from an association as it represents the termination of the member’s contractual rights and the removal of contractual benefits from the member may be a significant loss.4

To call a member to a disciplinary tribunal is frequently to question the good character of that member. It is therefore a very serious matter, particularly where the member has been part of the association for many years5 or when the individual’s livelihood relies upon such membership.6

The authority of a domestic disciplinary tribunal is derived from the association’s rules and may be express or implied.7 A disciplinary tribunal of an unincorporated association is a private domestic tribunal and not a public judicial tribunal. It is responsible for deciding questions of fact but cannot conclusively decide questions of law. If the rules attempt to specify the tribunal is the final arbiter of matters of law, then such rule would be void as contrary to public policy as only the law courts can be final arbiters of matters of law.8

Any rule relating to discipline should be framed in plain and unambiguous language. The most common ground is conduct detrimental or injurious to the character or interests of the association.9 Where the rules authorise disciplinary action, they should also state the grounds on which a member can be disciplined.

The contractual authority to discipline and expel a member of an association is limited by public policy.10 Where the power exists for members to be expelled, that power must be exercised in strict accordance with the conditions imposed by the rules of the association and natural justice.11 Where no written rules exist, a contract may be implied by custom, practice, and consent in order to establish consensual agreement to the jurisdiction of a disciplinary tribunal.12 This would be subject to the public policy requirement for a process according to natural justice.

The rules should contain express provisions for disciplinary procedures. They may define membership of a standing disciplinary committee or tribunal or state how a tribunal is to be established ad hoc. Through the domestic disciplinary tribunal, the association must make a full enquiry into the allegation and determine whether it is proven and merits disciplinary sanction. Proof is on the balance of probability, which should be expressly stated in the rules.

Natural Justice.

The power to expel or otherwise discipline a member of an association so that the member loses rights and benefits of membership, must be exercised in good faith and for the benefit of the association.13 The procedure must be in strict accordance with the rules and natural justice.14 A domestic disciplinary tribunal is not bound by the strict rules of a court of law but common law has established 3 points of natural justice that are applicable to domestic disciplinary tribunals.

  1. The accused member should receive notice of the charges so that he may consider and prepare his defence.
  2. He must be afforded a fair opportunity of saying something in his defence.15
  3. The rule against bias.

If the proceedings do not comply with natural justice, they are void and an expelled member continues to be a member of the association.16 Natural justice is based on fairness and the duty to act fairly extends not just to the disciplined member, but also to any appointed representative of the member and anybody negatively affected by the disciplinary proceedings.17 Fairness as implied by law, should pervade every aspect of the proceedings, whatever the wording of the rules of the association.18

Notice.

Notice of the allegation must be given to the member, detailing the procedural arrangements for a disciplinary hearing.19Failure to provide this notice will render disciplinary proceedings invalid.20 Any notice should provide a clear and sufficiently detailed statement of the alleged offending behaviour.21 The statement should cover the nature of the matters to be determined, although it is not required to give specific details of every instance where the offending behaviour was repeated on different occasions.22 It is not sufficient that a member is given notice of one ground of alleged misdemeanour only to attend the tribunal and be expelled on another ground of which no notice was given.23 The statement must be sufficient so as to allow the member to prepare a defence. This principle applies equally to any appeal process.24 Any notice should be sent in time to allow the opportunity of responding, requesting a different meeting date or communicating views to the association before the hearing.

Audi alteram partem.“let the other side be heard as well”

A member cannot be disciplined without the opportunity of being heard in his defence.25 Any rule or practice of an association to the contrary, being against natural justice, would be invalid.26 The requirement may be satisfied by either oral or written submissions.27 The tribunal has a duty not to convict a person of a grave offence which may lead to expulsion, without allowing that member a fair opportunity to meet the charge.28

The disciplined person need not personally represent himself, but this is at the discretion of the tribunal.29 In exercising this discretion, the tribunal should take into account the severity of the offence and the potential penalties. The tribunal should also take into account whether the member can reasonably represent himself or requires assistance. The rules may allow for legal or other representation.

Nemo judex in sua causa. – “no-one should be a judge in his own cause.”

A member of the tribunal must be unbiased and impartial,30 so cannot also be an accuser or a member of a group that is the accuser. Determining bias is a question of fact. The member must be shown to be actually biased, suspicion is not sufficient.31 A disciplinary tribunal owes no duty of care in negligence to the member whilst investigating the allegation32 and no tort of malicious prosecution is available.33 There is no rule of law or natural justice that prevents a tribunal member sitting on a panel at first instance and at any subsequent appeal.34

The Tribunal.

