THE ROYAL SOCIETY FOR THE PREVENTION v OF CRUELTY TO ANIMALS [2001] EWHC 474 (Ch)

IN THE HIGH COURT OF JUSTICE

CHANCERY DIVISION

[2001] EWHC 474 (Ch)

Case No HC 2000 1695

Venue Royal Courts of Justice, Strand, London WC2A 2LL

Between

THE ROYAL SOCIETY FOR THE PREVENTION

OF CRUELTY TO ANIMALSClaimant

(1) HER MAJESTY'S ATTORNEY GENERAL

(2) RICHARD HANNAY MEADE

(3) NIGEL BARON VINSON OF RODDAM DENE

(4) GILLIAN ROSEMARY ATKINSONDefendants

Before

Mr Justice Lightman

Mr David Unwin QC & Ms Francesca Quint (Instructed by Messrs Nabarro Nathanson, 50 Stratton Street, London W1X 5FL) appeared on behalf of the Claimant.

Mr John Martin QC & Mr Michael Patchett-Joyce (Instructed by Messrs Charles Russell, Killowen House, Bayshill Road, Cheltenham, GL50 3AW) appeared on behalf of the Second, Third and Fourth Defendants.

Mr William Henderson (Instructed by the Treasury Solicitor, Queen Anne's Chambers, 28 Broadway, London SW1H 9JS)

appeared on behalf of the Attorney General

Hearing: 15th, 18th & 19th December 2000

Judgment: 26th January 2001

Date 26 January 2001

[1]INTRODUCTION These are charity proceedings commenced with the leave of the Charity Commissioners by the Royal Society for the Prevention of Cruelty to Animals ("the Society"), a registered charity. The Society has a long established policy opposing hunting with dogs ("the Policy on Hunting"). There have for some years been campaigns to persuade supporters of hunting to join the Society and together to bring about a change in the Policy on Hunting. The Society considers that these campaigns and the activities of members who join the Society for the purpose of bringing about a change in that policy in order to protect field sports (whether or not pursuant to such campaigns) are damaging to the Society and it wishes (if it lawfully can) to adopt:(1) a policy on membership ("the Membership Policy") which will enable the Society to remove and exclude these persons from the Society and

(2) an administratively convenient scheme for implementing the Membership Policy ("the Scheme"). Both the Membership Policy and the Scheme are highly contentious, and there is a dispute whether the Rules admit of their adoption and whether (if they do) the members of the Council as the governing body of the Society ("the Council") would be acting properly as charity trustees if they did adopt them. In these circumstances the Society seeks the guidance of the court: (a) to the construction of the relevant rules; and (b) whether it can adopt the Membership Policy and the Scheme. There is also raised as a preliminary issue the question whether existing members and applicants for membership who may be affected by the adoption or implementation of the Membership Policy and the Scheme have the necessary standing to raise questions as to their lawful character and to participate in these proceedings.

[2]The Society currently has about 1,400 life members and 53,200 annual members of whom 15,836 are joint members. (Couples living together as partners at the same address may apply for joint membership). To become a member it is necessary to sign a declaration of support for the objects of the Society. Membership subscriptions are not a significant source of income for the Society compared with gifts and legacies. Life membership for an individual costs £500 and for joint members £750. Annual membership costs £17.50 for an individual and £25 for joint members. The administrative costs of processing applications for membership means that the financial benefit to the Society is limited. The direct administrative costs to the Society of individual and joint members paying by cheque total £12.79 and £17.56 respectively in the first year of joining and £11.86 and £16.19 respectively in subsequent years. Legacies are the main source of income for the Society. In 1998, the year's legacy income was £26 million. The members elect the Council and can speak and express their views at Annual and Extraordinary General Meetings and on polls. If they disapprove of the policies adopted by the Council, they can vote in new members of the Council who will adopt different policies. The Council had delegated to its Supporters Care Department ("the Department") as an administrative function the processing of applications for membership.

[3]There are 25 members of the Council. They are charity trustees within the meaning of the Charities Act 1993. 15 of the 25 are elected by postal vote of members entitled to vote (one third of the 15 retire each year). 10 are elected regionally by the Society's local branches. These retire every third year. The Council formulates the Society's policies on animal welfare and decides on priorities for its work and expenditure. The Society's work is very broadly based and is carried out by a combination of paid staff and volunteers (who may be, but often are not, members of the Society). There are currently five priority areas: the inspectorate, companion animals, farm animals, alternative to laboratory animals and international work. In 1998 the Society investigated 124,374 cruelty complaints, leading to 3,114 convictions and 819 banning orders, and treated 180,095 animals. The Society has a long history of campaigning for changes and improvements in animal welfare including campaigns to support legislation. These started in 1826 with a petition to Parliament to abolish bull baiting. Since 1976 the Society has steadfastly maintained the Policy on Hunting which opposes all forms of hunting with dogs or other animals and supports moves to introduce and pass legislation banning foxhunting. The Policy on Hunting has been an issue on which over the years there has been recurrent conflict between members of the Society.

[4]The Policy on Hunting is strenuously opposed by the supporters of foxhunting, and these supporters include members of the Society and non-members who support the aims of the Society. The second defendant, Mr Meade, is an annual member of the Society and a former member of the Council who under the names (in 1996-7) of the Country Sports Animal Welfare Group ("CSAWG"), (in 1988) of the Animal Welfare Committee of the Countryside Alliance ("AWCCA") and (in and since 1998) of the Countryside Animal Welfare Group ("CAWG") has campaigned to change the Policy on Hunting and to this end has set out to recruit as new members of the Society persons who, as well as supporting the objects of the Society, are supporters of hunting with the object that these new members will vote at meetings of the Society to bring about the change to the Policy on Hunting which he wants. The Council is anxious to prevent campaigns to recruit supporters of hunting as new members for this specific purpose and pending the determination of the questions raised in this case has placed in abeyance some 600 applications for membership made in the period commencing in December 1999 and ending in March 2000. The third and fourth defendants are tow of such applicants. The Society joined the first defendant, the Attorney General, as a defendant to represent the interests of charity. The second to fourth defendants applied to be joined as defendants and were so joined on terms to which I will later refer. CONSTITUTION OF THE SOCIETY

[5]I turn to the constitution of the Society. The Society was founded in 1824 as an unincorporated association having as its objective "the mitigation of animal suffering and the promotion and expansion of the practice of humanity towards the inferior classes of animated beings": see the Recital to the Royal Society for the Prevention of Cruelty to Animals Act 1932 ("the 1932 Act"). By 1932 its membership had grown to over 7,500 and in that year by the 1932 Act (a Private Act) the Society was incorporated. The 1932 Act has been supplemented on administrative and investment matters by two later Acts passed in 1940 and 1958, neither of which is relevant. Section 4 of the 1932 Act provided:

"The objects of the Society shall be to promote kindness and to prevent or suppress cruelty to animals and to do all such lawful acts as the Society may consider to be conducive or incidental to the attainment of those objects."