The tribunal must correctly identify its jurisdiction according to the rules of the association. It is bound by the rules and can only apply punishment accordingly.35 The tribunal cannot investigate matters which naturally fall outside its ambit.36 It is the duty of the tribunal to ensure proper procedure is used in the discipline of a member, in strict accordance with the rules.37 The tribunal must adhere to natural justice and ensure it has a proper understanding of the issues and evidence and gives a proper interpretation on any legal matters arising.

Domestic disciplinary tribunals are not legal proceedings and may be less formal than a court.38 It has no power to administer an oath or to compel the attendance of witnesses. It is not bound by the rules of evidence e.g. rule against hearsay evidence.39 Notwithstanding this the requirements of the hearing are dependant on the nature of the enquiry, the rules under which it acts and the nature of the subject matter. The overriding factor should be natural justice. The member is still to be given a fair opportunity to have their say, ask questions and present evidence. The principle is one of fairness.

The Decision.

The tribunal must reach a decision and its duty is to decide whether in its honest opinion they believe the member did commit the offence and ought to be punished.40 Once this decision is reached then if the offence is proven the tribunal has absolute discretion to decide whether to expel or otherwise punish the member but the tribunal must not be capricious or arbitrary or introduce malice or bad faith into a decision to expel a member.41

The courts maintain a supervisory jurisdiction in regard to procedural fairness but also to the proportionality of any punishment. The court will consider if the decision falls within the limits of the decision maker’s discretionary area of judgement. The courts are loath to interfere in this regard however.42

The tribunal must state its decision in words that are honestly intended and convey their meaning to those who understand the terms and the jurisdiction being exercised.43 There is no absolute requirement to give reasons for the decision merely to inform the member of the result.44 However the circumstances may give rise to a need for reasons as a matter of fairness.45 E.g. Where a person’s reputation may be significantly affected or where the decision appears aberrant and subject to legal challenge.46 If the rules permit an appeal then an expelled member technically remains a member pending appeal but the rules can deprive them of any membership rights until the appeal is concluded.47

Appeals.

There is no requirement but an association may in its rules provide for a right to appeal. The grounds of appeal are dependent on the rules of the association. Any internal appeal retains the status of a domestic disciplinary tribunal and has the same requirements of natural justice, fairness and the observance of contractual rights.48

If the rules provide for an appeal the disciplined member does not forfeit any legal entitlement to claim in the courts for breach of contract even if they first take up the internal appeal process.49 The member retains the right to enforce the contract in court before exhausting all possible remedies provided within the rules of the association.50 However the courts will direct a member to exhaust an internal appeals procedure before application to the courts if the rules expressly require it.51

The courts will consider both the initial disciplinary process and the internal appeal in order to determine if the process was fair. If the initial proceedings would have failed for want of natural justice but the internal appeals process corrected the failure the courts will not interfere.52

If not evident from the rules that an internal appeal is obligatory before application to the court or where the internal appeal process has been completed a member may apply to the court. It remains the members right to claim for breach of contract.

The court will in general not interfere with the decisions of domestic disciplinary tribunals of private associations unless the tribunal has acted ultra vires53 or in breach of the principles of natural justice. The courts will generally not interfere with the disputes resolution mechanism of unincorporated associations which includes an appeal where provided by the rules.54 The courts will not act as an appeal from valid decisions of these associations.55 Decisions of private unincorporated associations are not subject to judicial review.

The court will not consider the decisions of tribunals which were properly constituted and properly summoned.56 The court will act to ensure that the correct procedure was applied and will only interfere where correct procedure has not been followed.57

Or where an action by the associations tribunal has been contrary to natural justice.58 The court will consider whether (1) the rules have been observed, (2) the claimant has been given a fair hearing and treated in accordance with natural justice, (3) the tribunal acted in good faith.59 And was unaffected by bias.60 The courts involvement is no more intensive than the standard for reviewing a contractual claim.61

The court will not go behind the factual decisions of the tribunal unless it can be shown there is no evidence on which the tribunal could base its decision, in which case the tribunal has acted ultra vires.62 The court will consider disputes arising from a misunderstanding of the legal requirements of a domestic disciplinary tribunal, an incorrect legal interpretation of the words and phrases in the associations rules63 or an incorrect interpretation of any legal policy. If material the effect of such an incorrect interpretation is that the disciplinary proceedings are irregular as being contrary to the rules of the association and the elementary principles of justice.64 Such misunderstandings in the legal interpretation of the rules by an association will be corrected such as where an association seeks to expel a member for a reason not prescribed in the rules.65

Human Rights.

The provisions of the Human Rights Act 1998 and the European Convention for the Protection of Human Rights and Fundamental Freedoms (ECHR) are not applicable to domestic disciplinary tribunals established by unincorporated associations because such associations are not public authorities under s.6(1) of the 1998 Act. However, as the courts are public authorities under the definition in s.6(3) of the 1998 Act then a court in hearing a case relating to the proceedings of any domestic disciplinary tribunal it is bound to give effect to the convention rights of the parties as far as its own proceedings are concerned.66

1 Andrews v Mitchell [1905] AC 78 (HL) 82 Lord Davey.

2 Lee v Showman’s Guild of Great Britain [1952] 2 QB 329 (CA) 341 Denning LJ; Abbott v Sullivan and Others [1952] 1 KB 189 (CA).

3 Lewis v Heffer [1978] 1 WLR 1061 (CA)

4 John v Rees [1970] Ch 345 (Ch) 397.

5 Andrews v Mitchell [1905] AC 78 (HL) 82 Lord Davey.

6 Chapman v Lord Ellesmere and Others [1932] 2 KB 431 (CA); Allbutt v General Council of Medical Education and Registration (1889) 23 QBD 400 (CA)

7 Lee v Showman’s Guild of Great Britain [1952] 2 QB 329 (CA) 341 Denning LJ.

8 Lee v Showman’s Guild of Great Britain [1952] 2 QB 329 (CA) 341; Czarnikow & Co Ltd v Roth, Schmidt & Co [1922] 2 KB 478 (CA) 488; Re Raven [1915] 1 Ch 673 (Ch); Re Wynn [1952] Ch 271 (Ch).

9 cf RSPCA v AG [2002] 1 WLR 448 (Ch).

10 Lee v Showman’s Guild of Great Britain [1952] 2 QB 329 (CA) 341 Denning LJ.

11 Annamuthodo v Oilfields Workers’ Trade Union [1961] AC 945 (PC)

12 Abbott v Sullivan and Others [1952] 1 KB 189 (CA).

13 Tantussi v Molli and Others (1886) 2 TLR 731 (QBD).

14 Andrews v Mitchell [1905] AC 78 (HL) 82 Lord Davey.

15 Davis v Carew-Pole & Others [1956] 1 WLR 833, 383 (Pilcher J); Wood v Woad (1874) LR 9 Ex 190, 196.

16 Ridge v Baldwin [1964] AC 40 (HL) 70-1 (Lord Reid); Lapointe v L’Association de Bienfaisance et de Retraite de la Police de Montreal [1906] AC 535 (PC).

17 R v Lautro, ex p Ross [1993] QB 17 (CA).

18 John v Rees [1970] Ch 345 (Ch) 397.

19 Fisher v Keane (1878) 11 Ch D 353 (Ch).

20 cf Leary v National Union of Vehicle Builders [1971] Ch 34 (Ch).

21 Andrews v Salmon (1888) 4 TLR 490 (Ch).

22 Davis v Carew-Pole & Others [1956] 1 WLR 833.

23 Andrews v Mitchell [1905] AC 78 (HL) 82 Lord Davey.

24 Hiles v Amalgamated Society of Woodworkers [1968] Ch 440 (Ch).

25 Wood v Woad (1874) LR 9 Ex 190, 196; Lapointe v L’Association de Bienfaisance et de Retraite de la Police de Montreal [1906] AC 535 (PC).

26 Abbott v Sullivan and Others [1952] 1 KB 189 (CA).

27 R v Amphlett (Judge) [1915] 2 KB 223; R v Deputy Industrial Injuries Commissioner, ex p Moore [1965] 1 QB 456 (CA).

28 Fisher v Keane (1878) 11 Ch D 353 (Ch).

29 Maynard v Osmond [1976] 3 WLR 711 (CA).

30 Law v Chartered Institute of Patent Agents [1919] 2 Ch 276 (Ch) 289 (Eve J).

31 Allinson v General Council of Medical Education [1894] 1 QB 750 (CA); Leeson v General Council of medical Education (1890) 43 Ch D 366 (CA) 379 (Cotton LJ); Taylor v National Union of Seamen [1967] 1 WLR 532 {Ch}; Law v Chartered Institute of Patents Agents [1919] 2 Ch 276 (Ch); Diamond v Mansfield, Etherington, Price and Mallon [2006] EWHC 3290 (QBD).

32 Allinson v General Council of Medical Education [1894] 1 QB 750 (CA).

33 Gregory v Portsmouth City Council [2000] 1 AC 419 (HL); Diamond v Mansfield, Etherington, Price and Mallon [2006] EWHC 3290 (QBD)

34 Hamlet v General Municipal Boilermakers and Allied Trades Union [1987] ICR 150 (Ch) 155-7 (Harmon J).

35 Davis v Carew-Pole & Others [1956] 1 WLR 833.

36 Lapointe v L’Association de Bienfaisance et de Retraite de la Police de Montreal [1906] AC 535 (PC).

37 Andrews v Mitchell [1905] AC 78 (HL) 82 Lord Davey; Lee v Showman’s Guild of Great Britain [1952] 2 QB 329 (CA) 341 Denning LJ; Davis v Carew-Pole & Others [1956] 1 WLR 833.