[6]The Rules of the Society have undergone a series of changes over the years. A resolution at a general meeting is required for any change in the Rules. Since the history of a provision in the Rules can in rare cases be relevant on construction when the Rules are ambiguous or uncertain (see National Grid Plc v. Laws

(1997) PLR 157

at para 73), I shall shortly set out the history of the relevant provisions in the Rules, adding a few comments as I proceed.

[7]The 1932 Rules provided (in Rule IV) that the Council shall have the management of the Society which may delegate its powers and duties to a committee of the Council ("a Committee"). This continues to be the position under the current rules. The 1932 Rules further provided (in Rule III(1)) that a donation of £20 constituted the donor a life member and (in Rule III(2)) that the payment of an annual subscription of £1 constituted the subscriber an annual member. Rule III(3) placed a safeguard in respect of such donation or payment giving rise to automatic membership of the Society:

"(3) Provided always that the Council shall have power to refuse any donation or annual subscription at any time if the Council shall be of the opinion that it would not be advisable to accept such donation or subscription having regard to the objects of the Society and the Council shall not be under any obligation to give any reason for such refusal to the individual firm, corporation, association of persons or other body presenting the same"

Rule III(3) is the predecessor of the current rule (Rule III.7) whose meaning and effect lies at the heart of this dispute, but there are changes in the terms of the rule and the context. The effect of Rule III(3) was to confer on the Council a power delegable to a Committee not to accept a donor or subscriber as a life or annual member by refusing to accept the donation or subscription, but this power existed only so long as the donation or subscription had not been paid over and could only be exercised if the Council considered that it would not be advisable to accept the donation or subscription "having regard to the objects" (and not any policy) "of the Society". At that time there was no provision for automatic renewal of annual membership (first introduced in the January 1976 Rules): an existing annual member had to apply for membership in the succeeding year in the same way as a non-member and in this context Rule III.3 was clearly applicable on a renewal of annual membership. The words "at any time" made plain that a donation or subscription from an applicant for membership might be refused though a subscription had been accepted from him in previous years. Rule XXVIII, which is much in the same terms as the current rule, made provision for the expulsion of a member whose conduct was prejudicial to the interests of the Society.

[8]The 1964 Rules made no material change save that in Rule III(3) there was added to the words "shall have power to refuse" the words "and/or to return" (the wording in the current rule) and Rule III(6) provided that no persons should become a life or annual member under the age of 18. The amendment to Rule III(3) extended the power of the Council to refuse membership where the donation or subscription had been paid over: the Council could return it and such return had the same effect as if it had been refused.

[9]In 1973, Charles Sparrow QC conducted an inquiry into the affairs of the Society. It is plain from contemporary documents that Rule III(3) was viewed as exercisable to prevent any annual member renewing his membership: there was (as I have said) at the time no provision for automatic renewal. His report ("the Sparrow Report") made certain recommendations which the Society accepted and implemented.

[10]The January 1976 Rules made significant changes which are reflected in the current rules:

"III(1) (a) Completion of a form of application supplied by the Society for life membership and payment to headquarters of a subscription of £… shall, subject as hereinafter mentioned, constitute the applicant a life member of the Society as from the date his application shall in the absolute discretion of the Council have been accepted and his name entered on the register of members … (2) (a) Completion of a form of application supplied by the Society for annual membership and payment to headquarters of a subscription of £… shall subject as hereinafter mentioned constitute the applicant an annual member of the Society as from the date his application shall in the absolute discretion of the Council have been accepted and his name entered on the register of members… (b) Such person shall continue to be an annual member for twelve months from the date on which his application shall have been accepted an his name entered on the register of members and thereafter from year to year upon payment of the appropriate annual subscription … (6) The Council shall have power to refuse and/or to return any membership subscription at any time if the Council shall be of the opinion that it would not be advisable to accept or retain it. This power shall be exercised only by resolution of and after full consideration by the Council. (7) A member shall cease to be a member of the Society and his name shall be removed from the register of members (a) If his annual subscription is in arrear for three months. (b) If by notice in writing addressed to the Society he resigns his membership. (c) If he is removed from membership of the Society by the Council under powers conferred by the Rules. (d) If he becomes of unsound mind."

The significant changes effected were that there was no longer automatic membership upon payment of the subscription only to the power of the Council to refuse or return the subscription: there is conferred upon the Council an absolute discretion delegable to a Committee whether to accept the application for membership; the annual member is given a right to renewal of his membership upon payment of the appropriate subscription; and the delegable power of the Council to refuse to accept or to return a subscription becomes a non-delegable power exercisable subject to the important procedural safeguards in favour of the person affected. This fundamental change in the structure of the Rules (as it seems to me) renders it unhelpful when construing the relevant January 1976 and later Rules to have regard to the terms of their predecessors before 1976.

[11]The August 1976 Rules reduced the age for eligibility for membership to 17. Otherwise they made no relevant change.

[12]The August 1979 Rules added a provision to Rule III(1)(a) that the completed form of application should contain a declaration of support for the objects of the Society.

[13]The January 1983 and 1991 Rules made no material change.

[14]The current Rules were adopted in 1997 and will be referred to as "the Rules". The Rules (like their predecessors) provide for the management of the affairs of the Society as follows: "IV The Society shall be under the management of a Council hereinafter called the Council which shall subject to these Rules control the affairs, funds, property and proceedings of the Society and without prejudice to such general powers shall in particular have power – …4. To appoint Committees of the Council and to entrust to such Committees such powers and duties as the Council thinks fit… 5. To make Bye-laws (not inconsistent with these Rules) for the management of the affairs of the Society and the regulation of the proceedings of the Council and the Committees… By-laws made by the Council provide that the quorum for a meeting of a Committee of the Council shall be four.

[15]Rule III provides that the Society shall consist of life members, annual members, ex officio members and junior members. The sub-rules to this rule read (so far as material) as follows: "1. Life Members:(a) Completion of a form of application supplied by the Society for life membership, which form shall contain a declaration of support for the objects of the Society, and payment to Headquarters of a minimum subscription of two hundred and fifty pounds or such higher sum as may from time to time be determined by resolution of the Council shall, subject as hereinafter mentioned, constitute the applicant a life member of the Society as from the date his application shall in the absolute discretion of the Council have been accepted and his name entered on the register of members maintained at the Headquarters of the Society… 2. Annual Members (a) Completion of a form of application supplied by the Society for annual membership, which form shall contain a declaration of support for the objects of the Society, and a payment in whole or committed part to the National Charity, Registered Charity No 219099 of a minimum subscription of eight pounds or such higher sum as may from time to time be determined by resolution of the Council shall, subject as hereinafter mentioned, constitute the applicant an annual member of the Society as from the date his application shall in the absolute discretion of the Council have been accepted and his name entered on the register of members maintained at the Headquarters of the Society.

(b) such person shall continue to be an annual member for twelve months from the date on which his application shall have been accepted and his name entered on the register of members and thereafter from year to year upon payment in whole or committed part to the National Charity, Registered Charity No 219099 of the appropriate annual subscription provided that he shall not be entitled unless otherwise qualified to any of the rights and privileges of membership or speak or vote at any annual or extraordinary general meeting of the Society until three months after payment in whole or committed part (whichever is the case) of his first subscription. … 5. The Society may establish and maintain a junior membership in accordance with the arrangements from time to time approved by the Council provided that such arrangements shall not confer any privileges or rights in relation to the conduct of the affairs of the Society. 6. No person shall be eligible for membership, other than junior membership, of the Society who has not attained the age of seventeen years. 7. The Council shall have power to refuse and/or to return any membership subscription at any time if the Council shall be of the opinion that it would not be advisable to accept or retain it. This power shall be exercised only by resolution of and after full consideration by Council. 8. A member shall cease to be a member of the Society and his name shall be removed from the register of members, and he shall thereupon forfeit all rights and privileges of membership. (a) If his annual subscription is in arrear for three months. (b) If by notice in writing addressed to the Society he resigns his membership.

[16]Rule XI.16 provides:

"it shall be deemed conduct prejudicial to the interests of the Society if any officer or member of the Society or of any Branch at any time publicly misrepresents [the policy of the Society] in any communication of a public nature unless the said officer or member satisfied the Council that such misrepresentation was intentional or accidental…"

[17]Provision for the expulsion of members is made in Rule XXVIII which (so far as material) reads as follows:

"A member of the Society as defined by Rule III shall cease to be a member and shall thereupon forfeit all rights and privileges as such if his conduct, in the opinion of not less than two thirds of the members of the Council present and voting at a meeting of the Council, has been prejudicial to the interests of the Society provided that prior to such meeting reasonable notice in writing shall have been given to the member of the intention of the Council to consider his conduct and an opportunity afforded him to submit any explanation either personally or in writing… The members of any Committee of the Council which has recommended the Council to exercise the power contained in this Rule in any particular case shall not be entitled to vote when any resolution in that case is put to the Council."

In answer to a question raised before me I should make it clear (a) that conduct "prejudicial to the interests of the Society" for the purposes of Rule XXVIII is not confined to conduct so described in Rule XI.16; and (b) that the fact that the Rules deem the specified conduct as prejudicial does not mean that the Society could not have held it to be prejudicial in the absence of Rule XI.16: Rule XI.16 merely underlines the seriousness of such conduct and removes any possible doubt that it can trigger the exercise of the power of expulsion.

[18]For completeness I should add that in 1996 a resolution was passed to expand the declaration of support for and compliance with the objects of the Society required of applicants for membership to include a declaration that the applicant for membership does not participate in any activity which is considered by the Society to involve avoidable suffering to animals. Lloyd J. on the 31 st March 1999 held that this proposed rule change designed to require compliance with the Policy on Hunting was void for uncertainty. STATUS OF THE SECOND, THIRD AND FOURTH DEFENDANTS

[19]The first question which arises is the status of Mr Meade, Baron Vinson and Ms Atkinson in these proceedings. Each of them may be affected by the outcome of the proceedings. Mr Meade has been an annual member since 1970. He applied to be joined as a defendant and was made a defendant by a consent order dated the 5 th June 2000. Baron Vinson and Ms Atkinson are applicants for membership whose applications are being held in abeyance. They likewise applied to be joined, and by a consent order dated the 2 nd October 2000 they were also joined, but without prejudice to the right of the Society and the Attorney General to contend, if they wished to do so, that:(a) Baron Vinson and Ms Atkinson are not persons interested in the Society or persons who would have alright to complain to the court about their exclusion from membership irrespective of the reasons for exclusion and

(b) depending on the answer to (a) above, they should not be parties to the proceedings. In the case of all three added defendants (to whom I shall refer collectively as "the Added Defendants") all questions of costs were reserved.

[20]The question of the status of the Added Defendants may be of limited significance on this application, since at the hearing the Society and the Attorney General raised no objection to their full participation in the hearing. But in view of the request by the Society and the Attorney General that I should provide some guidance on this question in case it arises again in relation to the Society, I shall do so.