38 Russell v Duke of Norfolk [1949] 1 All ER 109 (CA) 117.

39 Maclean v The Workers Union [1929] 1 Ch 602 (Ch) 620-1.

40 Chapman v Lord Ellesmere and Others [1932] 2 KB 431 (CA).

41 Inderwick v Snell (1850) 2 Mac & G 216, 42 ER 83.

42 Flaherty v The National Greyhound Racing Club Limited [2005] EWCA Civ 117.

43 Chapman v Lord Ellesmere and Others [1932] 2 KB 431 (CA).

44 Weinberger v Inglis [1919] AC 606 (HL) 616.

45 R v City of London Corporation ex p Matson [1997] 1 WLR 765 (CA) 776 (Neill L.J).

46 R v City of London Corporation ex p Matson [1997] 1 WLR 765 (CA) 776 (Neill L.J).

47 Braithwaite v Electrical Electronic and Telecommunications Union-plumbing Trades Union [1969] 2 All ER 859 (CA).

48 Taylor v National Union of Seamen [1967] 1 WLR 532 (Ch).

49 Annamuthodo v Oilfields Workers’ Trade Union [1961] AC 945 (PC).

50 Enderby Town Football Club Ltd v Football Association Ltd [1971] Ch 591 (CA); Lawlor v Union of Post Office Workers [1965] Ch 712 (Ch) 733-4; Dickson v Pharmaceutical Society of Great Britain [1967] Ch 708 (CA) 740, and [1970] AC 403(HL) 433 Lord Upjohn.

51 White and Others v Kuzych [1951] AC 585 (JC) 601 (Lord Simon).

52 Calvin v Carr and Others [1980] AC 574 (PC).

53 Lee v Showman’s Guild of Great Britain [1952] 2 QB 329 (CA) 341 Denning LJ.

54 Modahl v British Athletic Federation [2002] 1 WLR 1192 (CA).

55 Dawkins v Antrobus (1879) 17 Ch D 615 (CA).

56 Young v Ladies Imperial Club Limited [1920] 2 KB 523 (CA) 527 (Lord Sterndale).

57 Lee v Showman’s Guild of Great Britain [1952] 2 QB 329 (CA) 341 Denning LJ; Labouchere v Earl of Wharncliffe (1879) 13 Ch D 346 (Ch); Dawkins v Antrobus (1879) 17 Ch D 615 (CA).

58 Young v Ladies Imperial Club Limited [1920] 2 KB 523 (CA) 527; Leeson v General Council of Medical Education (1890) 43 Ch D 366 (CA); R v Chief Rabbi of the United Hebrew Congregation of Great Britain and the Commonwealth, ex p Wachman [1992] 1 WLR 1036 (QBD). The principles stated in R v Panel on Take-Overs and Mergers, ex p Datafin Plc [1987] QB 815 (CA) were applied; Inderwick v Snell (1850) 2 Mac & G 216, 42 ER 83.; Dawkins v Antrobus (1879) 17 Ch D 615 (CA).

59 cf Lamberton v Thorpe (1929) 45 TLR 420 (Ch); Baird v Wells (1890) 44 Ch D 661 (Ch) 670.

60 Modahl v British Athletic Federation [2002] 1 WLR 1192 (CA).

61 Bradley v Jockey Club [2005] EWCA Civ 1056 CA (Civ), [2004] EWHC 2164; Abbott v Sullivan and Others [1952] 1 KB 189 (CA).

62 Lee v Showman’s Guild of Great Britain [1952] 2 QB 329 (CA) 341 Denning LJ; Maclean v The Workers Union [1929] 1 Ch 602 (Ch) 620-1.; Amalgamated Society of Carpenters, Cabinet Makers and Joiners v Braithwaithe and Others [1922] 2 AC 440 (HL).; Leeson v General Council of Medical Education (1890) 43 Ch D 366 (CA); Allinson v General Council of Medical Education [1894] 1 QB 750 (CA).

63 Enderby Town Football Club Ltd v Football Association Ltd [1971] Ch 591 (CA); Lawlor v Union of Post Office Workers [1965] Ch 712 (Ch) 733-4; Dickson v Pharmaceutical Society of Great Britain [1967] Ch 708 (CA) 740, and [1970] AC 403(HL) 433 Lord Upjohn.

64 Lapointe v L’Association de Bienfaisance et de Retraite de la Police de Montreal [1906] AC 535 (PC).

65 Annamuthodo v Oilfields Workers’ Trade Union [1961] AC 945 (PC).

66 Paul Stretford v The Football Association Ltd [2006] EWHC 479 (Ch); aff’d [2007] EWCA Civ 238, (2007) Bus LR 1052, (20076) Lloyd’s Rep 31.