[21]The first issue is whether the Added Defendants are persons interested in the Society within the meaning of section 33(1) of the Charities Act 1993 and accordingly persons entitled (with the requisite permission of the Charity Commission) to commence charity proceedings challenging the propriety of any decision of the Society to remove them from membership or refuse them membership or renewal of membership. Section 33(1) provides that charity proceedings may be taken with reference to a charity either by the charity or by any of the charity trustees or by any person interested in the charity. In the case of In re Hampton Charity

[1989] 1 Ch 484

at 494 G, Nicholls LJ (giving judgment of the Court of Appeal) said as follows:

"If a person has an interest in securing the due administration of a trust materially greater than, or different from, that possessed by ordinary members of the public…, that interest may, depending on the circumstances, qualify him as a 'person interested'. It may do so because that may give him … 'some good reason for seeking to enforce the trusts of a charity or secure its due administration."

The circumstances referred to by Nicholls LJ include the particular respect in which the person in question is seeking to secure due administration: he may have the requisite interest in the due administration of the provisions of the trust e.g. in respect of his membership whilst at the same time having no such requisite interest in the due administration of provisions e.g. concerning the purchase or sale of land. The rule (like the parallel rule requiring the applicant for judicial review to have a sufficient interest) is not a technical rule of law, but a practical rule of justice affording a degree of flexibility responding to the facts of each particular case. The answer is clear in the case of Mr Meade. Rule III 2(b) makes provision for renewal of the membership of an annual member: the annual member has a special interest in the proper construction of that provision and of Rule III.7 and their due implementation so far as it may affect him. In respect of renewal he has an interest going beyond that of ordinary members of the public. He has likewise such an interest if the Council purported to exercise its power under Rule XXVIII to expel him. A life member also has such an interest in the construction and implementation of Rules III.7 and XXVIII so far as it may affect him. But I do not think that a disappointed applicant for membership has any such sufficient interest. Any member of the public is free to apply for membership: the exercise of that liberty cannot elevate the status of a non-member into that of a person interested. To extend the right of suit to any such applicant would be to cast the net too wide: consider Scott v. National Trust

[1998] 2 All ER 705

at 715g. I should add, in view of the suggestion by Mr Martin to the contrary, that it does not seem to me to be a factor of any significance on the issue of the status of the Added Defendants that in 1932 by a private Act the Society was transformed from being an unincorporated association into a corporate body. The fact that the Society is now constituted by an Act of Parliament does not give a member or prospective member any greater right of access to the court.

[22]The second issue is whether Baron Vinson and Ms Atkinson are able to challenge the Society's decision on their applications for membership in judicial review proceedings in the Administrative Court. It is well established that judicial review proceedings are inappropriate where the issue can be the subject matter of charity proceedings. The question raised is whether Baron Vinson and Ms Atkinson are able to bring judicial review proceedings if they do not have the necessary interest to bring charity proceedings. The answer to this question is in the negative. There is a serious question whether the Society is the sort of public body which is amenable to judicial review, most particularly in respect of decisions made in relation to its membership: consider Scott v. National Trust at p.716 F-G. The fact that a charity is by definition a public, as opposed to a private, trust means that the Trustees are subject to public law duties and judicial review is in general available to enforce performance of such duties. There is therefore a theoretical basis for allowing recourse to judicial review. It is also true that the Society is a very important charity and its activities (in particular the inspectorate and its prosecutions for cruelty to animals) are of great value to society. In particular its inspectorate is the largest non-Governmental law enforcement agency in England and Wales. But in carrying out these activities the Society is in law in no different position from that of any citizen or other organisation. Unlike the National Trust, the subject of consideration by Walker J. in Scott v. The National Trust above, the Society has no statutory or public law role. All I will say is that, though theoretically and in a proper case an application for judicial review may lie, it would not (at any rate in any ordinary case) lie at the instance of disappointed applicants for membership whose interest was insufficient to meet the statutory standard for the institution of charity proceedings. The statutory standard is laid down as a form of protection of charity trustees and the Administrative Court would rarely (if ever) be justified in allowing that protection to be circumvented by the expedient of commencing (in place of charity proceedings) judicial review proceedings. That does not mean that a disappointed applicant for membership is without recourse, for he can complain to the Charity Commission or the Attorney General and request them to take action.

[23]The third issue is the status of Baron Vinson and Ms Atkinson to participate in these proceedings. It is open to the court in any proceedings, and this includes charity proceedings commenced by the trustees of a charity, to permit persons interested in the widest sense of the term to be joined as parties and (whether or not so joined) to permit such persons to make representations to the court. That is the situation in this case. I have permitted counsel for the Added Defendants to address me and I have found their contribution of the greatest value. REFUSAL AND RETURN OF SUBSCRIPTIONS

[24]The second question is whether upon the true construction of Rule III.7 the Council is vested with power on repayment of the member's subscription to remove a life or annual member from membership and to refuse renewal of his membership by an annual member.

[25]The Rules have grown over the years like Topsy and the patchwork that exists today is a puzzle to construe. The overriding principle of construction must be, so far as the language used admits, (as may be presumed to have been intended by the draftsman) to make a coherent and sensible scheme by giving (so far as this is possible) effect to all of its provisions and avoiding any contradiction or logical inconsistency or any reading which deprives a provision of any legal effect.

[26]Rule III 2(a) in the case of an annual member (as Rule III.1 in case of a life member) provides that on completion of the application form and payment of the required subscription "subject as hereinafter mentioned" the applicant shall become a member as from the date the Council in its absolute discretion accepts the application and his name is entered on the register of members. On their face Rule III.1(a) and Rule III.2(a) provide that the applicant's membership is made subject to the later provisions in the Rules and to the exercise by the Council of an absolute discretion exercisable according to the best interests of the Society whether or not to accept his application. It is clear from the language of the Rules that the Council can delegate the exercise of this absolute discretion to a Committee. (I shall say something later on the power of delegation). On its face Rule III.2(b) provides that renewal of annual membership is automatic on payment of the required subscription. On its face Rule III(7) is a free-standing provision. It says nothing about the effect on membership of the exercise of the power conferred, but the required formalities attaching to the exercise of the power make it highly probable that it is not simply and solely concerned with individual repayments of subscriptions, but was intended to have a substantive effect on membership. It is common ground that the language of Rule III.7 precludes any delegation by the Council to a Committee of the exercise of the power conferred by Rule III.7: the Council must alone exercise it. To make sense of the provision it must be implicit in the decision to refuse or return subscriptions that there is the refusal of, or removal from, membership of the person whose subscription is refused or returned.

[27]The Society contend that Rule III.7 confers on the Council a free-standing right at any time to refuse to accept or (if paid) to return the subscription tendered or paid by a life or annual member, and in particular by an annual member exercising his right of renewal of his membership, and thereby remove him from membership. The Added Defendants contend that the rule is an addendum to, or qualification of, the absolute discretion of the Council to accept or refuse applications for membership stipulating how that discretion to refuse an application is to be exercised. I find answering this question exceptionally difficult. The second alternative involves holding that the Council itself must make the decision in every case where an application for membership is refused, a scarcely practicable and improbable scenario; it requires reading the words "subject as hereinafter contained" as a gloss, not on the provisions constituting the applicant a member (where the words are to be found), but on the provision conferring an absolute discretion on the Council to accept applications for membership (a provision to which the words have no such connection); and it imposes on the provision conferring on the Council a delegable absolute discretion whether to accept a member the qualification that the Council is not to refuse any application unless the Council itself decides that it is contrary to the interests of the Society to accept it. These appear to me to be the most serious obstacles to accepting this construction. When I turn to the Society's construction, I am troubled construing Rule III.7 as conferring on the Council a freestanding right to return life and annual members' subscriptions and to refuse to accept renewal subscriptions by annual members, for this is tantamount to conferring a power to remove them from membership without recourse to the expulsion provisions contained in rule XXVIII with the important safeguards there provided. I am also troubled that it means that the exercise of the power in respect of life members operates to require repayment of their entire subscription with no allowance for their membership to date.

[28]After anxious consideration I have concluded that Rule III.7 confers upon the Council (in addition to the absolute discretion conferred by Rule III.1 and 2(a) whether to accept any new applicant for life or annual membership) a power at any time to remove from membership and prevent the renewal of any annual membership by returning any subscription paid and refusing any subscription proffered. Rules III.1 and III.2 made plain that an applicant's life or annual membership constituted by payment of subscription and acceptance of his application for membership is "subject as hereinafter mentioned" and this must include being subject to Rule III.7; and though the formula "subject as hereinafter mentioned" is not to be found in Rule III.2(b), even as the yearly member's first year of membership is subject to Rule III.7, so must his annual membership in subsequent years. The possibility of removal from membership under Rule III.7 is an incident of annual membership whether original or renewed. The exercise by the Council of its power under Rule III.7 constitutes (for the purposes of Rule III.8(c)) the removal of the member from membership of the Society by the Council under a power conferred by the Rule III.7. It is of critical importance in this context to underline the procedural safeguards in respect of the exercise of this power which date back to the January 1976 Rules. Before this power can be exercised in respect of any member, the Council itself must give full consideration whether it would not be advisable to accept or retain the subscription and accordingly to continue that member's membership and must have passed a resolution to that effect. This procedure requires the Council as part of its full consideration to take into account any representations made to it by the individual to be removed from membership. The merit of each individual's case requires separate consideration as it does in the case and/or exercise of the parallel power under Rule XXVIII. The existence of these procedural safeguards, which do not fall far short of the safeguards provided by Rule XXVIII, provide comfort in reaching this conclusion. DELEGATION

[29]I have already said that the Council has no power to delegate any part of the decision-making under Rule III.7, in contrast with the power of the Council to delegate to a Committee its discretion whether to accept or reject an application for annual or life membership under Rules III.1 and 2(a). It is however important to recognise the limits under the Rules on this latter power of delegation to a Committee. The power is limited to delegating the exercise of the discretion to a Committee: the Council cannot delegate the discretion to anyone else (e.g. the Department) and the Committee has itself no power to delegate any discretion delegated to it by the Council. The Council (or a Committee as its delegate) can exercise its discretion by deciding to accept all applicants and giving instruction to this effect to the Department; it can lay down fixed criteria for acceptance or rejection which leave no discretion for the Department and require the Department to refer to the Council or a Committee all applications where a discretion (or judgment) has to be exercised. The administrative inconvenience occasioned by these constraints can be ameliorated. The Byelaws may be amended to reduce the quorum for a Committee to which the exercise of the powers and duties arising under rules III.1 and III.2(a) is delegated; or the Rules maybe changed to permit delegation by the Council of these powers and duties to another body or official (e.g. the Department). JURISDICTION OF THE COURT

[30]I must now turn to the question raised whether the court should on this application authorise the Council to exercise its powers under the Rules to exclude from membership in order to safeguard the Society from damage. There are three stages to be gone through. The first is to decide what is the proper approach of the court on this application for guidance. The second is to decide whether the Council can adopt the Membership Policy. The third is how far the Council can implement the Membership Policy by adopting the Scheme.

[31]I turn first to the question of the correct approach to be adopted by the court on this application for guidance and approval. There is a stream of authority to the effect there is a distinction between cases where trustees seek the approval by the court of a proposed exercise by them of their discretion and where they surrender their discretion to the court: see e.g. In re Allen Meyricks Will Trust

[1966] 1 WLR 499

at 503. In cases where there is a surrender, the court starts with a clean sheet and has an unfettered discretion to decide what it considers should be done in the best interests of the trust. In cases where there is no surrender, the primary focus of the court's attention must be on the views of the trustees and the exercise of discretion proposed by the trustees. Though not fettered by those views, the court is bound to lend weight to them unless tested and found wanting and it will not without good reason substitute its own view for those of the trustees. Mr Henderson for the Attorney General however submitted that there is no difference between the two solicitors and that in both cases the court is vested with the discretion previously vested in the trustees. In support of this proposition he relies on the speech of Lord Oliver in Marley v Mutual Security

[1991] 3 All ER 198

. In that case the trustees entered into a contract for sale whose binding effect was made conditional upon obtaining the prior approval of the court. The question raised for judicial guidance was rather the question of fact whether the price agreed was the best price reasonably obtainable than how a discretion should be exercised. Lord Oliver (giving opinion of the Privy Council) held that in that case the trustees had surrendered their discretion to the court and that the court in such a situation was engaged solely in considering what ought to be done in the best interests of the trust and the beneficiaries, and that for that purpose the parties were obliged to put before the court all the material appropriate to enable it to exercise that discretion. By the terms of the contract, the trustees reposed in the court the decision whether the price was such that the contract should become unconditional and be completed. No question arose as to the distinction between a case where there was a surrender of discretion (as was held to have occurred in that case) and a case where there is no such surrender. My view that Lord Oliver's speech lends no support to Mr Henderson's proposition accords with that expressed by Hart J. in Public Trustees v. Cooper (unreported 20 December 1999). I shall accordingly proceed on the basis that there is no surrender of discretion in this case and that my primary focus should be on the views of the Council and the exercise of discretion proposed by them. THE MEMBERSHIP POLICY

[32]The Council take the view that it is in the best interests of the Society to exclude from membership anyone whose application for membership is, was or in the future will be made for the real or predominant purpose to protect field sports for their own sake and not in order to promote animal welfare and that as a means of achieving this there should be excluded anyone whose application for membership is, was or in the future will be the result of a campaign by CAWG or any other pro-hunting body to recruit members of the Society. The Council accordingly propose to adopt the Membership Policy, that it should treat the existence of the purpose referred to or the fact of such recruitment as constituting grounds for not accepting the applicant as a member under Rules III(1)(a) and III(2)(a), for removing life and annual members from membership and for preventing renewal of annual membership under Rule III.7. (I shall consider later separately how the Council propose to implement the Membership Policy by use of the Scheme). The thinking of the Council lying behind the Membership Policy (as reduced to writing in the course of the hearing) is as follows:

"The Society exists for the purpose of its objects and not for the benefit of its members. The Society does not wish to have as members those who apply to join for an ulterior purpose in circumstances in which damage is being or likely to be caused to the Society. An applicant has an ulterior purpose if his/her real or predominant purpose for applying is to protect field sports for their own sake and not in order to promote animal welfare. Applying to join in response to a Campaign as defined in the Schedule to the Claim Form is evidence of such an ulterior purpose. Damage is caused by the Campaign itself and by those who join in response to it. The damage relied on is that set out in Mr Tomlinson's witness statement. The Society does not wish to exclude those who disagree with it, or wish to change, its policies, provided they are motivated by animal welfare reasons."

I shall refer to this writing as "the Policy Document".

[33]Mr Tomlinson's witness statement sets out the history of the Society's relationship with Mr Meade and the damage occasioned to the Society by campaigns orchestrated by him. Mr Meade has filed evidence in answer. The position may be stated as follows. Since early 1996 Mr Meade (either alone or with a few others) has under a variety of names led a campaign directed at persuading the Society to abandon the Policy on Hunting and expend its energies so released elsewhere, and as the means to this end has encouraged those who support hunting with dogs to join the Society and use their votes and voices as members to this end. The names he has used include the CSAWG, the AWCCA and the CAWG. It is the firmly held belief of Mr Meade and many others (including a substantial number of members of the Society) that the Policy on Hunting is highly damaging to the Society and that in particular it creates a divide between the Society and those concerned with the countryside. The debate between the two sides on the question whether the Society should abandon the Policy on Hunting has been acrimonious both within the Society and outside. So long as the policy on Hunting continues to be followed, this debate is likely to continue. I may add that no doubt, if the Society at any time abandoned the Policy on Hunting, that change would likewise be the catalyst for further equally acrimonious debate whether the Policy on Hunting should again be adopted.

[34]The Council consider that the campaigns and the activities pursued in advancement of the campaigns are damaging to the Society in four ways:(a) they damage the reputation of the Society, most particularly damaging being claims made in the course of the campaigns that the Society is in the hands of a small group of Animal Rights supporters and is no longer focused on its proper concerns of animal welfare;

(b) they hinder the work of the Society, most particularly by diluting the impact of the Society's support for a legislative ban on hunting, presenting the Society as divided as to the Policy on Hunting and obstructing the achievement by the Society of the goal of the Policy on Hunting, namely procuring the legislative ban;

(c) they lead to a waste of the Society's resources in countering the campaigns, and in particular answering unfair criticism, complaining about unfair advertisements or investigating the genuiness of applications for membership.

(d) the admission of new members, whose reason for joining the Society is to obstruct the widely supported Policy on Hunting, is calculated to damage the morale of members, volunteers and staff.

[35]The Added Defendants can, as it seems to me, argue with force that the Society is exaggerating the damage occasioned by the campaigns and underestimates the extent to which the damage of which the Society complains is attributable to the underlying public debate as to the merits of a ban on hunting; and that there is indeed a debate and division amongst members of the Society as to the merits of the Policy on Hunting the existence of which cannot and should not be covered up. It does appear to me to be questionable whether the damage to the Society as perceived by the Council will be greatly alleviated by the steps which the Council proposes to take. The division amongst the Society's membership on the Policy on Hunting will continue nonetheless, for the supporters of hunting include members who are outside the reach of the Council's proposals for exclusion. But having read the whole of the evidence I think that the material before me requires me to find that the Council has grounds (rightly or wrongly) for taking the view that the campaigns are damaging to the Society; that the Society is seriously at risk of damage caused by members whose overriding concern is to support hunting with animals and to change the Policy on Hunting; that the Society should take steps designed to protect itself from this damage; and that a step to this end would be to exclude from membership those members at whom the Membership Policy is directed. The Council can fairly take the view (which may or may not be correct) that this course is in the interests of the Society (amongst others) for two reasons:(1) the incentive for the conduct of campaigns may be seriously reduced if membership is withheld from applicants whom the campaigns persuade to apply for membership to further their objects; and

(2) the exclusion of members who join for this purpose may keep out those who as members would prove to be what the Council considers to be trouble makers.

[36]The powers of the Council to exclude from membership are conferred by Rule III.1 and III.2(a) (where the power is expressed to be exercisable at the absolute discretion of the Council) and by Rule III.7 (where the power is expressed in terms of a discretion exercisable "if the Council shall consider that it would not be advisable to accept or retain the subscription"). In both cases the powers are fiduciary and accordingly the obligation is upon the Council to exercise the powers for the purposes for which they are conferred in what they consider to be the best interests of the Society. I am satisfied that the Council is acting in good faith and in what it considers to be the best interests of the Society in deciding that it should adopt the Membership Policy. It seems to me that, if the Trustees honestly take this view and it is one which they can honestly and reasonably take, (subject only to one question to which I will next turn) this is a course which they are entitled to take and which I can and should endorse; see e.g. Gaiman v. National Association for Mental Health

[1971] Ch 317

[37]The one question which I must consider is whether this proposed course on the part of the Council is open to objection under the provisions of the Human Rights Act 1998 ("the HRA"). Mr Martin has submitted that the provisions of the HRA requires the Council in the exercise of its powers under the Rules to respect the human rights of members and applicants for membership, and most particularly their freedom of speech and thought; and the Rules must accordingly be read as prohibiting the adoption of the Membership Policy and the Scheme since they contravene those rights. I shall consider in turn the two avenues by which this conclusion is reached.(a) The first is Article 6(1) which makes it unlawful for a "public authority" to act in a way which is incompatible with a Convention right. Article 6(3) provides that "public authority" includes a court and any person certain of whose functions are of a public nature. Article 6(5) provides that a person is not a public authority by virtue only of Article 6(3) if the nature of the act is private. I do not think that section 6 of the HRA is of any assistance. The Society is not a public authority and has no public functions within the meaning of section 6 (see para 21 above); and in any event the acts in question relate to its regulation of membership and that is a private act within the meaning of section 6(5). The court is a public authority, but that status does not impinge on the question whether one party to the proceedings before it has a Convention right to which another party is bound to give effect. The court is bound to give effect to such a convention right if established: in this context that is the full extent to which the status of the court as a public authority is engaged.

(b) The second avenue is section 3 which requires that primary and subordinate legislation must be read and given effect in a way which is compatible with Convention rights. Section 21(1) provides that "subordinate legislation" means any: (f) order, rules, regulations, scheme, warrant, Byelaw or other instrument made under primary legislation." That section also provides that primary legislation includes a private Act. It is possible that the Rules constitute subordinate legislation within the meaning of section 3(1) of the HRA in so far as they are "an instrument made under primary legislation": and that accordingly they must so far as possible be read and given effect to in a way which is compatible with Convention rights. I have however some difficulty accepting that the Rules are the sort of "instrument" which the legislation was intended to cover. But in any event, the proposed use of the Rules is not directed at or calculated to interfere with the freedom of speech or thought of members or prospective members: both members and prospective members are left to think and say whatever they like. The Council by the Membership Policy is not concerned to muzzle members or applicants for membership or censor what they say or do. This is confirmed by the Policy Document. The Council reserve the right to invoke Rule XXVIII if the conduct of any members is such as to require the Council to invoke the power of expulsion, but that is not a matter of concern today. The proposed criterion for exclusion relates to the reason for joining the Society: the Society has a legitimate interest in excluding those whose reasons for joining may render their membership contrary to the interests of the Society. What really is in question in this case is not the freedom of speech or thought of members or applicants for membership, but the freedom of association under Article 11 of the Society itself: that freedom embraces the freedom to exclude from association those whose membership it honestly believes to be damaging to the interests of the Society: see Cheall v. UK (1985) 42 DR 178 at 185 and Gaiman at p.331 B-C. For these reasons the Rules do not require to be read as precluding adoption of the Membership Policy or Scheme: there is no ground for challenge to either of them or the underlying Rules of the Society on human rights grounds or other grounds. THE SCHEME

[38]I turn now to the Scheme which the Society proposes to adopt to implement the Membership Policy. The Society recognises the difficulty of carrying out an investigation into an individual's reasons for joining the Society. To have to determine whether a particular member had or has the Ulterior Purpose referred to in the Policy Document is very hard. It is for this reason that the Membership Policy extends to excluding those who joined as a result of a campaign. But even to investigate whether a member in fact did join or is joining as a result of a campaign has its difficulties. For this reason the Society wishes to implement the Membership Policy by adopting the Scheme which lays down as a convenient rule of thumb the principle that any existing member who at the date of his original application for membership fell, and any applicant for membership who now falls, within certain defined categories set out in a schedule to the amended Claim From maybe treated as falling within the class of persons to be excluded under the Membership Policy. The preference of the Council is to be able to treat the fact that in its opinion a person falls within one or more of the categories as conclusive that he falls within the class of persons to be excluded from membership under the Membership Policy without any need for consideration of the merits of any particular case. This means that no regard need be paid to any representations by the party affected that he does not fall within the category; that, (notwithstanding the fact that he does fall within a category), he does not meet the criterion for exclusion under the Membership Policy; or that otherwise he should not be excluded.

[39]The categories set out in the Schedule to the Claim Form reads as follows:

"Definitions In this Schedule the term 'a Campaign' means either of the following: (i) The CAWG Campaign: i.e. the current campaign organised by the Countryside Animal Welfare Group ('CAWG'), the immediate aim of which is to increase the number of country sports supporters who are members of the Society (including any attempt to recruit new members of the Society by an individual, body or group which supports the aims of CAWG). (ii) An Associated Campaign: i.e. a campaign organised by any individual, body or group, an aim of which is similar to the immediate aim of the CAWG Campaign, (including any attempt to recruit new members of the Society by an individual, body or group which supports such a campaign). Categories of Applications A. Where the application was made following a request for an application form made on a prepared pro forma which is associated with the Campaign. B. Where the application is received from a person who has made a statement, or on whose behalf a statement has been made, indicating that the application is being made in response to a Campaign. C. Where (a) it appears that the applicant is a member of the same family, or lives at the same address as an applicant whose application falls within either of the Categories A or B above or has been assisted to apply by such an applicant. and (b) the applications were made with three months of each other. D. Where the applicant or the person requesting the application form has an address in an area in respect of which there is evidence of a current local Campaign (which evidence may include an abnormal number of applications for the area). E. Where it appears that (a) the application is one of two or more applications made at the same time by members of the same family or by persons living at the same address or (b) a request was made by one person for two or more application forms and, in either case, (c) the request or application was made during a Campaign. F. Where it appears that (a) the request for the application form or the application itself was made during a Campaign. and (b) either the request or the application shares some unusual attribute or distinguishing feature in common with other requests or applications made in response to a Campaign. G. Where the application was made in response to a Campaign on the World Wide Web or by e-mail. H. Where it appears that the applicant (or one of them in the case of a joint application) is an official of a group which is conducting a Campaign either locally or nationally. I. Where the application is made by a person who has made an application for membership in the last 2 years which was refused by or on behalf of the Council as falling within one of the Categories A to H above."

I comment that the inference that a member or applicant who falls within a category had or has the ulterior purpose or joined or is joining as a result of a campaign is stronger in the case of some categories than others and in each case the inference may be displaced by evidence of the existence of some other explanation. Yet in each case the chance that a member or applicant in the view of the Society falls within a category without more entitles the Society to ban that person from membership for two years.

[40]It is in my view quite clear that the Council cannot apply the Scheme in the exercise of its powers under Rule III.7 and accordingly remove life or annual members or prevent the renewal of membership of annual members. As I have already said, Rule III.7 requires full consideration by the Council whether it would be inadvisable to accept or retain the subscription of the member in question and accordingly to allow his membership to continue. It is implicit in this provision that the full merits in respect of each member must be explored. The sole criterion is whether the continued membership of the individual in question is inadvisable, i.e. against the interests of the Society. For this purpose the Council is entitled to decide that it was inadvisable to renew membership of a person because he originally joined with the ulterior purpose or pursuant to a campaign if the Council consider that this single factor in the individual case in question justifies this extreme course and that there are no sufficient countervailing circumstances. The date that the member joined is highly relevant, in particular because the further back in history the date he joined, the more difficult it is likely to be to prove the necessary circumstances relating to his joinder, the less relevant those circumstances may be in deciding whether his continued membership is inadvisable and the harsher the impact on the member of removing his membership. But in deciding the individual case it cannot be sufficient that he member in question falls within any one of the categories. If he does so, this may (depending on the facts) constitute prima facie evidence of the existence of the ulterior purpose or that his membership resulted from a campaign. But the requirement for full consideration before the power is exercised to remove from membership must imply that the member will be afforded the opportunity to put forward his case (at least in writing) in respect of his categorisation, the existence of the ulterior purpose, whether he joined as the result of a campaign, the countervailing circumstances and whether his continued membership is advisable before the power under Rule III.7 can be exercised. I have the gravest doubt whether the expenditure of time, effort and costs required can ever justify the adoption of this procedure save in the most exceptional cases.

[41]I turn now to the question whether in the exercise of the absolute discretion conferred by Rule III.1 and III.2(b) to accept or refuse applications for membership the Council can apply the Scheme in respect of the admission of new members. I have already considered in paragraph 29 the extent of the power of delegation. In any particular case where a discretion has to be exercised the Council or Committee must make the decision. The question raised by the Society is whether the Council or Committee can treat the fact that an applicant falls within one of the categories or appears to fall in one of the categories as conclusive and should be under no obligation to give the applicant the opportunity to establish that he does not fall into the category in question, that his reason for joining is not one to which the Council objects or that in any event his membership application should be accepted. This draconian approach proposed by the Council is very much the first choice of the Council, for it has dual merits of the utmost simplicity and maximum economy in application. It is very much the Council's second choice to use the categories as giving rise only to a prima facie presumption of the existence of grounds for rejection of those who do, or appear to, fall within them on which the Society can act in the absence of rebutting evidence.

[42]I have given full weight to the first choice of the Council, but after long and anxious consideration I have concluded that it is not in the interests of the Society or conducive to its good name to adopt such an arbitrary and unattractive method of implementing the Membership Policy. To exclude from membership of this important charity persons to whom (if the full facts were allowed to be taken into account) no conceivable objection could be taken, persons who may not only contribute their subscriptions and services but leave legacies to the Society, must be a method of last resort. The significance of a decision to exclude is accentuated by the provision in the Scheme that any person whose application for membership is rejected is precluded from making a further application for two years. I have in mind that circumstances may arise where emergency action is required calling for the expulsion of a group of members which includes "the innocent" as well as "the guilty" e.g. where there is an imminent threat of a take-over or other irreparable damage: see e.g. Gaiman at p.339. But that is not the situation here. What is in question is a fully considered long term policy, and the plight of the "innocent" must take on greater weight when an alternative course is available. If the damage done to the Society by the admission of persons whom the Membership Policy is designed to exclude is such as to require measures to preclude them joining the Society, the extra cost and administrative inconvenience involved in adopting the Council's second choice must likewise be justified. In the context of a charity of the standing, size and substance of the Society, this should not prove in any way disproportionate, having in mind the critical importance of the public image and reputation of the Society for fairness and justice. That public image and reputation must be of critical importance to the success of the Society in particular in respect of its activities and its attraction of support (financial and otherwise). As I read the evidence in this case this important factor has not been taken into account or given any or any sufficient consideration or weight by the Council when making its choice of method of implementation of the Membership Policy. If the Membership Policy is to be adopted in respect of applicants for membership, they should be so informed in the application form or an accompanying document; they should be invited to state whether they fall within any of the categories from which inferences may be drawn; and if they fall within a category, they should be invited to give their reasons why nonetheless they should be admitted to membership. This does mean that a discretion will need to be exercised in any case where an application is refused. This course will meet the real risk of injustice arising from wrong categorisation and of a categorisation giving a false indication. There is a problem that under the Rules as they stand any exercise of discretion whether to admit or reject an applicant must be made by the Council or (as its delegate) a Committee. An amendment of the Rules is clearly called for enabling delegation e.g. to a Committee of less than four or to an executive employed by the Charity to discharge this function. I am far from clear that such an amendment is not called for as matters stand at present irrespective of the adoption of the Membership Policy. At the same time consideration should be given whether and how the Rules should be amended generally so that they no longer represent a patchwork of amendments over the years with the inevitable construction difficulties to which such a patchwork gives rise and whether the Society should adopt in their place a set of Rules which are clear and consistent and enable it to function effectively. *****

THE ROYAL SOCIETY FOR THE PREVENTION v OF CRUELTY TO ANIMALS [2001] EWHC 474 (Ch)

Cited in 2 later judgments